Federal Court Interpretation of the First Amendment Vol. 1
Table of Contents
Schenck v United States
1
Abrams v United States
5
Gitlow v People of the State of New York
14
Whitney v People of the State of California
26
Dennis v United States
30
Yates v United States
81
Brandenburg v Ohio
108
Hess v Indiana
116
Prior Restraints
Near v State of Minnesota
120
New York Times Company v United States
140
United States v Progressives, Inc.
167
Nebraska Press Ass’n v Stuart
180
United States v Noriega
184
Chaplinsky v State of New Hampshire
192
Tinker v Des Moines School District
196
Cohan v California
209
Texas v Johnson
216
United States v Eichman
240
R.A.V. Petitioner v City of St. Paul, MN
249
0
SUPREME COURT OF THE UNITED STATES
249 U.S. 47
Schenck v. United States
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Argued: January 9, 10, 1919 --- Decided: March 3, 1919
Evidence held sufficient to connect the defendants with the mailing of
printed circulars in pursuance of a conspiracy to obstruct the recruiting and
enlistment service, contrary to the Espionage Act of June 15, 1917. P 49.
[p48]
Incriminating document seized under a search warrant directed against a
Socialist headquarters, held admissible in evidence, consistently with the
Fourth and Fifth Amendment, in a criminal prosecution against the general
secretary of a Socialist party, who had charge of the office. P. 50.
Words which, ordinarily and in many places, would be within the freedom of
speech protected by the First Amendment may become subject to
prohibition when of such a nature and used in such circumstances a to
create a clear and present danger that they will bring about the substantive
evils which Congress has a right to prevent. The character of every act
depends upon the circumstances in which it is done. P. 51.
A conspiracy to circulate among men called and accepted for military service
under the Selective Service Act of May 18, 1917, a circular tending to
influence them to obstruct the draft, with the intent to effect that result, and
followed by the sending of such circulars, is within the power of Congress to
punish, and is punishable under the Espionage Act, § 4, although
unsuccessful. P. 52.
The word "recruiting," as used in the Espionage Act, § 3, means the gaining
of fresh supplies of men for the military forces, as well by draft a otherwise.
P. 52
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40
Stat. 553, did not affect the prosecution of offenses under the former. P. 53.
Affirmed.
The case is stated in the opinion
1
U.S. Supreme Court
SCHENCK v. U.S. , 249 U.S. 47 (1919)
249 U.S. 47
SCHENCK
v.
UNITED STATES.
BAER
v.
SAME.
Nos. 437, 438.
Argued Jan. 9 and 10, 1919.
Decided March 3, 1919.
[249 U.S. 47, 48] Messrs. Henry John Nelson and Henry Johns Gibbons, both of Philadelphia, Pa., for
plaintiffs in error.
Mr. John Lord O'Brian, of Buffalo, N. Y., for the United States.
Mr. Justice HOLMES delivered the opinion of the Court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June
15, 1917, c. 30, tit. 1, 3, 40 Stat. 217, 219 (Comp. St. 1918, 10212c), by causing and attempting [249 U.S.
47, 49] to cause insubordination, &c., in the military and naval forces of the United States, and to
obstruct the recruiting and enlistment service of the United States, when the United States was at war
with the German Empire, to-wit, that the defendant wilfully conspired to have printed and circulated to
men who had been called and accepted for military service under the Act of May 18, 1917, c. 15, 40 Stat.
76 (Comp. St. 1918, 2044a-2044k), a document set forth and alleged to be calculated to cause such
insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in
the distribution of the document set forth. The second count alleges a conspiracy to commit an offense
against the United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable by title 12, 2, of the Act of June 15, 1917 (Comp. St. 1918, 10401b), to-wit, the above
mentioned document, with an averment of the same overt acts. The third count charges an unlawful use
of the mails for the transmission of the same matter and otherwise as above. The defendants were
found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress
to make any law abridging the freedom of speech, or of the press, and bringing the case here on that
ground have argued some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was
concerned in sending the documents. According to the testimony Schenck said he was general secretary
of the Socialist party and had charge of the Socialist headquarters from which the documents were sent.
He identified a book found there as the minutes of the Executive Committee of the party. The book
showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one
2
of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck
personally attended to the printing. On [249 U.S. 47, 50] August 20 the general secretary's report said
'Obtained new leaflets from printer and started work addressing envelopes' &c.; and there was a resolve
that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about
fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which
he said were printed on the other side of the one sided circular and were there for distribution. Other
copies were proved to have been sent through the mails to drafted men. Without going into
confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was
largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that
she was a member of the Executive Board and that the minutes of its transactions were hers. The
argument as to the sufficiency of the evidence that the defendants conspired to send the documents
only impairs the seriousness of the real defence.
It is objected that the documentary evidence was not admissible because obtained upon a search
warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U.S. 585 , 24 Sup.
Ct. 372; Weeks v. United States, 232 U.S. 383, 395 , 396 S., 34 Sup. Ct. 341, L. R. A. 1915B, 834, Ann. Cas.
1915C, 1177. The search warrant did not issue against the defendant but against the Socialist
headquarters at 1326 Arch street and it would seem that the documents technically were not even in
the defendants' possession. See Johnson v. United States, 228 U.S. 457 , 33 Sup. Ct. 572, 47 L. R. A. ( N.
S.) 263. Notwithstanding some protest in argument the notion that evidence even directly proceeding
from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly
unsound. Holt v. United States, 218 U.S. 245, 252 , 253 S., 31 Sup. Ct. 2
The document in question upon its first printed side recited the first section of the Thirteenth
Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript
is little better than a [249 U.S. 47, 51] convict. In impassioned language it intimated that conscription
was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's
chosen few. It said, 'Do not submit to intimidation,' but in form at least confined itself to peaceful
measures such as a petition for the repeal of the act. The other and later printed side of the sheet was
headed 'Assert Your Rights.' It stated reasons for alleging that any one violated the Constitution when he
refused to recognize 'your right to assert your opposition to the draft,' and went on, 'If you do not assert
and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all
citizens and residents of the United States to retain.' It described the arguments on the other side as
coming from cunning politicians and a mercenary capitalist press, and even silent consent to the
conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens
away to foreign shores to shoot up the people of other lands, and added that words could not express
the condemnation such cold-blooded ruthlessness deserves , &c., &c., winding up, 'You must do your
share to maintain, support and uphold the rights of the people of this country.' Of course the document
would not have been sent unless it had been intended to have some effect, and we do not see what
effect it could be expected to have upon persons subject to the draft except to influence them to
obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this
point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment
to the Constitution. Two of the strongest expressions are said to be quoted respectively from wellknown public men. It well may be that the prohibition of laws abridging the freedom of speech is not
confined to previous restraints, although to prevent them may have been the [249 U.S. 47, 52] main
purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10
3
Ann. Cas. 689. We admit that in many places and in ordinary times the defendants in saying all that was
said in the circular would have been within their constitutional rights. But the character of every act
depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205 , 206 S., 25
Sup. Ct. 3. The most stringent protection of free speech would not protect a man in falsely shouting fire
in a theatre and causing a panic. It does not even protect a man from an injunction against uttering
words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439 , 31
S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. 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. When a nation is at war many things that might be said in time of peace are such
a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court
could regard them as protected by any constitutional right. It seems to be admitted that if an actual
obstruction of the recruiting service were proved, liability for words that produced that effect might be
enforced. The statute of 1917 in section 4 (Comp. St. 1918 , 10212d) punishes conspiracies to obstruct
as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent
with which it is done are the same, we perceive no ground for saying that success alone warrants
making the act a crime. Goldman v. United States, 245 U.S. 474 , 477 38 Sup. Ct. 166, 62 L. ed. 410.
Indeed that case might be said to dispose of the present contention if the precedent covers all media
concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a
few words.
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917.
The [249 U.S. 47, 53] words are 'obstruct the recruiting or enlistment service,' and it might be
suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having
been accomplished by getting volunteers the word is apt to call up that method only in our minds. But
recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative
to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the
amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment and
would not, even if the former act had been repealed. Rev. St. 13 (Comp. St. 14).
Judgments affirmed.
4
U.S. Supreme Court
ABRAMS v. U S , 250 U.S. 616 (1919)
250 U.S. 616
ABRAMS et al.
v.
UNITED STATES.
No. 316.
Argued Oct. 21 and 22, 1919.
Decided Nov. 10, 1919.
Mr. Harry Weinberger, of New York City, for plaintiffs in error.
Mr. Assistant Attorney General Robert P. Stewart, for the United States.
Mr. Justice CLARKE delivered the opinion of the Court.
On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the
defendants, were convicted of conspiring to violate provisions of the [250 U.S. 616, 617] Espionage Act
of Congress (section 3, title I, of Act June 15, 1917, c. 30, 40 Stat. 219, as amended by Act May 16, 1918,
c. 75, 40 Stat. 553 [Comp. St. 1918, 10212c]).
Each of the first three counts charged the defendants with conspiring, when the United States was at
war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: In the first
count, 'disloyal, scurrilous and abusive language about the form of government of the United States;' in
the second count, language 'intended to bring the form of government of the United States into
contempt, scorn, contumely, and disrepute;' and in the third count, language 'intended to incite,
provoke and encourage resistance to the United States in said war.' The charge in the fourth count was
that the defendants conspired 'when the United States was at war with the Imperial German
Government, ... unlawfully and willfully, by utterance, writing, printing and publication to urge, incite
and advocate curtailment of production of things and products, to wit, ordnance and ammunition,
necessary and essential to the prosecution of the war.' The offenses were charged in the language of the
act of Congress.
It was charged in each count of the indictment that it was a part of the conspiracy that the defendants
would attempt to accomplish their unlawful purpose by printing, writing and distributing in the city of
New York many copies of a leaflet or circular, printed in the English language, and of another printed in
the Yiddish language, copies of which, properly identified, were attached to the indictment.
All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and at
the time they were arrested they had lived in the United States terms varying from five to ten years, but
none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and
of these three frankly avowed that they were 'rebels,' 'revolutionists,' [250 U.S. 616, 618] 'anarchists,'
that they did not believe in government in any form, and they declared that they had no interest
5
whatever in the government of the United States. The fourth defendant testified that he was a 'Socialist'
and believed in ' a proper kind of government, not capitalistic,' but in his classification the government
of the United States was 'capitalistic.'
It was admitted on the trial that the defendants had united to print and distribute the described
circulars and that 5,000 of them had been printed and distributed about the 22d day of August, 1918.
The group had a meeting place in New York City, in rooms rented by defendant Abrams, under an
assumed name, and there the subject of printing the circulars was discussed about two weeks before
the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918,
purchased the printing outfit with which the circulars were printed, and installed it in a basement room
where the work was done at night. The circulars were distributed, some by throwing them from a
window of a building where one of the defendants was employed and others secretly, in New York City.
The defendants pleaded 'not guilty,' and the case of the government consisted in showing the facts we
have stated, and in introducing in evidence copies of the two printed circulars attached to the
indictment, a sheet entitled 'Revolutionists Unite for Action,' written by the defendant Lipman, and
found on him when he was arrested, and another paper, found at the headquarters of the group, and
for which Abrams assumed responsibility.
Thus the conspiracy and the doing of the overt acts charged were largely admitted and were fully
established.
On the record thus described it is argued, somewhat faintly, that the acts charged against the
defendants were not unlawful because within the protection of that freedom [250 U.S. 616, 619] of
speech and of the press which is guaranteed by the First Amendment to the Constitution of the United
States, and that the entire Espionage Act is unconstitutional because in conflict with that amendment.
This contention is sufficiently discussed and is definitely negatived in Schenck v. United States and Baer
v. United States, 249 U.S. 47 , 39 Sup. Ct. 247, and in Frohwerk v. United States, 249 U.S. 204 , 39 Sup.
Ct. 249.
The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there
is no substantial evidence in the record to support the judgment upon the verdict of guilty and that the
motion of the defendants for an instructed verdict in their favor was erroneously denied. A question of
law is thus presented, which calls for an examination of the record, not for the purpose of weighing
conflicting testimony, but only to determine whether there was some evidence, competent and
substantial, before the jury, fairly tending to sustain the verdict. Troxell, Administrator, v. Delaware,
Lackawanna & Western R. R. Co., 227 U.S. 434, 442 , 33 S. Sup. Ct. 274; Lancaster v. Collins, 115 U.S. 222,
225 , 6 S. Sup. Ct. 33; Chicago & North Western Ry. Co. v. Ohle, 117 U.S. 123, 129 , 6 S. Sup. Ct. 632. We
shall not need to consider the sufficiency, under the rule just stated, of the evidence introduced as to all
of the counts of the indictment, for, since the sentence imposed did not exceed that which might
lawfully have been imposed under any single count, the judgment upon the verdict of the jury must be
affirmed if the evidence is sufficient to sustain any one of the counts. Evans v. United States, 153 U.S.
608 , 14 Sup. Ct. 939; Claassen v. United States, 142 U.S. 140 , 12 Sup. Ct. 169; Debs v. United States, 249
U.S. 211, 216 , 39 S. Sup. Ct. 252.
6
The first of the two articles attached to the indictment is conspicuously headed, 'The Hypocrisy of the
United States and her Allies.' After denouncing President Wilson as a hypocrite and a coward because
troops were sent into Russia, it proceeds to assail our government in general, saying:- [250 U.S. 616,
620] 'His [the President's] shameful, cowardly silence about the intervention in Russia reveals the
hypocrisy of the plutocratic gang in Washington and vicinity.'
It continues:
'He [the President] is too much of a coward to come out openly and say: 'We capitalistic nations
cannot afford to have a proletarian republic in Russia."
Among the capitalistic nations Abrams testified the United States was included.
Growing more inflammatory as it proceeds, the circular culminates in:
'The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and
mine!'
'Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.'
This is clearly an appeal to the 'workers' of this country to arise and put down by force the government
of the United States which they characterize as their 'hypocritical,' 'cowardly' and 'capitalistic' enemy.
It concludes:
'Awake! Awake, you Workers of the World!
REVOLUTIONISTS.'
The second of the articles was printed in the Yiddish language and in the translation is headed,
'Workers-Wake Up.' After referring to 'his Majesty, Mr. Wilson, and the rest of the gang, dogs of all
colors!' it continues:
'Workers, Russian emigrants, you who had the least belief in the honesty of our government,'
- which defendants admitted referred to the United States government-'must now throw away all confidence, must spit in the face the false, hypocritic, military
propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the
prosecution of the war.'
The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear
to patriotic [250 U.S. 616, 621] appeals in behalf of the government of the United States, and to cease
to render it assistance in the prosecution of the war.
It goes on:
7
'With the money which you have loaned, or are going to loan them, they will make bullets not
only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition
factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but
also your dearest, best, who are in Russia and are fighting for freedom.'
It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to
the Russian cause. Men must be held to have intended, and to be accountable for, the effects which
their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the
Russian Revolution, the plan of action which they adopted necessarily involved, before it could be
realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should
become effective, as they hoped it might, would be to persuade persons of character such as those
whom they regarded themselves as addressing, not to aid government loans and not to work in
ammunition factories, where their work would produce 'bullets, bayonets, cannon' and other munitions
of war, the use of which would cause the 'murder' of Germans and Russians.
Again, the spirit becomes more bitter as it proceeds to declare that-'America and her Allies have betrayed [the Workers]. Their robberish aims are clear to all men.
The destruction of the Russian Revolution, that is the politics of the march to Russia.
'Workers, our reply to the barbaric intervention has to be a general strike! An open challenge
only will let the government know that not only the Russian Worker fights for [250 U.S. 616,
622] freedom, but also here in America lives the spirit of Revolution.'
This is not an attempt to bring about a change of administration by candid discussion, for no matter
what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of
such a publication was to create an attempt to defeat the war plans of the government of the United
States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of
all munitions and other things essential to the conduct of the war.
This purpose is emphasized in the next paragraph, which reads:
'Do not let the government scare you with their wild punishment in prisons, hanging and
shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.'
After more of the same kind, the circular concludes:
'Woe unto those who will be in the way of progress. Let solidarity live!'
It is signed, 'The Rebels.'
That the interpretation we have put upon these articles, circulated in the greatest port of our land, from
which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war
supplies of every kind were at the time being manufactured for transportation overseas, is not only the
fair interpretation of them, but that it is the meaning which their authors consciously intended should
be conveyed by them to others is further shown by the additional writings found in the meeting place of
the defendant group and on the person of one of them. One of these circulars is headed:
'Revolutionists! Unite for Action!'
8
After denouncing the President as 'Our Kaiser' and the hypocrisy of the United States and her Allies, this
article concludes:- [250 U.S. 616, 623] 'Socialists, Anarchists, Industrial Workers of the World, Socialists,
Labor party men and other revolutionary organizations Unite for Action and let us save the Workers'
Republic of Russia!
'Know you lovers of freedom that in order to save the Russian revolution, we must keep the
armies of the allied countries busy at home.'
Thus was again avowed the purpose to throw the country into a state of revolution, if possible, and to
thereby frustrate the military program of the government.
The remaining article, after denouncing the President for what is characterized as hostility to the
Russian revolution, continues:
'We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United
States will participate in that bloody conspiracy against Russia, to create so great a disturbance
that the autocrats of America shall be compelled to keep their armies at home, and not be able
to spare any for Russia.'
It concludes with this definite threat of armed rebellion:
'If they will use arms against the Russian people to enforce their standard of order, so will we
use arms, and they shall never see the ruin of the Russian Revolution.'
These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of
lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our
government sending troops into Russia as a strategic operation against the Germans on the eastern
battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war,
disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of
embarrassing and if possible defeating the military plans of the government in Europe. A technical
distinction may perhaps be taken between disloyal and abusive language applied to the form of our
government or language intended to bring the form [250 U.S. 616, 624] of our government into
contempt and disrepute, and language of like character and intended to produce like results directed
against the President and Congress, the agencies through which that form of government must function
in time of war. But it is not necessary to a decision of this case to consider whether such distinction is
vital or merely formal, for the language of these circulars was obviously intended to provoke and to
encourage resistance to the United States in the war, as the third count runs, and, the defendants, in
terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for
the purpose of curtailing the production of ordnance and munitions necessary and essential to the
prosecution of the war as is charged in the fourth count. Thus it is clear not only that some evidence but
that much persuasive evidence was before the jury tending to prove that the defendants were guilty as
charged in both the third and fourth counts of the indictment and under the long established rule of law
hereinbefore stated the judgment of the District Court must be
AFFIRMED.
Mr. Justice HOLMES, dissenting.
9
This indictment is founded wholly upon the publication of two leaflets which I shall describe in a
moment. The first count charges a conspiracy pending the war with Germany to publish abusive
language about the form of government of the United States, laying the preparation and publishing of
the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish
language intended to bring the form of government into contempt, laying the preparation and
publishing of the two leaflets as overt acts. The third count alleges a conspiracy to encourage resistance
to the United States in the same war and to attempt to effectuate the purpose by publishing the same
leaflets. The fourth count lays a conspiracy [250 U.S. 616, 625] to incite curtailment of production of
things necessary to the prosecution of the war and to attempt to accomplish it by publishing the second
leaflet to which I have referred.
The first of these leaflets says that the President's cowardly silence about the intervention in Russia
reveals the hypocrisy of the plutocratic gang in Washington. It intimates that 'German militarism
combined with allied capitalism to crush the Russian revolution'-goes on that the tyrants of the world
fight each other until they see a common enemy-working class enlightenment, when they combine to
crush it; and that now militarism and capitalism combined, though not openly, to crush the Russian
revolution. It says that there is only one enemy of the workers of the world and that is capitalism; that it
is a crime for workers of America, etc., to fight the workers' republic of Russia, and ends 'Awake! Awake,
you workers of the world! Revolutionists.' A note adds 'It is absurd to call us pro-German. We hate and
despise German militarism more than do you hypocritical tyrants. We have more reason for denouncing
German militarism than has the coward of the White House.'
The other leaflet, headed 'Workers-Wake Up,' with abusive language says that America together with
the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and
that his time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells
the Russian emigrants that they now must spit in the face of the false military propaganda by which
their sympathy and help to the prosecution of the war have been called forth and says that with the
money they have lent or are going to lend 'they will make bullets not only for the Germans but also for
the Workers Soviets of Russia,' and further, 'Workers in the ammunition factories, you are producing
bullets, bayonets, cannon to murder not only the Germans, [250 U.S. 616, 626] but also your dearest,
best, who are in Russia fighting for freedom.' It then appeals to the same Russian emigrants at some
length not to consent to the 'inquisitionary expedition in Russia,' and says that the destruction of the
Russian revolution is 'the politics of the march on Russia.' The leaflet winds up by saying 'Workers, our
reply to this barbaric intervention has to be a general strike!' and after a few words on the spirit of
revolution, exhortations not to be afraid, and some usual tall talk ends 'Woe unto those who will be in
the way of progress. Let solidarity live! The Rebels.'
No argument seems to be necessary to show that these pronunciamentos in no way attack the form of
government of the United States, or that they do not support either of the first two counts. What little I
have to say about the third count may be postponed until I have considered the fourth. With regard to
that it seems too plain to be denied that the suggestion to workers in the ammunition factories that
they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in
the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war
within the meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending section 3 of the earlier Act
of 1917 (Comp. St. 10212c). But to make the conduct criminal that statute requires that it should be
'with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.' It
seems to me that no such intent is proved.
10
I am aware of course that the word 'intent' as vaguely used in ordinary legal discussion means no more
than knowledge at the time of the act that the consequences said to be intended will ensue. Even less
than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages,
may be sent to prison, at common law might be hanged, if at the time of his act [250 U.S. 616, 627] he
knew facts from which common experience showed that the consequences would follow, whether he
individually could foresee them or not. But, when words are used exactly, a deed is not done with intent
to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and
obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it,
but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive
of the specific act, although there may be some deeper motive behind.
It seems to me that this statute must be taken to use its words in a strict and accurate sense. They
would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or
making more cannon of a certain kind than we needed, and might advocate curtailment with success,
yet even if it turned out that the curtailment hindered and was thought by other minds to have been
obviously likely to hinder the United States in the prosecution of the war, no one would hold such
conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to
show what I think and to let me pass to a more important aspect of the case. I refer to the First
Amendment to the Constitution that Congress shall make no law abridging the freedom of speech.
I never have seen any reason to doubt that the questions of law that alone were before this Court in the
Cases of Schenck ( 249 U.S. 47 , 29 Sup. Ct. 247) Frohwerk ( 249 U.S. 204 , 39 Sup. Ct. 249), and Debs (
249 U.S. 211 , 39 Sup. Ct. 252), were rightly decided. I do not doubt for a moment that by the same
reasoning that would justify punishing persuasion to murder, the United States constitutionally may
punish speech that produces or is intended to produce a clear and imminent danger that it will bring
about forthwith certain substantive evils that the United States constitutionally may seek to prevent.
The power undoubtedly is [250 U.S. 616, 628] greater in time of war than in time of peace because war
opens dangers that do not exist at other times.
But as against dangers peculiar to war, as against others, the principle of the right to free speech is
always the same. It is only the present danger of immediate evil or an intent to bring it about that
warrants Congress in 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. Now nobody can suppose
that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any
immediate danger that its opinions would hinder the success of the government arms or have any
appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however,
might indicate a greater danger and at any rate would have the quality of an attempt. So I assume that
the second leaflet if published for the purposes alleged in the fourth count might be punishable. But it
seems pretty clear to me that nothing less than that would bring these papers within the scope of this
law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a
further act of the same individual is required to complete the substantive crime, for reasons given in
Swift & Co. v. United States, 196 U.S. 375, 396 , 25 S. Sup. Ct. 276. It is necessary where the success of
the attempt depends upon others because if that intent is not present the actor's aim may be
accomplished without bringing about the evils sought to be checked. An intent to prevent interference
with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in
which we were engaged.
11
I do not see how anyone can find the intent required by the statute in any of the defendant's words. The
second leaflet is the only one that affords even a foundation for the charge, and there, without invoking
the hatred of German militarism expressed in the former one, it is evident [250 U.S. 616, 629] from the
beginning to the end that the only object of the paper is to help Russia and stop American intervention
there against the popular government- not to impede the United States in the war that it was carrying
on. To say that two phrases taken literally might import a suggestion of conduct that would have
interference with the war as an indirect and probably undesired effect seems to me by no means
enough to show an attempt to produce that effect.
I return for a moment to the third count. That charges an intent to provoke resistance to the United
States in its war with Germany. Taking the clause in the statute that deals with that in connection with
the other elaborate provisions of the Act, I think that resistance to the United States means some
forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the
intent must be the specific intent that I have described and for the reasons that I have given I think that
no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United
States as I construe the phrase.
In this case sentences of twenty years imprisonment have been imposed for the publishing of two
leaflets that I believe the defendants had as much right to publish as the Government has to publish the
Constitution of the United States now vainly invoked by them. Even if I am technically wrong and
enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I
will add, even if what I think the necessary intent were shown; the most nominal punishment seems to
me all that possible could be inflicted, unless the defendants are to be made to suffer not for what the
indictment alleges but for the creed that they avow-a creed that I believe to be the creed of ignorance
and immaturity when honestly held, as I see no reason to doubt that it was held here but which,
although made the subject of examination at the [250 U.S. 616, 630] trial, no one has a right even to
consider in dealing with the charges before the Court.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your
premises or your power and want a certain result with all your heart you naturally express your wishes
in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think
the speech impotent, as when a man says that he has squared the circle, or that you do not care whole
heartedly for the result, or that you doubt either your power or your premises. But when men have
realized that time has upset many fighting faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate good desired is better reached by free trade
in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition
of the market, and that truth is the only ground upon which their wishes safely can be carried out. That
at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if
not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.
While that experiment is part of our system I think that we should be eternally vigilant against attempts
to check the expression of opinions that we loathe and believe to be fraught with death, unless they so
imminently threaten immediate interference with the lawful and pressing purposes of the law that an
immediate check is required to save the country. I wholly disagree with the argument of the
Government that the First Amendment left the common law as to seditious libel in force. History seems
to me against the notion. I had conceived that the United States through many years had shown its
repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it
imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil
counsels to time warrants [250 U.S. 616, 631] making any exception to the sweeping command,
12
'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of
expressions of opinion and exhortations, which were all that were uttered here, but I regret that I
cannot put into more impressive words my belief that in their conviction upon this indictment the
defendants were deprived of their rights under the Constitution of the United States.
Mr. Justice BRANDEIS concurs with the foregoing opinion.
13
U.S. Supreme Court
GITLOW v. PEOPLE OF STATE OF NEW YORK, 268 U.S. 652 (1925)
268 U.S. 652
GITLOW
v.
PEOPLE OF THE STATE OF NEW YORK.
No. 19.
Reargued Nov. 23, 1923.
Decided June 8, 1925.
[268 U.S. 652, 653] Messrs. Walter H. Pollak and Walter Nelles, both of New York City, for plaintiff in
error.
Messrs. John Caldwell Myers, of New York City, and W. J. Wetherbee and Claude T. Dawes, both of
Albany, N. Y., for the People of the State of New York.
[268 U.S. 652, 654]
Mr. Justice SANFORD delivered the opinion of the Court.
Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory
crime of criminal anarchy. New York Penal Law, 160, 161.1 He was separately tried, convicted, and
sentenced to imprisonment. The judgment was affirmed by the Appellate Division and by the Court of
Appeals. People v. Gitlow, 195 App. Div. 773, 187 N. Y. S. 783; 234 N. Y. 132, 136 N. E. 317; and 234 N. Y.
529, 138 N. E. 438. The case is here on writ of error to the Supreme Court, to which the record was
remitted. 260 U.S. 703 , 43 S. Ct. 163.
The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due
process clause of the Fourteenth Amendment. Its material provisions are:
'Sec. 160. Criminal Anarchy Defined. Criminal anarchy is the doctrine that organized government
should be overthrown by force or violence, or by assessination of the executive head or of any
of the executive officials of government, or by any unlawful means. The advocacy of such
doctrine either by word of mouth or writing is a felony.
'Sec. 161. Advocacy of Criminal Anarchy. Any person who:
'1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of
overthrowing or overturning organized government by force or violence, or by assassination of
the executive head or of any of the executive officials of government, or by any unlawful means;
or,
'2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays
any book, paper, document, or written or printed matter in any [268 U.S. 652, 655] form,
containing or advocating, advising or teaching the doctrine that organized government should
be overthrown by force, violence or any unlawful means, ...
14
'Is guilty of a felony and punishable' by imprisonment or fine, or both.
The indictment was in two counts. The first charged that the defendant had advocated, advised and
taught the duty, necessity and propriety of overthrowing and overturning organized government by
force, violence and unlawful means, by certain writings therein set forth entitled 'The Left Wing
Manifesto'; the second that he had printed, published and knowingly circulated and distributed a certain
paper called 'The Revolutionary Age,' containing the writings set forth in the first count advocating,
advising and teaching the doctrine that organized government should be overthrown by force, violence
and unlawful means.
The following facts were established on the trial by undisputed evidence and admissions: The defendant
is a member of the Left Wing Section of the Socialist Party, a dissenting branch or faction of that party
formed in opposition to its dominant policy of 'moderate Socialism.' Membership in both is open to
aliens as well as citizens. The Left Wing Section was organized nationally at a conference in New York
City in June, 1919, attended by ninety delegates from twenty different States. The conference elected a
National Council, of which the defendant was a member, and left to it the adoption of a 'Manifesto.' This
was published in The Revolutionary Age, the official organ of the Left Wing. The defendant was on the
board of managers of the paper and was its business manager. He arranged for the printing of the paper
and took to the printer the manuscript of the first issue which contained the Left Wing Manifesto, and
also a Communist Program and a Program of the Left Wing that had been adopted by the conference.
Sixteen thousand [268 U.S. 652, 656] copies were printed, which were delivered at the premises in New
York City used as the office of the Revolutionary Age and the head quarters of the Left Wing, and
occupied by the defendant and other officials. These copies were paid for by the defendant, as business
manager of the paper. Employees at this office wrapped and mailed out copies of the paper under the
defendant's direction; and copies were sold from this office. It was admitted that the defendant signed a
card subscribing to the Manifesto and Program of the Left Wing, which all applicants were required to
sign before being admitted to membership; that he went to different parts of the State to speak to
branches of the Socialist Party about the principles of the Left Wing and advocated their adoption; and
that he was responsible for the Manifesto as it appeared, that 'he knew of the publication, in a general
way and he knew of its publication afterwards, and is responsible for the circulation.'
There was no evidence of any effect resulting from the publication and circulation of the Manifesto.
No witnesses were offered in behalf of the defendant.
Extracts from the Manifesto are set forth in the margin. 2 Coupled with a review of the rise of Socialism,
it [268 U.S. 652, 657] condemned the dominant 'moderate Socialism' for its recognition of the necessity
of the democratic parliamentary state; repudiated its policy of introducing Socialism by legislative
measures; and advocated, in plain and unequivocal language, the necessity of accomplishing the
'Communist Revolution' by a militant and 'revolutionary Socialism,' based on 'the class struggle' and
mobilizing [268 U.S. 652, 658] the 'power of the proletariat in action,' through mass industrial revolts
developing into mass political strikes and 'revolutionary mass action,' for the purpose of conquering and
destroying the parliamentary state and establishing in its place, through a 'revoluntionary dictatorship of
the proletariat,' the system of Communist Socialism. The then recent strikes in Seattle and Winnepeg3
were cited as instances of a development already verging on revolutionary action and suggestive of
proletarian [268 U.S. 652, 659] dictatorship, in which the strike-workers were 'trying to usurp the
functions of municipal government'; and revolutionary Socialism, it was urged, must use these mass
15
industrial revolts to broaden the strike, make it general and militant, and develop it into mass political
strikes and revolutionary mass action for the annihilation of the parliamentary state.
At the outset of the trial the defendant's counsel objected to the introduction of any evidence under the
[268 U.S. 652, 660] indictment on the grounds that, as a matter of law, the Manifesto 'is not in
contravention of the statute,' and that 'the statute is in contravention of' the due process clause of the
Fourteenth Amendment. This objection was denied. They also moved, at the close of the evidence, to
dismiss the indictment and direct an acquittal 'on the grounds stated in the first objection to evidence,'
[268 U.S. 652, 661] and again on the grounds that 'the indictment does not charge an offense' and the
evidence 'does not show an offense.' These motions were also denied.
The court, among other things, charged the jury, in substance, that they must determine what was the
intent, purpose and fair meaning of the Manifesto; that its words must be taken in their ordinary
meaning, as they would be understood by people whom it might reach; that a mere statement or
analysis of social and economic facts and historical incidents, in the nature of an essay, accompanied by
prophecy as to the future course of events, but with no teaching, advice or advocacy of action, would
not constitute the advocacy, advice or teaching of a doctrine for the overthrow of government within
the meaning of the statute; that a mere statement that unlawful acts might accomplish such a purpose
would be insufficient, unless there was a teaching, advising the advocacy of employing such unlawful
acts for the purpose of overthrowing government; and that if the jury had a reasonable doubt that the
Manifesto did teach, advocate or advise the duty, necessity or propriety of using unlawful means for the
overthrowing of organized government, the defendant was entitled to an acquittal.
The defendant's counsel submitted two requests to charge which embodied in substance the statement
that to constitute criminal anarchy within the meaning of the statute it was necessary that the language
used or published should advocate, teach or advise the duty, necessity or propriety of doing 'some
definite or immediate act or acts' or force, violence or unlawfulness directed toward the overthrowing
of organized government. These were denied further than had been charged. Two other requests to
charge embodied in substance the statement that to constitute guilt the language used or published
must be 'reasonably and ordinarily calculated to incite certain persons' to acts of force, violence or
unlawfulness, [268 U.S. 652, 662] with the object of overthrowing organized government. These were
also denied.
The Appellate Division, after setting forth extracts from the Manifesto and referring to the Left Wing and
Communist Programs published in the same issue of the Revolutionary Age, said:4
'It is perfectly plain that the plan and purpose advocated ... contemplate the overthrow and
destruction of the governments of the United States and of all the States, not by the free action
of the majority of the people through the ballot box in electing representatives to authorize a
change of government by amending or changing the Constitution, ... but by immediately
organizing the industrial proletariat into militant Socialist unions and at the earliest opportunity
through mass strike and force and violence, if necessary, compelling the government to cease to
function, and then through a proletarian dictatorship, taking charge of and appropriating all
property and administering it and governing through such dictatorship until such time as the
proletariat is permitted to administer and govern it. ... The articles in question are not a
discussion of ideas and theories. They advocate a doctrine deliberately determined upon and
planned for militantly disseminating a propaganda advocating that it is the duty and necessity of
the proletariat engaged in industrial pursuits to organize to such an extent that, by massed
16
strike, the wheels of government may ultimately be stopped and the government overthrown.
...'
The Court of Appeals held that the Manifesto 'advocated the overthrow of this government by violence,
or by unlawful means.' 5 In one of the opinions representing [268 U.S. 652, 663] the views of a majority
of the court,6 it was said:
'It will be seen ... that this defendant through the Manifesto ... advocated the destruction of the
state and the establishment of the dictatorship of the proletariat. ... To advocate ... the
commission of this conspiracy or action by mass strike whereby government is cripped, the
administration of justice paralyzed, and the health, morals and welfare of a community
endangered, and this for the purpose of bringing about a revolution in the state, is to advocate
the overthrow of organized government by unlawful means.'
In the other7 it was said:
'As we read this Manifesto ... we feel entirely clear that the jury were justified in rejecting the
view that it was a mere academic and harmless discussion of the advantages of communism and
advanced socialism' and 'in regarding it as a justification and advocacy of action by one class
which would destory the rights of all other classes and overthrow the state itself by use of
revolutionary mass strikes. It is true that there is no advocacy in specific terms of the use of ...
force or violence. There was no need to be. Some things are so commonly incident to others
that they do not need to be mentioned when the underlying purpose is described.'
And both the Appellate Division and the Court of Appeals held the statute constitutional.
The specification of the errors relied on relates solely to the specific rulings of the trial court in the
matters hereinbefore set out. 8 The correctness of the verdict is not [268 U.S. 652, 664] questioned, as
the case was submitted to the jury. The sole contention here is, essentially, that as there was no
evidence of any concrete result flowing from the publication of the Manifesto or of circumstances
showing the likelihood of such result, the statute as construed and applied by the trial court penalizes
the mere utterance, as such, of 'doctrine' having no quality of incitement, without regard either to the
circumstances of its utterance or to the likelihood of unlawful sequences; and that, as the exercise of
the right of free expression with relation to government is only punishable 'in circumstances involving
likelihood of substantive evil,' the statute contravenes the due process clause of the Fourteenth
Amendment. The argument in support of this contention rests primarily upon the following
propositions: 1st, That the 'liberty' protected by the Fourteenth Amendment includes the liberty of
speech and of the press; and 2d, That while liberty of expression 'is not absolute,' it may be restrained
'only in circumstances where its exercise bears a causal relation with some substantive evil,
consummated, attempted or likely,' and as the statute 'takes no account of circumstances,' it unduly
restrains this liberty and is therefore unconstitutional.
The precise question presented, and the only question which we can consider under this writ of error,
then is, whether the statute, as construed and applied in this case, by the State courts, deprived the
defendant of his liberty of expression in violation of the due process clause of the Fourteenth
Amendment.
17
The statute does not penalize the utterance or publication of abstract 'doctrine' or academic discussion
having no quality of incitement to any concrete action. It is not aimed against mere historical or
philosophical essays. It does not restrain the advocacy of changes in the form of government by
constitutional and lawful means. What it prohibits is language advocating, advising or teaching [268 U.S.
652, 665] the overthrow of organized government by unlawful means. These words imply urging to
action. Advocacy is defined in the Century Dictionary as: '1. The act of pleading for, supporting, or
recommending; active espousal.' It is not the abstract 'doctrine' of overthrowing organized government
by unlawful means which is denounced by the statute, but the advocacy of action for the
accomplishment of that purpose. It was so construed and applied by the trial judge, who specifically
charged the jury that:
'A mere grouping of historical events and a prophetic deduction from them would neither
constitute advocacy, advice or teaching of a doctrine for the overthrow of government by force,
violence or unlawful means. [And] if it were a mere essay on the subject, as suggested by
counsel, based upon deductions from alleged historical events, with no teaching, advice or
advocacy of action, it would not constitute a violation of the statute. ...'
The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere
prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an
inevitable process of evolution in the economic system. It advocates and urges in fervent language mass
action which shall progressively foment industrial disturbances and through political mass strikes and
revolutionary mass action action overthrow and destroy organized parliamentary government. It
concludes with a call to action in these words:
'The proletariat revolution and the Communist reconstruction of society-the struggle for these-is
now indispensable. ... The Communist International calls the proletariat of the world to the final
struggle!'
This is not the expression of philosophical abstraction, the mere prediction of future events; it is the
language of direct incitement.
The means advocated for bringing about the destruction of organized parliamentary government,
namely, mass industrial [268 U.S. 652, 666] revolts usurping the functions of municipal government,
political mass strikes directed against the parliamentary state, and revolutionary mass action for its final
destruction, necessarily imply the use of force and violence, and in their essential nature are inherently
unlawful in a constitutional government of law and order. That the jury were warranted in finding that
the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by
force, violence and unlawful means, but action to that end, is clear.
For present purposes we may and do assume that freedom of speech and of the press-which are
protected by the First Amendment from abridgment by Congress-are among the fundamental personal
rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from
impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259
U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27, that the Fourteenth Amendment imposes no restrictions on
the States concerning freedom of speech, as determinative of this question. 9
18
It is a fundamental principle, long established, that the freedom of speech and of the press which is
secured by the Constitution, does not confer an absolute right to speak or publish, without
responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity
for every possible use of language and prevents the punishment of those who abuse this freedom. 2
Story on the Constitution ( 5th Ed.) 1580, p. 634; Robertson v. Baldwin, 165 U.S. 275, 281 , 17 S. Ct. 326;
Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas. 689; Fox v. Washington, 236 [268
U.S. 652, 667] U. S. 273, 276, 35 S. Ct. 383; Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247;
Frohwerk v. United States, 249 U.S. 204, 206 , 39 S. Ct. 249; Debs v. United States, 249 U.S. 211, 213 , 39
S. Ct. 252; Schaefer v. United States, 251 U.S. 466, 474 , 40 S. Ct. 259; Gilbert v. Minnesota, 254 U.S. 325,
332 , 41 S. Ct. 125; Warren v. United States, 183 F. 718, 721, 106 C. C. A. 156, 33 L. R. A. (N. S.) 800.
Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a
free government; without such limitation, it might become the scourge of the republic.
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 corrupt public morals, incite to crime, or disturb the public
peace, is not open to question. Robertson v. Baldwin, supra, p. 281 (17 S. Ct. 326); Patterson v.
Colorado, supra, p. 462 (27 S. Ct. 556); Fox v. Washington, supra, p. 277 (35 S. Ct. 383); Gilbert v.
Minnesota, supra, p. 339 (41 S. Ct. 125); People v. Most, 171 N. Y. 423, 431, 64 N. E. 175, 58 L. R. A. 509;
State v. Holm, 139 Minn. 267, 275, 166 N. W. 181, L. R. A. 1918C, 304; State v. Hennessy, 114 Wash. 351,
359, 195 P. 211; State v. Boyd, 86 N. J. Law, 75, 79, 91 A. 586; State v. McKee, 73 Conn. 18, 27, 46 A. 409,
49 L. R. A. 542, 84 Am. St. Rep. 124. Thus it was held by this Court in the Fox Case, that a State may
punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case,
that a State may punish utterances teaching or advocating that its citizens should not assist the United
States in prosecuting or carrying on war with its public enemies.
And, for yet more imperative reasons, a State may punish utterances endangering the foundations of
organized government and threatening its overthrow by unlawful means. These imperil its own
existence as a constitutional State. Freedom of speech and press, said Story, supra, does not protect
disturbances to the public peace or the attempt to subvert the government. It does not protect
publications or teachings which tend to subvert or imperil the government or to impede or hinder it in
the performance of its governmental duties. State v. [268 U.S. 652, 668] Holm, supra, p. 275 (166 N. W.
181). It does not protect publications prompting the overthrow of government by force; the punishment
of those who publish articles which tend to destroy organized society being essential to the security of
freedom and the stability of the state. People v. Most, supra, pp. 431, 432 (64 N. E. 175). And a State
may penalize utterances which openly advocate the overthrow of the representative and constitutional
form of government of the United States and the several States, by violence or other unlawful means.
People v. Lloyd, 304 Ill. 23, 34, 136 N. E. 505. See, also, State v. Tachin, 92 N. J. Law, 269, 274, 106 A.
145, and People v. Steelik, 187 Cal. 361, 375, 203 P. 78. In short this freedom does not deprive a State of
the primary and essential right of self preservation; which, so long as human governments endure, they
cannot be denied. Turner v. Williams, 194 U.S. 279, 294 , 24 S. Ct. 719. In Toledo Newspaper Co. v.
United States, 247 U.S. 402, 419 , 38 S. Ct. 560, 564 (62 L. Ed. 1186), it was said:
'The safeguarding and fructification of free and constitutional institutions is the very basis and
mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and
cannot be held to include the right virtually to destroy such institutions.'
By enacting the present statute the State has determined, through its legislative body, that utterances
advocating the overthrow of organized government by force, violence and unlawful means, are so
19
inimical to the general welfare and involve such danger of substantive evil that they may 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. Kansas, 123 U.S. 623, 661 , 8 S. Ct. 273. And
the case is to be considered 'in the light of the principle that the State is primarily the judge of
regulations required in the interest of public safety and welfare'; and that its police 'statutes may only
be declared unconstitutional where they are arbitrary or unreasonable [268 U.S. 652, 669] attempts to
exercise authority vested in the State in the public interest.' Great Northern Ry. v. Clara City, 246 U.S.
434, 439 , 38 S. Ct. 346, 347 ( 62 L. Ed. 817). That utterances inciting to the overthrow of organized
government by unlawful means, present a sufficient danger of substantive evil to bring their punishment
within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger
to the public peace and to the security of the State. They threaten breaches of the peace and ultimate
revolution. And the immediate danger is none the less real and substantial, because the effect of a given
utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the
danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark
may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.
It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment
as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark
without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be
required to defer the adoption of measures for its own peace and safety until the revolutionary
utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own
destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.
In People v. Lloyd, supra, p. 35 (136 N. E. 512), it was aptly said:
'Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and
intended to overthrow the government without waiting until there is a present and imminent
danger of the success of the plan advocated. If the State were compelled to wait until the
apprehended danger became certain, then its right to protect itself would come into being
simultaneously with the overthrow of the government, when there [268 U.S. 652, 670] would
be neither prosecuting officers nor courts for the enforcement of the law.'
We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of
the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its
constitutionality.
This being so it may be applied to every utterance-not too trivial to be beneath the notice of the lawwhich is of such a character and used with such intent and purpose as to bring it within the prohibition
of the statute. This principle is illustrated in Fox v. Washington, supra, p. 277 ( 35 S. Ct. 383); Abrams v.
United States, 250 U.S. 616, 624 , 40 S. Ct. 17; Schaefer v. United States, supra, pp. 479, 480 (40 S. Ct.
259); Pierce v. United States, 252 U.S. 239, 250 , 251 S., 40 S. Ct. 205,10 and Gilbert v. Minnesota, supra,
p. 333 (41 S. Ct. 125). In other words, when the legislative body has determined generally, in the
constitutional exercise of its discretion, that utterances of a certain kind involve such danger of
substantive evil that they may be punished, the question whether any specific utterance coming within
the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to
consideration. It is sufficient that the statute itself be constitutional and that the use of the language
comes within its prohibition.
It is clear that the question in such cases is entirely different from that involved in those cases where the
statute merely prohibits certain acts involving the danger of substantive evil, without any reference to
20
language itself, and it is sought to apply its provisions to language [268 U.S. 652, 671] used by the
defendant for the purpose of bringing about the prohibited results. There, if it be contended that the
statute cannot be applied to the language used by the defendant because of its protection by the
freedom of speech or press, it must necessarily be found, as an original question, without any previous
determination by the legislative body, whether the specific language used involved such likelihood of
bringing about the substantive evil as to deprive it of the constitutional protection. In such case it has
been held that the general provisions of the statute may be constitutionally applied to the specific
utterance of the defendant if its natural tendency and probable effect was to bring about the
substantive evil which the legislative body might prevent. Schenck v. United States, supra, p. 51 (39 S.
Ct. 247); Debs v. United States, supra, pp. 215, 216 (39 S. Ct. 252). And the general statement in the
Schenck Case, p. 52 (39 S. Ct. 249) that 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,'-upon which great reliance is placed in the defendant's argument-was
manifestly intended, as shown by the context, to apply only in cases of this class, and has no application
to those like the present, where the legislative body itself has previously determined the danger of
substantive evil arising from utterances of a specified character.
The defendant's brief does not separately discuss any of the rulings of the trial court. It is only necessary
to say that, applying the general rules already stated, we find that none of them involved any invasion of
the constitutional rights of the defendant. It was not necessary, within the meaning of the statute, that
the defendant should have advocated 'some definite or immediate act or acts' of force, violence or
unlawfulness. It was sufficient if such acts were advocated in general terms; and it was not essential that
their immediate execution should [268 U.S. 652, 672] have been advocated. Nor was it necessary that
the language should have been 'reasonably and ordinarily calculated to incite certain persons' to acts of
force, violence or unlawfulness. The advocacy need not be addressed to specific persons. Thus, the
publication and circulation of a newspaper article may be an encouragement or endeavor to persuade
to murder, although not addressed to any person in particular. Queen v. Most, L. R. 7 Q. B. D. 244.
We need not enter upon a consideration of the English common law rule of seditious libel or the Federal
Sedition Act of 1798,11 to which reference is made in the defendant's brief. These are so unlike the
present statute, that we think the decisions under them cast no helpful light upon the questions here.
And finding, for the reasons stated, that the statute is not in itself unconstitutional, and that it has not
been applied in the present case in derogation of any constitutional right, the judgment of the Court of
Appeals is
AFFIRMED.
Mr. Justice HOLMES (dissenting).
Mr. Justice BRANDEIS and I are of opinion that this judgment should be reversed. The general principle
of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of
the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted
with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language
that governs or ought to govern the laws of the United States. If I am right then I think that the criterion
sanctioned by the full Court in Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249 (63 L. Ed.
470), applies:
21
'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
[268 U.S. 652, 673] evils that [the State] has a right to prevent.'
It is true that in my opinion this criterion was departed from in Abrams v. United States, 250 U.S. 616 ,
40 S. Ct. 17, but the convictions that I expressed in that case are too deep for it to be possible for me as
yet to believe that it and Schaefer v. United States, 251 U.S. 466 , 40 S. Ct. 259, have settled the law. If
what I think the correct test is applied it is manifest that there was no present danger of an attempt to
overthrow the government by force on the part of the admittedly small minority who shared the
defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. 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.
If the publication of this document had been laid as an attempt to induce an uprising against
government at once and not at some indefinite time in the future it would have presented a different
question. The object would have been one with which the law might deal, subject to the doubt whether
there was any danger that the publication could produce any result, or in other words, whether it was
not futile and too remote from possible consequences. But the indictment alleges the publication and
nothing more.
Footnotes
[ Footnote 1 ] Laws 1909, c. 88; Consol. Laws 1909, c. 40. This statute was originally enacted in 1902.
Laws 1902, c. 371.
[ Footnote 2 ] Italics are given as in the original, but the paragraphing is omitted.
'The Left Wing Manifesto.*
'Issued on Authority of the Conference by the National Council of the Left Wing.
'The world is in crisis. Capitalism, the prevailing system of society, is in process of disintegration
and collapse. ... Humanity can be saved from its last excesses only by the Communist Revolution.
There can now be only the Socialism which is one in temper and purpose with the proletarian
revolutionary struggle. ... The class struggle is the heart of Socialism. Without strict conformity
to the class struggle, in its revolutionary implications, Socialism becomes either sheer
Utopianism, or a method of reaction. ... The dominant Socialism united with the capitalist
governments to prevent a revolution. The Russian Revolution was the first act of the proletariat
against the war and Imperialism. ... [The] proletaiat, urging on the poorer peasantry, conquered
power. It accomplished a proletarian revolution by means of the Bolshevik policy of 'all power to
the Soviets,'-organizing the new transitional state of proletarian dictatorship. ... Moderate
Socialism affirms that the bourgeois, democratic parliamentary state is the necessary basis for
the introduction of Socialism. ... Revolutionary Socialism, on the contrary, insists that the
democratic parliamentary state can never be the basis for the introduction of Socialism; that it is
necessary to destroy the parliamentary state, and construct a new state of the organized
22
producers, which will deprive the bourgeoisie of political power, and function as a revolutionary
dictatorship of the proletariat. ... Revolutionary Socialism alone is capable of mobilizing the
proletariat for Socialism, for the conquest of the power of the state, by means of revolutionary
mass action proletarian dictatorship. ... Imperialism is dominant in the United States, which is
now a world power. ... The war
has aggrandized American Capitalism, instead stead of weakening it as in Europe. ... These conditions
modify our immediate task, but do not alter its general character; this is not the moment of revolution,
but it is the moment of revolutionary struggle. ... Strikes are developing which verge on revolutionary
action, and which the suggestion of proletarian dictatorship is apparent, the striker-workers trying to
usurp functions of municipal government, as in Seattle and Winnipeg. The mass struggle of the
proletariat is coming into being. ... These strikes will constitute the determining feature of proletarian
action in the days to come. Revolutionary Socialism must use these mass industrial revolts to broaden
the strike, to make it general and militant; use the strike for political objectives, and, finally, develop the
mass political strike against Capitalism and the state. Revolutionary Socialism must base itself on the
mass struggles of the proletariat, engage directly in these struggles while emphasizing the revolutionary
purposes of Socialism and the proletarian movement. The mass strikes of the American proletariat
provide the material basis out of which to develop the concepts and action of revolutionary Socialism. ...
Our task ... is to articulate and organize the mass of the unorganized industrial proletariat, which
constitutes the basis for a militant Socialism. The struggle for the revolutionary industrial unionism of
the proletariat becomes an indispensable phase of revolutionary Socialism, on the basis of which to
broaden and deepen the action of the militant proletariat, developing reserves for the ultimate
conquest of power. ... Revolutionary Socialism adheres to the class struggle because through the class
struggle alone-the mass struggle-can the industrial proletariat secure immediate concessions and finally
conquer power by organizing the industrial government of the working class. The class struggle is a
political struggle ... in the sense that its objective is political-the overthrow of the political organization
upon which capitalistic exploitation depends, and the introduction of a new social system. The direct
objective is the conquest by the proletariat of the power of the state. Revolutionary Socialism does not
propose to 'capture' the bourgeois parliamentary state, but to conquer and destroy it. Revolutionary
Socialism, accordingly, repudiates the policy of introducing Socialism by means of legislative measures
on the basis of the bourgeois state. ... It proposes to conquer by means of political action ... in the
revolutionary Marxian sense, which does not simply mean parliamentarism, but the class action of the
proletariat in any form having as its objective the conquest of the power of of the state . ...
Parliamentary action which emphasizes the implacable character of the class struggles is an
indispensable means of agitation. ... But parliamentarism cannot conquer the power of the state for the
proletariat . ... It is accomplished, not by the legislative representatives of the proletariat, but by the
mass power of the proletariat in action. The supreme power of the proletariat inheres in the political
mass strike, in using the industrial mass power of the proletariat for political objectives. Revolutionary
Socialism, accordingly, recognizes that the supreme form of proletarian political action is the political
mass strike . ... The power of the proleatariat lies fundamentally in its control of the industrial process.
The mobilization of this control in action against the burgeois state and Capitalism means the end of
Capitalism, the initial form of the revolutionary mass action that will conquer the power of the state. ...
The revolution starts with strikes of protest, developing into mass political strikes and then into
revolutionary mass action for the conquest of the power of the state. Mass action becomes political in
purpose while extra-parliamentary in form; it is equally a process of revolution and the
revolution itself in operation. The final objective of mass action is the conquest of the power of the
state, the annihilation of the bourgeois parliamentary state and the introduction of the transition
23
proletarian state, functioning as a revolutionary dictatorship of the proletariat . ... The bourgeois
parliamentary state is the organ of the bourgeoisie for the coercion of the proletariat. The revolutionary
proletariat must, accordingly, destroy this state. ... It is therefore necessary that the proletariat organize
its own state for the coercion and suppression of the bourgeoisie. ... Proletarian dictatorship is a
recognition of the necessity for a revolutionary state to coerce and suppress the bourgeoisie; it is
equally a recognition of the fact that, in the Communist reconstruction of society, the proletariat as a
class alone counts. ... The old machinery of the state cannot be used by the revolutionary proletariat. It
must be destroyed. The proletariat creates a new state, based directly upon the industrially organized
producers, upon the industrial unions or Soviets, or a combination of both. It is that state alone,
functioning as a dictatorship of the proletariat, that can realize Socialism. ... While the dictatorship of
the proletariat proforms its negative task of crushing the old order, it performs the positive task of
constructing the new. Together with the government of the proletarian dictatorship, there is developed
a new 'government,' which is no longer government in the old sense, since it concerns itself with the
management of production and not with the government of persons. Out of workers' control of
industry, introduced by the proletarian dictatorship, there develops the complete structure of
Communist Socialism,-industrial self- government of the communistically organized producers. When
this structure is completed, which implies the complete expropriation of the bourgeoisie economically
and politically, the dictatorship of the proletariat ends, in its place coming the full and free social and
individual autonomy of the Communist order. ... It is not a problem of immediate revolution. It is a
problem of the immediate revolutionary struggle. The revolutionary epoch of the final struggle against
Capitalism may last for years and tens of years; but the communist International offers a policy and
program immediate and ultimate in scope, that provides for the immediate class struggle against
Capitalism, in its revolutionary implications, and for the final act of the conquest of power. The old order
is in decay. Civilization is in collapse. The proletarian revolution and the Communist reconstruction of
society-the struggle for these-is now indispensable. This is the message of the Communist International
to the workers of the world. The Communist International calls the proletariat of the world to the final
struggle!'
[ Footnote 3 ] There was testimony at the trial that 'there was an extended strike at Winnipeg
commencing May 15, 1919, during which the production and supply of necessities, transportation,
postal and telegraphic communication and fire and sanitary protection were suspended or seriously
curtailed.'
[ Footnote 4 ] People v. Gitlow, 195 App. Div. 773, 782, 790, 187 N. Y. S. 783, 791.
[ Footnote 5 ] Five judges, constituting the majority of the court, agreed in this view. People v. Gitlow,
234 N. Y. 132, 138, 136 N. E. 317, 320. And the two judges, constituting the minority-who dissented
solely on a question as to the construction of the statute which is not here involved-said in reference to
the Manifesto: 'Revolution for the purpose of overthrowing the present form and the established
political system of the United States government by direct means rather than by constitutional means is
therein clearly advocated and defended ...' p. 154 (136 N. E. 326).
[ Footnote 6 ] Pages 141, 142 (136 N. E. 320).
[ Footnote 7 ] Pages 149, 150 (136 N. E. 324).
[ Footnote 8 ] Exceptions to all of these rulings had been duly taken.
24
[ Footnote 9 ] Compare Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas. 689;
Twining v. New Jersey, 211 U.S. 78, 108 , 29 S. Ct. 14; Coppage v. Kansas, 236 U.S. 1, 17 , 35 S. Ct. 240, L.
R. A. 1915C, 960; Fox v. Washington, 236 U.S. 273, 276 , 35 S. Ct. 383; Schaefer v. United States, 251 U.S.
466, 474 , 40 S. Ct. 259; Gilbert v. Minnesota, 254 U.S. 325, 338 , 41 S. Ct. 125; Meyer v. Nebraska, 262
U.S. 390, 399 , 43 S. Ct. 625, 29 A. L. R. 1446; 2 Story on the Constitution, 5th Ed., 1950, p. 698.
[ Footnote 10 ] This reference is to so much of the decision as relates to the conviction under the third
count. In considering the effect of the decisions under the Espionage Act of 1917 and the amendment of
1918, the distinction must be kept in mind between indictments under those provisions which
specifically punish certain utterances, and those which merely punish specified acts in general terms,
without specific reference to the use of language.
[ Footnote 11 ] Stat. 596.
25
U.S. Supreme Court
WHITNEY v. PEOPLE OF STATE OF CALIFORNIA, 274 U.S. 357 (1927)
274 U.S. 357
WHITNEY
v.
PEOPLE OF STATE OF CALIFORNIA.
No. 3.
Reargued March 18, 1926.
Decided May 16, 1927.
[274 U.S. 357, 359] Messrs. Walter H. Pollak and Walter Nelles, both of New York City, for plaintiff in
error.
Messrs. John H. Riordan and U. S. Webb, both of San Francisco, Cal., for the People of the State of
California.
Mr. Justice SANFORD delivered 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. People v. Whitney, 57 Cal. App. 449, 207 P. 698.
Her petition to have the case heard by the Supreme Court1 was denied. 57 Cal. App. 453, 207 P. 698.
And the case was brought here on a writ of error which was allowed by the Presiding Justice of the Court
of Appeal, the highest court of the State in which a decision could be had. Judicial Code, 237 (Comp. St.
1214).
On the first hearing in this Court, the writ of error was dismissed for want of jurisdiction. 269 U.S. 530 ,
46 S. Ct. 22. Thereafter, a petition for rehearing was granted, 269 U.S. 538 , 46 S. Ct. 120; and the case
was again heard and reargued both as to the jurisdiction and the merits.
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 commis- [274 U.S. 357, 360] sion of
crime, sabotage (which word is hereby defined as meaning willful and malicious physical
damage or injury to physical property), 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; ...
26
'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, willfully, 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.'
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 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 [274 U.S. 357, 373] of unlawful assembly. The mere act of assisting in forming a society
for teaching syndicalism, of becoming a member of it, or 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 attempt, 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.
Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due
process clause 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. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L.
R. 1446; Pierce v. Society of Sisters, 268 U.S. 510 , 45 S. Ct. 571, 39 A. L. R. 468; Gitlow v. New York, 268
U.S. 652, 666 , 45 S. Ct. 625; Farrington v. Tokushige ( No. 465, decided February 21, 1927) 273 U.S. 284 ,
47 S. Ct. 406. These may not be denied or abridged. But, although the rights of free speech and
assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction,
if the particular restriction proposed is required in order to protect the state from destruction or from
serious injury, political, economic or moral. That the necessity which is essential to a valid restriction
does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of
some substantive evil which the state constitutionally may seek to prevent has been settled. See
Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247. [274 U.S. 357, 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 v. New York, 268 U.S. 652, 668 ,
671 S., 45 S. Ct. 625. The Legislature must obviously decide, in the first instance, whether a danger exists
which calls for a particular protective measure. But where a statute is valid only in case certain condition
exist, the enactment of the statute cannot alone establish the facts which are essential to its validity.
27
Prohibitory legislation has repeatedly been held invalid, because unnecessary, where the denial of
liberty involved was that of engaging in a particular business. 2 The powers of the courts to strike down
an offending law are no less when the interests involved are not property rights, but the fundamental
personal rights of free speech and assembly.
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 abridgment 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. [274 U.S. 357, 375]
Those who won our independence believed that the final end of the state was to make men 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 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. 3 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 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 [274 U.S. 357, 376] coerced by law-the argument of force in its worst
form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so
that free speech and assembly should be guaranteed.
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. 4 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
lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is
not a justification for denying free speech where the advocacy falls short 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, 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. [274 U.S. 357, 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, selfreliant 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
28
that it may befall before there is opportunity 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. 5 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.
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 [274 U.S. 357, 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 uninclosed, 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 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 section 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 Cal. 783, 183 P. 437. But it does not preclude inquiry into
the question whether, at the time and under the circumstances, the conditions existed which are
essential to validity under the federal Constitution. As a statute, even if not void on its face, may be
challenged because invalid as applied (Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 , 42 S. Ct.
106), the result of such an inquiry may depend upon the specific facts of the particular case. Whenever
the fundamental rights of free speech and assembly are alleged to have been in- [274 U.S. 357, 379]
vaded, it must remain open to a defendant to present the issue whether there actually did exist at the
time a clear danger, whether the danger, if any, was imminent, and whether the evil apprehended was
one so substantial as to justify the stringent restriction interposed by the Legislature. The legislative
declaration, like the fact that the statute was passed and was sustained by the highest court of the
State, creates merely a rebuttable presumption that these conditions have been satisfied.
Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear
and present danger of serious evil, might have been made the important issue in the case. She might
have required that the issue be determined either by the court or the jury. She claimed below that the
statute as applied to her violated the federal Constitution; but she did not claim that it was void because
there was no clear and present danger of serious evil, nor did she request that the existence of these
29
conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by
the court of a jury. On the other hand, there was evidence on which the court or jury might have found
that such danger existed. I am unable to assent to the suggestion in the opinion of the court that
assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass
action at some date necessarily far in the future, is not a right within the protection of the Fourteenth
Amendment. In the present case, however, there was other testimony which tended to establish the
existence of a conspiracy, on the part of members of the International Workers of the World, to commit
present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of
the society of which Miss Whitney was a member. Under these circumstances the judgment of the State
court cannot be disturbed. [274 U.S. 357, 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
Memphis, 20 Wall. 590; Haire v. Rice, 204 U.S. 291, 301 , 27 S. Ct. 281), but to the particular claims duly
made below, and denied (Seaboard Air Line Ry. v. Duvall, 225 U.S. 477, 485 , 488 S., 32 S. Ct. 790). We
lack here the power occasionally exercised on review of judgments of lower federal courts to correct in
criminal cases vital errors, although the objection was not taken in the trial court. Wiborg v. United
States, 163 U.S. 632, 658 , 660 S., 16 S. Ct. 1127, 1197; Clyatt v. United States, 197 U.S. 207, 221 , 222 S.,
25 S. Ct. 429. This is a writ of error to a state court. Because we may not inquire into the errors now
alleged I concur in affirming the judgment of the state court.
Mr. Justice HOLMES joins in this opinion.
Footnotes
[ Footnote 1 ] Statutes 1919, c. 58, p. 88.
[ Footnote 2 ] Compare Frost v. R. R. Comm. of California, 271 U.S. 583 , 46 S. Ct. 605, 47 A. L. R. 457;
Weaver v. Palmer Bros. Co., 270 U.S. 402 , 46 S. Ct. 320; Jay Burns Baking Co. v. Bryan, 264 U.S. 504 , 44
S. Ct. 412, 32 A. L. R. 661; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , 43 S. Ct. 158, 28 A. L. R. 1321;
Adams v. Tanner, 244 U.S. 590 , 37 S. Ct. 662, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973.
[ Footnote 3 ] 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.'
[ Footnote 4 ] Compare Judge Learned Hand in Masses Publishing Co. v. Patten (D. C .) 244 F. 535, 540;
Judge Amidon in United States v. Fontana, Bull. Dept. Justice No. 148, pp. 4, 5; Chafee, 'Freedom of
Speech,' pp. 46-56, 174.
[ Footnote 5 ] 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 for Home Affairs, Ex parte
O'Brien, ( 1923) 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 Warren, 'The New Liberty
Under the Fourteenth Amendment,' 39 Harvard Law Review, 431, 461.
30
U.S. Supreme Court
DENNIS v. UNITED STATES, 341 U.S. 494 (1951)
341 U.S. 494
DENNIS ET AL. v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 336.
Argued December 4, 1950.
Decided June 4, 1951.
1. As construed and applied in this case, 2 (a) (1), 2 (a) (3) and 3 of the Smith Act, 54 Stat. 671, making it
a crime for any person knowingly or willfully to advocate the overthrow or destruction of the
Government of the United States by force or violence, to organize or help to organize any group which
does so, or to conspire to do so, do not violate the First Amendment or other provisions of the Bill of
Rights and do not violate the First or Fifth Amendments because of indefiniteness. Pp. 495-499, 517.
2. Petitioners, leaders of the Communist Party in this country, were indicted in a federal district court
under 3 of the Smith Act for willfully and knowingly conspiring (1) to organize as the Communist Party a
group of persons to teach and advocate the overthrow and destruction of the Government of the United
States by force and violence, and (2) knowingly and willfully to advocate and teach the duty and
necessity of overthrowing and destroying the Government of the United States by force and violence.
The trial judge instructed the jury that they could not convict unless they found that petitioners
intended to overthrow the Government "as speedily as circumstances would permit" but that, if they so
found, then, as a matter of law, there was sufficient danger of a substantive evil that Congress has a
right to prevent to justify application of the statute under the First Amendment. Petitioners were
convicted and the convictions were sustained by the Court of Appeals. This Court granted certiorari,
limited to the questions: (1) Whether either 2 or 3 of the Smith Act, inherently or as construed and
applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights; and
(2) whether either 2 or 3, inherently or as construed and applied in the instant case, violates the First
and Fifth Amendments because of indefiniteness. Held: The convictions are affirmed. Pp. 495-499, 511512, 517.
183 F.2d 201, affirmed. [341 U.S. 494, 495]
For the opinions of the Justices constituting the majority of the Court, see:
Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE REED,
MR. JUSTICE BURTON and MR. JUSTICE MINTON, p. 495.
Opinion of MR. JUSTICE FRANKFURTER, p. 517.
Opinion of MR. JUSTICE JACKSON, p. 561.
For the dissenting opinion of MR. JUSTICE BLACK, see p. 579.
For the dissenting opinion of MR. JUSTICE DOUGLAS, see p. 581.
The case is stated in the opinion of THE CHIEF JUSTICE, pp. 495-499. Affirmed, p. 517.
31
George W. Crockett, Jr., Abraham J. Isserman and Harry Sacher argued the cause for petitioners. With
them on the brief was Richard Gladstein.
Solicitor General Perlman and Irving S. Shapiro argued the cause for the United States. With them on the
brief were Attorney General McGrath, Assistant Attorney General McInerney, Irving H. Saypol, Robert
W. Ginnane, Frank H. Gordon, Edward C. Wallace and Lawrence K. Bailey.
MR. CHIEF JUSTICE VINSON announced the judgment of the Court and an opinion in which MR. JUSTICE
REED, MR. JUSTICE BURTON and MR. JUSTICE MINTON join.
Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the Smith Act, 54
Stat. 671, 18 U.S.C. (1946 ed.) 11, during the period of April, 1945, to July, 1948. The pretrial motion to
quash the indictment on the grounds, inter alia, that the statute was unconstitutional was denied,
United States v. Foster, 80 F. Supp. 479, and the case was set for trial on January 17, 1949. A verdict of
guilty as to all the petitioners was returned by the jury on October 14, 1949. The Court of Appeals
affirmed the convictions. 183 F.2d 201. We granted certiorari, 340 U.S. 863 , limited to the following two
questions: (1) Whether either 2 or 3 of the Smith [341 U.S. 494, 496] Act, inherently or as construed
and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights;
(2) whether either 2 or 3 of the Act, inherently or as construed and applied in the instant case, violates
the First and Fifth Amendments because of indefiniteness.
Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) 10, 11 (see present 18 U.S.C. 2385),
provide as follows:
"SEC. 2. (a) It shall be unlawful for any person "(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or
propriety of overthrowing or destroying any government in the United States by force or
violence, or by the assassination of any officer of any such government;
"(2) with intent to cause the overthrow or destruction of any government in the United States,
to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed
matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of
overthrowing or destroying any government in the United States by force or violence;
"(3) to organize or help to organize any society, group, or assembly of persons who teach,
advocate, or encourage the overthrow or destruction of any government in the United States by
force or violence; or to be or become a member of, or affiliate with, any such society, group, or
assembly of persons, knowing the purposes thereof.
"(b) For the purposes of this section, the term `government in the United States' means the
Government of the United States, the government of any State, Territory, or possession of the
United States, the government of the District of Columbia, or the [341 U.S. 494, 497]
government of any political subdivision of any of them.
"SEC. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any
of the acts prohibited by the provisions of this title."
The indictment charged the petitioners with wilfully and knowingly conspiring (1) to organize as the
Communist Party of the United States of America a society, group and assembly of persons who teach
and advocate the overthrow and destruction of the Government of the United States by force and
violence, and (2) knowingly and wilfully to advocate and teach the duty and necessity of overthrowing
and destroying the Government of the United States by force and violence. The indictment further
32
alleged that 2 of the Smith Act proscribes these acts and that any conspiracy to take such action is a
violation of 3 of the Act.
The trial of the case extended over nine months, six of which were devoted to the taking of evidence,
resulting in a record of 16,000 pages. Our limited grant of the writ of certiorari has removed from our
consideration any question as to the sufficiency of the evidence to support the jury's determination that
petitioners are guilty of the offense charged. Whether on this record petitioners did in fact advocate the
overthrow of the Government by force and violence is not before us, and we must base any discussion
of this point upon the conclusions stated in the opinion of the Court of Appeals, which treated the issue
in great detail. That court held that the record in this case amply supports the necessary finding of the
jury that petitioners, the leaders of the Communist Party in this country, were unwilling to work within
our framework of democracy, but intended to initiate a violent revolution whenever the propitious
occasion appeared. Petitioners dispute the meaning to be drawn from the evidence, contending that the
Marxist-Leninist [341 U.S. 494, 498] doctrine they advocated taught that force and violence to achieve
a Communist form of government in an existing democratic state would be necessary only because the
ruling classes of that state would never permit the transformation to be accomplished peacefully, but
would use force and violence to defeat any peaceful political and economic gain the Communists could
achieve. But the Court of Appeals held that the record supports the following broad conclusions: By
virtue of their control over the political apparatus of the Communist Political Association, 1 petitioners
were able to transform that organization into the Communist Party; that the policies of the Association
were changed from peaceful cooperation with the United States and its economic and political structure
to a policy which had existed before the United States and the Soviet Union were fighting a common
enemy, namely, a policy which worked for the overthrow of the Government by force and violence; that
the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use
of aliases, and double-meaning language; that the Party is rigidly controlled; that Communists, unlike
other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that
the approved program is slavishly followed by the members of the Party; that the literature of the Party
and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the
Party was, during the period in question, to achieve a successful overthrow of the existing order by force
and violence. [341 U.S. 494, 499]
I.
It will be helpful in clarifying the issues to treat next the contention that the trial judge improperly
interpreted the statute by charging that the statute required an unlawful intent before the jury could
convict. More specifically, he charged that the jury could not find the petitioners guilty under the
indictment unless they found that petitioners had the intent to "overthrow . . . the Government of the
United States by force and violence as speedily as circumstances would permit."
Section 2 (a) (1) makes it unlawful "to knowingly or willfully advocate, . . . or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the United States by force or
violence . . . ."; Section 2 (a) (3), "to organize or help to organize any society, group, or assembly of
persons who teach, advocate, or encourage the overthrow . . . ." Because of the fact that 2 (a) (2)
expressly requires a specific intent to overthrow the Government, and because of the absence of precise
language in the foregoing subsections, it is claimed that Congress deliberately omitted any such
requirement. We do not agree. It would require a far greater indication of congressional desire that
intent not be made an element of the crime than the use of the disjunctive "knowingly or willfully" in 2
(a) (1), or the omission of exact language in 2 (a) (3). The structure and purpose of the statute demand
33
the inclusion of intent as an element of the crime. Congress was concerned with those who advocate
and organize for the overthrow of the Government. Certainly those who recruit and combine for the
purpose of advocating overthrow intend to bring about that overthrow. We hold that the statute
requires as an essential element of the crime proof of the intent of those who are charged with its
violation to overthrow the Government by force and violence. See [341 U.S. 494, 500] Williams v.
United States, 341 U.S. 97, 101 -102 (1951); Screws v. United States, 325 U.S. 91, 101 -105 (1945);
Cramer v. United States, 325 U.S. 1, 31 (1945).
Nor does the fact that there must be an investigation of a state of mind under this interpretation afford
any basis for rejection of that meaning. A survey of Title 18 of the U.S. Code indicates that the vast
majority of the crimes designated by that Title require, by express language, proof of the existence of a
certain mental state, in words such as "knowingly," "maliciously," "wilfully," "with the purpose of," "with
intent to," or combinations or permutations of these and synonymous terms. The existence of a mens
rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.
See American Communications Assn. v. Douds, 339 U.S. 382, 411 (1950).
It has been suggested that the presence of intent makes a difference in the law when an "act otherwise
excusable or carrying minor penalties" is accompanied by such an evil intent. Yet the existence of such
an intent made the killing condemned in Screws, supra, and the beating in Williams, supra, both clearly
and severely punishable under state law, offenses constitutionally punishable by the Federal
Government. In those cases, the Court required the Government to prove that the defendants intended
to deprive the victim of a constitutional right. If that precise mental state may be an essential element of
a crime, surely an intent to overthrow the Government of the United States by advocacy thereof is
equally susceptible of proof. 2 [341 U.S. 494, 501]
II.
The obvious purpose of the statute is to protect existing Government, not from change by peaceable,
lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within
the power of the Congress to protect the Government of the United States from armed rebellion is a
proposition which requires little discussion. Whatever theoretical merit there may be to the argument
that there is a "right" to rebellion against dictatorial governments is without force where the existing
structure of the government provides for peaceful and orderly change. We reject any principle of
governmental helplessness in the face of preparation for revolution, which principle, carried to its logical
conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to
prohibit acts intended to overthrow the Government by force and violence. The question with which we
are concerned here is not whether Congress has such power, but whether the means which it has
employed conflict with the First and Fifth Amendments to the Constitution.
One of the bases for the contention that the means which Congress has employed are invalid takes the
form of an attack on the face of the statute on the grounds that by its terms it prohibits academic
discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a free
speech and a free press. Although we do not agree that the language itself has that significance, we
must bear in mind that it is the duty of the federal courts to interpret federal legislation in a manner not
inconsistent with the demands of the Constitution. American Communications Assn. v. Douds, 339 U.S.
382, 407 (1950). We are not here confronted with cases similar to Thornhill v. Alabama, 310 U.S. 88
(1940); Herndon v. Lowry, 301 U.S. 242 (1937); and De Jonge v. Oregon, 299 U.S. 353 (1937), [341 U.S.
494, 502] where a state court had given a meaning to a state statute which was inconsistent with the
34
Federal Constitution. This is a federal statute which we must interpret as well as judge. Herein lies the
fallacy of reliance upon the manner in which this Court has treated judgments of state courts. Where
the statute as construed by the state court transgressed the First Amendment, we could not but
invalidate the judgments of conviction.
The very language of the Smith Act negates the interpretation which petitioners would have us impose
on that Act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged the jury that
they could not convict if they found that petitioners did "no more than pursue peaceful studies and
discussions or teaching and advocacy in the realm of ideas." He further charged that it was not unlawful
"to conduct in an American college or university a course explaining the philosophical theories set forth
in the books which have been placed in evidence." Such a charge is in strict accord with the statutory
language, and illustrates the meaning to be placed on those words. Congress did not intend to eradicate
the free discussion of political theories, to destroy the traditional rights of Americans to discuss and
evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very
kind of activity in which the evidence showed these petitioners engaged.
III.
But although the statute is not directed at the hypothetical cases which petitioners have conjured, its
application in this case has resulted in convictions for the teaching and advocacy of the overthrow of the
Government by force and violence, which, even though coupled with the intent to accomplish that
overthrow, contains an element of speech. For this reason, we must pay special [341 U.S. 494, 503]
heed to the demands of the First Amendment marking out the boundaries of speech.
We pointed out in Douds, supra, that the basis of the First Amendment is the hypothesis that speech can
rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest
governmental policies. It is for this reason that this Court has recognized the inherent value of free
discourse. An analysis of the leading cases in this Court which have involved direct limitations on speech,
however, will demonstrate that both the majority of the Court and the dissenters in particular cases
have recognized that this is not an unlimited, unqualified right, but that the societal value of speech
must, on occasion, be subordinated to other values and considerations.
No important case involving free speech was decided by this Court prior to Schenck v. United States, 249
U.S. 47 (1919). Indeed, the summary treatment accorded an argument based upon an individual's claim
that the First Amendment protected certain utterances indicates that the Court at earlier dates placed
no unique emphasis upon that right. 3 It was not until the classic dictum of Justice Holmes in the
Schenck case that speech per se received that emphasis in a majority opinion. That case involved a
conviction under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced was whether
the evidence was sufficient to sustain the conviction. Writing for a unanimous Court, Justice Holmes
stated that 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 [341 U.S. 494, 504] to prevent." 249 U.S. at 52. But the force of even this
expression is considerably weakened by the reference at the end of the opinion to Goldman v. United
States, 245 U.S. 474 (1918), a prosecution under the same statute. Said Justice Holmes, "Indeed
[Goldman] might be said to dispose of the present contention if the precedent covers all media
concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a
few words." 249 U.S. at 52. The fact is inescapable, too, that the phrase bore no connotation that the
danger was to be any threat to the safety of the Republic. The charge was causing and attempting to
35
cause insubordination in the military forces and obstruct recruiting. The objectionable document
denounced conscription and its most inciting sentence was, "You must do your share to maintain,
support and uphold the rights of the people of this country." 249 U.S. at 51. Fifteen thousand copies
were printed and some circulated. This insubstantial gesture toward insubordination in 1917 during war
was held to be a clear and present danger of bringing about the evil of military insubordination.
In several later cases involving convictions under the Criminal Espionage Act, the nub of the evidence
the Court held sufficient to meet the "clear and present danger" test enunciated in Schenck was as
follows: Frohwerk v. United States, 249 U.S. 204 (1919) - publication of twelve newspaper articles
attacking the war; Debs v. United States, 249 U.S. 211 (1919) - one speech attacking United States'
participation in the war; Abrams v. United States, 250 U.S. 616 (1919) - circulation of copies of two
different socialist circulars attacking the war; Schaefer v. United States, 251 U.S. 466 (1920) - publication
of a German-language newspaper with allegedly false articles, critical of capitalism and the war; Pierce v.
United States, 252 U.S. 239 (1920) - circulation of copies of a four-page pamphlet written by a
clergyman, attacking [341 U.S. 494, 505] the purposes of the war and United States' participation
therein. Justice Holmes wrote the opinions for a unanimous Court in Schenck, Frohwerk and Debs. He
and Justice Brandeis dissented in Abrams, Schaefer and Pierce. The basis of these dissents was that,
because of the protection which the First Amendment gives to speech, the evidence in each case was
insufficient to show that the defendants had created the requisite danger under Schenck. But these
dissents did not mark a change of principle. The dissenters doubted only the probable effectiveness of
the puny efforts toward subversion. In Abrams, they wrote, "I do not doubt for a moment that by the
same reasoning that would justify punishing persuasion to murder, the United States constitutionally
may punish speech that produces or is intended to produce a clear and imminent danger that it will
bring about forthwith certain substantive evils that the United States constitutionally may seek to
prevent." 250 U.S. at 627. And in Schaefer the test was said to be one of "degree," 251 U.S. at 482,
although it is not clear whether "degree" refers to clear and present danger or evil. Perhaps both were
meant.
The rule we deduce from these cases is that where an offense is specified by a statute in nonspeech or
nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained
only when the speech or publication created a "clear and present danger" of attempting or
accomplishing the prohibited crime, e. g., interference with enlistment. The dissents, we repeat, in
emphasizing the value of speech, were addressed to the argument of the sufficiency of the evidence.
The next important case 4 before the Court in which free speech was the crux of the conflict was Gitlow
v. New York, 268 U.S. 652 (1925). There New York had [341 U.S. 494, 506] made it a crime to advocate
"the necessity or propriety of overthrowing . . . organized government by force . . . ." The evidence of
violation of the statute was that the defendant had published a Manifesto attacking the Government
and capitalism. The convictions were sustained, Justices Holmes and Brandeis dissenting. The majority
refused to apply the "clear and present danger" test to the specific utterance. Its reasoning was as
follows: The "clear and present danger" test was applied to the utterance itself in Schenck because the
question was merely one of sufficiency of evidence under an admittedly constitutional statute. Gitlow,
however, presented a different question. There a legislature had found that a certain kind of speech
was, itself, harmful and unlawful. The constitutionality of such a state statute had to be adjudged by this
Court just as it determined the constitutionality of any state statute, namely, whether the statute was
"reasonable." Since it was entirely reasonable for a state to attempt to protect itself from violent
overthrow, the statute was perforce reasonable. The only question remaining in the case became
whether there was evidence to support the conviction, a question which gave the majority no difficulty.
36
Justices Holmes and Brandeis refused to accept this approach, but insisted that wherever speech was
the evidence of the violation, it was necessary to show that the speech created the "clear and present
danger" of the substantive evil which the legislature had the right to prevent. Justices Holmes and
Brandeis, then, made no distinction between a federal statute which made certain acts unlawful, the
evidence to support the conviction being speech, and a statute which made speech itself the crime. This
approach was emphasized in Whitney v. California, 274 U.S. 357 (1927), where the Court was
confronted with a conviction under the California Criminal Syndicalist statute. The Court sustained the
conviction, Justices Brandeis and Holmes [341 U.S. 494, 507] concurring in the result. In their
concurrence they repeated that even though the legislature had designated certain speech as criminal,
this could not prevent the defendant from showing that there was no danger that the substantive evil
would be brought about.
Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in
those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis
rationale. 5 And in American Communications Assn. v. Douds, supra, we were called upon to decide the
validity of 9 (h) of the Labor Management Relations Act of 1947. That section required officials of unions
which desired to avail themselves of the facilities of the National Labor Relations Board to take oaths
that they did not belong to the Communist Party and that they did not believe in the overthrow of the
Government by force and violence. We pointed out that Congress did not intend to punish belief, but
rather intended to regulate the conduct of union affairs. We therefore held that any indirect sanction on
speech which might arise from the oath requirement did not present a proper case for the "clear and
present danger" test, for the regulation was aimed at conduct rather than speech. In discussing the
proper measure of evaluation of this kind of legislation, we suggested that the Holmes-Brandeis
philosophy insisted that where [341 U.S. 494, 508] there was a direct restriction upon speech, a "clear
and present danger" that the substantive evil would be caused was necessary before the statute in
question could be constitutionally applied. And we stated, "[The First] Amendment requires that one be
permitted to believe what he will. It requires that one be permitted to advocate what he will unless
there is a clear and present danger that a substantial public evil will result therefrom." 339 U.S. at 412.
But we further suggested that neither Justice Holmes nor Justice Brandeis ever envisioned that a
shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the
circumstances of each case. Speech is not an absolute, above and beyond control by the legislature
when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to
warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no
absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations
which gave birth to the nomenclature. See American Communications Assn. v. Douds, 339 U.S. at 397.
To those who would paralyze our Government in the face of impending threat by encasing it in a
semantic straitjacket we must reply that all concepts are relative.
In this case we are squarely presented with the application of the "clear and present danger" test, and
must decide what that phrase imports. We first note that many of the cases in which this Court has
reversed convictions by use of this or similar tests have been based on the fact that the interest which
the State was attempting to protect was itself too insubstantial to warrant restriction of speech. In this
category we may put such cases as Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310
U.S. 296 (1940); Martin v. Struthers, 319 U.S. 141 (1943); West Virginia Board of Education [341 U.S.
494, 509] v. Barnette, 319 U.S. 624 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Marsh v. Alabama,
326 U.S. 501 (1946); but cf. Prince v. Massachusetts, 321 U.S. 158 (1944); Cox v. New Hampshire, 312
U.S. 569 (1941). Overthrow of the Government by force and violence is certainly a substantial enough
interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a
37
society cannot protect its very structure from armed internal attack, it must follow that no subordinate
value can be protected. If, then, this interest may be protected, the literal problem which is presented is
what has been meant by the use of the phrase "clear and present danger" of the utterances bringing
about the evil within the power of Congress to punish.
Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is
about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a
group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course
whereby they will strike when the leaders feel the circumstances permit, action by the Government is
required. The argument that there is no need for Government to concern itself, for Government is
strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs
no answer. For that is not the question. Certainly an attempt to overthrow the Government by force,
even though doomed from the outset because of inadequate numbers of power of the revolutionists, is
a sufficient evil for Congress to prevent. The damage which such attempts create both physically and
politically to a nation makes it impossible to measure the validity in terms of the probability of success,
or the immediacy of a successful attempt. In the instant case the trial judge charged the jury that they
could not convict unless they found that petitioners intended to overthrow the Government [341 U.S.
494, 510] "as speedily as circumstances would permit." This does not mean, and could not properly
mean, that they would not strike until there was certainty of success. What was meant was that the
revolutionists would strike when they thought the time was ripe. We must therefore reject the
contention that success or probability of success is the criterion.
The situation with which Justices Holmes and Brandeis were concerned in Gitlow was a comparatively
isolated event, bearing little relation in their minds to any substantial threat to the safety of the
community. Such also is true of cases like Fiske v. Kansas, 274 U.S. 380 (1927), and De Jonge v. Oregon,
299 U.S. 353 (1937); but cf. Lazar v. Pennsylvania, 286 U.S. 532 (1932). They were not confronted with
any situation comparable to the instant one - the development of an apparatus designed and dedicated
to the overthrow of the Government, in the context of world crisis after crisis.
Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: "In each
case [courts] must ask whether the gravity of the `evil,' discounted by its improbability, justifies such
invasion of free speech as is necessary to avoid the danger." 183 F.2d at 212. We adopt this statement
of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might
devise at this time. It takes into consideration those factors which we deem relevant, and relates their
significances. More we cannot expect from words.
Likewise, we are in accord with the court below, which affirmed the trial court's finding that the
requisite danger existed. The mere fact that from the period 1945 to 1948 petitioners' activities did not
result in an attempt to overthrow the Government by force and violence is of course no answer to the
fact that there was a group that was ready to make the attempt. The formation [341 U.S. 494, 511] by
petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when
the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable
nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our
relations with countries with whom petitioners were in the very least ideologically attuned, convince us
that their convictions were justified on this score. And this analysis disposes of the contention that a
conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained,
because it comprises only the preparation. It is the existence of the conspiracy which creates the
danger. Cf. Pinkerton v. United States, 328 U.S. 640 (1946); Goldman v. United States, 245 U.S. 474
38
(1918); United States v. Rabinowich, 238 U.S. 78 (1915). If the ingredients of the reaction are present,
we cannot bind the Government to wait until the catalyst is added.
IV.
Although we have concluded that the finding that there was a sufficient danger to warrant the
application of the statute was justified on the merits, there remains the problem of whether the trial
judge's treatment of the issue was correct. He charged the jury, in relevant part, as follows:
"In further construction and interpretation of the statute I charge you that it is not the abstract
doctrine of overthrowing or destroying organized government by unlawful means which is
denounced by this law, but the teaching and advocacy of action for the accomplishment of that
purpose, by language reasonably and ordinarily calculated to incite persons to such action.
Accordingly, you cannot find the defendants or any of them guilty of the crime charged [341 U.S.
494, 512] unless you are satisfied beyond a reasonable doubt that they conspired to organize a
society, group and assembly of persons who teach and advocate the overthrow or destruction
of the Government of the United States by force and violence and to advocate and teach the
duty and necessity of overthrowing or destroying the Government of the United States by force
and violence, with the intent that such teaching and advocacy be of a rule or principle of action
and by language reasonably and ordinarily calculated to incite persons to such action, all with
the intent to cause the overthrow or destruction of the Government of the United States by
force and violence as speedily as circumstances would permit.
.....
"If you are satisfied that the evidence establishes beyond a reasonable doubt that the
defendants, or any of them, are guilty of a violation of the statute, as I have interpreted it to
you, I find as matter of law that there is sufficient danger of a substantive evil that the Congress
has a right to prevent to justify the application of the statute under the First Amendment of the
Constitution.
"This is matter of law about which you have no concern. It is a finding on a matter of law which I
deem essential to support my ruling that the case should be submitted to you to pass upon the
guilt or innocence of the defendants. . . ."
It is thus clear that he reserved the question of the existence of the danger for his own determination,
and the question becomes whether the issue is of such a nature that it should have been submitted to
the jury.
The first paragraph of the quoted instructions calls for the jury to find the facts essential to establish the
substantive crime, violation of 2 (a) (1) and 2 (a) (3) of [341 U.S. 494, 513] the Smith Act, involved in the
conspiracy charge. There can be no doubt that if the jury found those facts against the petitioners
violation of the Act would be established. The argument that the action of the trial court is erroneous, in
declaring as a matter of law that such violation shows sufficient danger to justify the punishment
despite the First Amendment, rests on the theory that a jury must decide a question of the application
of the First Amendment. We do not agree.
When facts are found that establish the violation of a statute, the protection against conviction afforded
by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger
of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law
by the courts. The guilt is established by proof of facts. Whether the First Amendment protects the
39
activity which constitutes the violation of the statute must depend upon a judicial determination of the
scope of the First Amendment applied to the circumstances of the case.
Petitioners' reliance upon Justice Brandeis' language in his concurrence in Whitney, supra, is misplaced.
In that case Justice Brandeis pointed out that the defendant could have made the existence of the
requisite danger the important issue at her trial, but that she had not done so. In discussing this failure,
he stated that the defendant could have had the issue determined by the court or the jury. 6 No realistic
construction of this disjunctive language [341 U.S. 494, 514] could arrive at the conclusion that he
intended to state that the question was only determinable by a jury. Nor is the incidental statement of
the majority in Pierce, supra, of any more persuasive effect. 7 There the issue of the probable effect of
the publication had been submitted to the jury, and the majority was apparently addressing its remarks
to the contention of the dissenters that the jury could not reasonably have returned a verdict of guilty
on the evidence. 8 Indeed, in the very case in which the phrase was born, Schenck, this Court itself
examined the record to find whether the requisite danger appeared, and the issue was not submitted to
a jury. And in every later case in which the Court has measured the validity of a statute by the "clear and
present danger" test, that determination has been by the court, the question of the danger not being
submitted to the jury.
The question in this case is whether the statute which the legislature has enacted may be
constitutionally applied. In other words, the Court must examine judicially [341 U.S. 494, 515] the
application of the statute to the particular situation, to ascertain if the Constitution prohibits the
conviction. We hold that the statute may be applied where there is a "clear and present danger" of the
substantive evil which the legislature had the right to prevent. Bearing, as it does, the marks of a
"question of law," the issue is properly one for the judge to decide.
V.
There remains to be discussed the question of vagueness - whether the statute as we have interpreted it
is too vague, not sufficiently advising those who would speak of the limitations upon their activity. It is
urged that such vagueness contravenes the First and Fifth Amendments. This argument is particularly
nonpersuasive when presented by petitioners, who, the jury found, intended to overthrow the
Government as speedily as circumstances would permit. See Abrams v. United States, 250 U.S. 616, 627
-629 (1919) (dissenting opinion); Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion);
Taylor v. Mississippi, 319 U.S. 583, 589 (1943). A claim of guilelessness ill becomes those with evil intent.
Williams v. United States, 341 U.S. 97, 101 -102 (1951); Jordan v. De George, 341 U.S. 223, 230 -232
(1951); American Communications Assn. v. Douds, 339 U.S. at 413; Screws v. United States, 325 U.S. 91,
101 (1945).
We agree that the standard as defined is not a neat, mathematical formulary. Like all verbalizations it is
subject to criticism on the score of indefiniteness. But petitioners themselves contend that the
verbalization "clear and present danger" is the proper standard. We see no difference, from the
standpoint of vagueness, whether the standard of "clear and present danger" is one contained in haec
verba within the statute, or whether it is the judicial measure of constitutional applicability. We [341
U.S. 494, 516] have shown the indeterminate standard the phrase necessarily connotes. We do not
think we have rendered that standard any more indefinite by our attempt to sum up the factors which
are included within its scope. We think it well serves to indicate to those who would advocate
constitutionally prohibited conduct that there is a line beyond which they may not go - a line which they,
in full knowledge of what they intend and the circumstances in which their activity takes place, will well
40
appreciate and understand. Williams, supra, at 101-102; Jordan, supra, at 230-232; United States v.
Petrillo, 332 U.S. 1, 7 (1948); United States v. Wurzbach, 280 U.S. 396, 399 (1930); Nash v. United States,
229 U.S. 373, 376 -377 (1913). Where there is doubt as to the intent of the defendants, the nature of
their activities, or their power to bring about the evil, this Court will review the convictions with the
scrupulous care demanded by our Constitution. But we are not convinced that because there may be
borderline cases at some time in the future, these convictions should be reversed because of the
argument that these petitioners could not know that their activities were constitutionally proscribed by
the statute.
We have not discussed many of the questions which could be extracted from the record, although they
were treated in detail by the court below. Our limited grant of the writ of certiorari has withdrawn from
our consideration at this date those questions, which include, inter alia, sufficiency of the evidence,
composition of jury, and conduct of the trial.
We hold that 2 (a) (1), 2 (a) (3) and 3 of the Smith Act do not inherently, or as construed or applied in
the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and
Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the Government of the
United States as speedily as the circumstances would permit. Their conspiracy [341 U.S. 494, 517] to
organize the Communist Party and to teach and advocate the overthrow of the Government of the
United States by force and violence created a "clear and present danger" of an attempt to overthrow
the Government by force and violence. They were properly and constitutionally convicted for violation
of the Smith Act. The judgments of conviction are
Affirmed.
MR. JUSTICE CLARK took no part in the consideration or decision of this case.
Footnotes
[ Footnote 1 ] Following the dissolution of the Communist International in 1943, the Communist Party of
the United States dissolved and was reconstituted as the Communist Political Association. The program
of this Association was one of cooperation between labor and management, and, in general, one
designed to achieve national unity and peace and prosperity in the post-war period.
[ Footnote 2 ] We have treated this point because of the discussion accorded it by the Court of Appeals
and its importance to the administration of this statute, compare Johnson v. United States, 318 U.S. 189
(1943), although petitioners themselves requested a charge similar to the one given, and under Rule 30
of the Federal Rules of Criminal Procedure would appear to be barred from raising this point on appeal.
Cf. Boyd v. United States, 271 U.S. 104 (1926).
[ Footnote 3 ] Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918); Fox v. Washington, 236 U.S.
273 (1915); Davis v. Massachusetts, 167 U.S. 43 (1897); see Gompers v. Bucks Stove & Range Co., 221
U.S. 418, 439 (1911); Robertson v. Baldwin, 165 U.S. 275, 281 (1897).
[ Footnote 4 ] Cf. Gilbert v. Minnesota, 254 U.S. 325 (1920).
[ Footnote 5 ] Contempt of court: Craig v. Harney, 331 U.S. 367, 373 (1947); Pennekamp v. Florida, 328
U.S. 331, 333 -336 (1946); Bridges v. California, 314 U.S. 252, 260 -263 (1941).
41
Validity of state statute: Thomas v. Collins, 323 U.S. 516, 530 (1945); Taylor v. Mississippi, 319 U.S. 583,
589 -590 (1943); Thornhill v. Alabama, 310 U.S. 88, 104 -106 (1940).
Validity of local ordinance or regulation: West Virginia Board of Education v. Barnette, 319 U.S. 624, 639
(1943); Carlson v. California, 310 U.S. 106, 113 (1940).
Common law offense: Cantwell v. Connecticut, 310 U.S. 296, 308 , 311 (1940).
[ Footnote 6 ] "Whether in 1919, when Miss Whitney did the things complained of, there was in
California such clear and present danger of serious evil, might have been made the important issue in
the case. She might have required that the issue be determined either by the court or the jury. She
claimed below that the statute as applied to her violated the Federal Constitution; but she did not claim
that it was void because there was no clear and present danger of serious evil, nor did she request that
the existence of these conditions of a valid [341 U.S. 494, 514] measure thus restricting the rights of
free speech and assembly be passed upon by the court or a jury. On the other hand, there was evidence
on which the court or jury might have found that such danger existed." (Emphasis added.) 274 U.S. at
379.
[ Footnote 7 ] "Whether the printed words would in fact produce as a proximate result a material
interference with the recruiting or enlistment service, or the operation or success of the forces of the
United States, was a question for the jury to decide in view of all the circumstances of the time and
considering the place and manner of distribution." 252 U.S. 239, 250 (1920).
[ Footnote 8 ] A similarly worded expression is found in that part of the majority opinion sustaining the
overruling of the defendants' general demurrer to the indictment. 252 U.S. at 244. Since the defendants
had not raised the issue of "clear and present danger" at the trial, it is clear that the Court was not faced
with the question whether the trial judge erred in not determining, as a conclusive matter, the existence
or nonexistence of a "clear and present danger." The only issue to which the remarks were addressed
was whether the indictment sufficiently alleged the violation.
MR. JUSTICE FRANKFURTER, concurring in affirmance of the judgment.
The defendants were convicted under 3 of the Smith Act for conspiring to violate 2 of that Act, which
makes it unlawful "to organize or help to organize any society, group, or assembly of persons who teach,
advocate, or encourage the overthrow or destruction of any government in the United States by force or
violence." Act of June 28, 1940, 2 (a) (3), 54 Stat. 670, 671, 18 U.S.C. 10, now 18 U.S.C. 2385. The
substance of the indictment is that the defendants between April 1, 1945, and July 20, 1948, agreed to
bring about the dissolution of a body known as the Communist Political Association and to organize in its
place the Communist Party of the United States; that the aim of the new party was "the overthrow and
destruction of the Government of the United States by force and violence"; that the defendants were to
assume leadership of the Party and to recruit members for it and that the Party was to publish books
and conduct classes, teaching the duty and the necessity of forceful overthrow. The jury found all the
defendants guilty. With one exception, each was sentenced to imprisonment for five years and to a fine
of $10,000. The convictions were affirmed by the Court of Appeals for the Second [341 U.S. 494, 518]
Circuit. 183 F.2d 201. We were asked to review this affirmance on all the grounds considered by the
Court of Appeals. These included not only the scope of the freedom of speech guaranteed by the
Constitution, but also serious questions regarding the legal composition of the jury and the fair conduct
42
of the trial. We granted certiorari, strictly limited, however, to the contention that 2 and 3 of the Smith
Act, inherently and as applied, violated the First and Fifth Amendments. 340 U.S. 863 . No attempt was
made to seek an enlargement of the range of questions thus defined, and these alone are now open for
our consideration. All others are foreclosed by the decision of the Court of Appeals.
As thus limited, the controversy in this Court turns essentially on the instructions given to the jury for
determining guilt or innocence. 9 F. R. D. 367. The first question is whether - wholly apart from
constitutional matters - the judge's charge properly explained to the jury what it is that the Smith Act
condemns. The conclusion that he did so requires no labored argument. On the basis of the instructions,
the jury found, for the purpose of our review, that the advocacy which the defendants conspired to
promote was to be a rule of action, by language reasonably calculated to incite persons to such action,
and was intended to cause the overthrow of the Government by force and violence as soon as
circumstances permit. This brings us to the ultimate issue. In enacting a statute which makes it a crime
for the defendants to conspire to do what they have been found to have conspired to do, did Congress
exceed its constitutional power?
Few questions of comparable import have come before this Court in recent years. The appellants
maintain that they have a right to advocate a political theory, so long, at least, as their advocacy does
not create an immediate danger of obvious magnitude to the very existence of [341 U.S. 494, 519] our
present scheme of society. On the other hand, the Government asserts the right to safeguard the
security of the Nation by such a measure as the Smith Act. Our judgment is thus solicited on a conflict of
interests of the utmost concern to the well-being of the country. This conflict of interests cannot be
resolved by a dogmatic preference for one or the other, nor by a sonorous formula which is in fact only a
euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we cannot
escape a candid examination of the conflicting claims with full recognition that both are supported by
weighty title-deeds.
I.
There come occasions in law, as elsewhere, when the familiar needs to be recalled. Our whole history
proves even more decisively than the course of decisions in this Court that the United States has the
powers inseparable from a sovereign nation. "America has chosen to be, in many respects, and to many
purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is
competent." Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 414. The right of a government
to maintain its existence - self-preservation - is the most pervasive aspect of sovereignty. "Security
against foreign danger," wrote Madison, "is one of the primitive objects of civil society." The Federalist,
No. 41. The constitutional power to act upon this basic principle has been recognized by this Court at
different periods and under diverse circumstances. "To preserve its independence, and give security
against foreign aggression and encroachment, is the highest duty of every nation, and to attain these
ends nearly all other considerations are to be subordinated. It matters not in what form such aggression
and encroachment come . . . . The government, possessing the powers which are to be exercised [341
U.S. 494, 520] for protection and security, is clothed with authority to determine the occasion on which
the powers shall be called forth . . . ." Chinese Exclusion Case, 130 U.S. 581, 606 . See also De Lima v.
Bidwell, 182 U.S. 1 ; Mackenzie v. Hare, 239 U.S. 299 ; Missouri v. Holland, 252 U.S. 416 ; United States v.
Curtiss-Wright Corp., 299 U.S. 304 . The most tragic experience in our history is a poignant reminder that
the Nation's continued existence may be threatened from within. To protect itself from such threats, the
Federal Government "is invested with all those inherent and implied powers which, at the time of
adopting the Constitution, were generally considered to belong to every government as such, and as
43
being essential to the exercise of its functions." Mr. Justice Bradley, concurring in Legal Tender Cases, 12
Wall. 457, 554, 556; and see In re Debs, 158 U.S. 564, 582 .
But even the all-embracing power and duty of self-preservation are not absolute. Like the war power,
which is indeed an aspect of the power of self-preservation, it is subject to applicable constitutional
limitations. See Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156 . Our Constitution has no
provision lifting restrictions upon governmental authority during periods of emergency, although the
scope of a restriction may depend on the circumstances in which it is invoked.
The First Amendment is such a restriction. It exacts obedience even during periods of war; it is
applicable when war clouds are not figments of the imagination no less than when they are. The First
Amendment categorically demands that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances." The right of a man to think what he [341 U.S. 494, 521] pleases, to write what he thinks,
and to have his thoughts made available for others to hear or read has an engaging ring of universality.
The Smith Act and this conviction under it no doubt restrict the exercise of free speech and assembly.
Does that, without more, dispose of the matter?
Just as there are those who regard as invulnerable every measure for which the claim of national
survival is invoked, there are those who find in the Constitution a wholly unfettered right of expression.
Such literalness treats the words of the Constitution as though they were found on a piece of outworn
parchment instead of being words that have called into being a nation with a past to be preserved for
the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry. The historic
antecedents of the First Amendment preclude the notion that its purpose was to give unqualified
immunity to every expression that touched on matters within the range of political interest. The
Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three
convictions for political libels obtained between 1799 and 1803. 1 The Pennsylvania Constitution of 1790
and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. 2
Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of
utterance. 3 And it deserves to be noted that in writing to John Adams's wife, Jefferson did not rest his
condemnation of the Sedition Act of 1798 on his belief in [341 U.S. 494, 522] unrestrained utterance as
to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving
the right to enforce restrictions on speech to the States. 4 [341 U.S. 494, 523]
The language of the First Amendment is to be read not as barren words found in a dictionary but as
symbols of historic experience illumined by the presuppositions of those who employed them. Not what
words did Madison and Hamilton use, but what was it in their minds which they conveyed? Free speech
is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case
of every other provision of the Constitution that is not crystallized by the nature of its technical
concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its
usefulness nor compels its paralysis as a living instrument. [341 U.S. 494, 524]
"The law is perfectly well settled," this Court said over fifty years ago, "that the first ten
amendments to the Constitution, commonly known as the Bill of Rights, were not intended to
lay down any novel principles of government, but simply to embody certain guaranties and
immunities which we had inherited from our English ancestors, and which had from time
immemorial been subject to certain well-recognized exceptions arising from the necessities of
44
the case. In incorporating these principles into the fundamental law there was no intention of
disregarding the exceptions, which continued to be recognized as if they had been formally
expressed." Robertson v. Baldwin, 165 U.S. 275, 281 . That this represents the authentic view of
the Bill of Rights and the spirit in which it must be construed has been recognized again and
again in cases that have come here within the last fifty years. See, e. g., Gompers v. United
States, 233 U.S. 604, 610 . Absolute rules would inevitably lead to absolute exceptions, and such
exceptions would eventually corrode the rules. 5 The demands of free speech in a democratic
society as well as the interest [341 U.S. 494, 525] in national security are better served by
candid and informed weighing of the competing interests, within the confines of the judicial
process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved.
But how are competing interests to be assessed? Since they are not subject to quantitative
ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment? - who is
to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full
responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They
are not designed to be a good reflex of a democratic society. Their judgment is best informed, and
therefore most dependable, within narrow limits. Their essential quality is detachment, founded on
independence. History teaches that the independence of the judiciary is jeopardized when courts
become embroiled in the passions of the day and assume primary responsibility in choosing between
competing political, economic and social pressures.
Primary responsibility for adjusting the interests which compete in the situation before us of necessity
belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in
decisions not charged with the emotional appeal of situations such as that now before us. We are to set
aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it.
Sinking-Fund Cases, 99 U.S. 700, 718 ; Mugler v. Kansas, 123 U.S. 623, 660 -661; United States v.
Carolene Products Co., 304 U.S. 144 . We are to determine whether a statute is sufficiently definite to
meet the constitutional requirements of due process, and whether it respects the safeguards against
undue concentration of authority secured by separation of power. United States v. Cohen Grocery Co.,
255 U.S. 81 . [341 U.S. 494, 526] We must assure fairness of procedure, allowing full scope to
governmental discretion but mindful of its impact on individuals in the context of the problem involved.
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 . And, of course, the proceedings in a
particular case before us must have the warrant of substantial proof. Beyond these powers we must not
go; we must scrupulously observe the narrow limits of judicial authority even though self-restraint is
alone set over us. Above all we must remember that this Court's power of judicial review is not "an
exercise of the powers of a super-legislature." Mr. Justice Brandeis and Mr. Justice Holmes, dissenting in
Burns Baking Co. v. Bryan, 264 U.S. 504, 534 .
A generation ago this distribution of responsibility would not have been questioned. See Fox v.
Washington, 236 U.S. 273 ; Meyer v. Nebraska, 262 U.S. 390 ; Bartels v. Iowa, 262 U.S. 404 ; cf. New York
ex rel. Bryant v. Zimmerman, 278 U.S. 63 . But in recent decisions we have made explicit what has long
been implicitly recognized. In reviewing statutes which restrict freedoms protected by the First
Amendment, we have emphasized the close relation which those freedoms bear to maintenance of a
free society. See Kovacs v. Cooper, 336 U.S. 77, 89 , 95 (concurring). Some members of the Court - and
at times a majority - have done more. They have suggested that our function in reviewing statutes
restricting freedom of expression differs sharply from our normal duty in sitting in judgment on
legislation. It has been said that such statutes "must be justified by clear public interest, threatened not
doubtfully or remotely, but by clear and present danger. The rational connection between the remedy
provided and the evil to be curbed, which in other contexts might support legislation against attack on
45
due process grounds, will not suffice." Thomas v. Collins, 323 U.S. 516, 530 . It has been suggested, with
the casualness of a footnote, that such legislation is not [341 U.S. 494, 527] presumptively valid, see
United States v. Carolene Products Co., 304 U.S. 144, 152 , n. 4, and it has been weightily reiterated that
freedom of speech has a "preferred position" among constitutional safeguards. Kovacs v. Cooper, 336
U.S. 77, 88 .
The precise meaning intended to be conveyed by these phrases need not now be pursued. It is enough
to note that they have recurred in the Court's opinions, and their cumulative force has, not without
justification, engendered belief that there is a constitutional principle, expressed by those attractive but
imprecise words, prohibiting restriction upon utterance unless it creates a situation of "imminent" peril
against which legislation may guard. 6 It is on this body of the Court's pronouncements that the
defendants' argument here is based.
In all fairness, the argument cannot be met by reinterpreting the Court's frequent use of "clear" and
"present" to mean an entertainable "probability." In giving this meaning to the phrase "clear and
present danger," the Court of Appeals was fastidiously confining the rhetoric of opinions to the exact
scope of what was decided by them. We have greater responsibility for having given constitutional
support, over repeated protests, to uncritical libertarian generalities. [341 U.S. 494, 528]
Nor is the argument of the defendants adequately met by citing isolated cases. Adjustment of clash of
interests which are at once subtle and fundamental is not likely to reveal entire consistency in a series of
instances presenting the clash. It is not too difficult to find what one seeks in the language of decisions
reporting the effort to reconcile free speech with the interests with which it conflicts. The case for the
defendants requires that their conviction be tested against the entire body of our relevant decisions.
Since the significance of every expression of thought derives from the circumstances evoking it, results
reached rather than language employed give the vital meaning. See Cohens v. Virginia, 6 Wheat. 264,
442; Wambaugh, The Study of Cases, 10.
There is an added reason why we must turn to the decisions. "Great cases," it is appropriate to
remember, "like hard cases make bad law. For great cases are called great, not by reason of their real
importance in shaping the law of the future, but because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a
kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which
even well settled principles of law will bend." Mr. Justice Holmes, dissenting in Northern Securities Co. v.
United States, 193 U.S. 197, 400 -401.
This is such a case. Unless we are to compromise judicial impartiality and subject these defendants to
the risk of an ad hoc judgment influenced by the impregnating atmosphere of the times, the
constitutionality of their conviction must be determined by principles established in cases decided in
more tranquil periods. If those decisions are to be used as a guide and not as an argument, it is
important to view them as a whole and to distrust the easy generalizations to which some of them lend
themselves. [341 U.S. 494, 529]
II.
We have recognized and resolved conflicts between speech and competing interests in six different
types of cases. 7
46
1. The cases involving a conflict between the interest in allowing free expression of ideas in public places
and the interest in protection of the public peace and the primary uses of streets and parks, were too
recently considered to be rehearsed here. Niemotko v. Maryland, 340 U.S. 268, 273 . It suffices to recall
that the result in each case was found to turn on the character of the interest with which the speech
clashed, the method used to impose the restriction, and the nature and circumstances of the utterance
prohibited. While the decisions recognized the importance of free speech and carefully scrutinized the
justification for its regulation, they rejected the notion that vindication of the deep public interest in
freedom of expression requires subordination of all conflicting values.
2. A critique of the cases testing restrictions on picketing is made more difficult by the inadequate
recognition by the Court from the outset that the loyalties and responses evoked and exacted by picket
lines differentiate this form of expression from other modes of communication. See Thornhill v.
Alabama, 310 U.S. 88 . But the [341 U.S. 494, 530] crux of the decision in the Thornhill case was that a
State could not constitutionally punish peaceful picketing when neither the aim of the picketing nor the
manner in which it was carried out conflicted with a substantial interest. In subsequent decisions we
sustained restrictions designed to prevent recurrence of violence, Milk Wagon Drivers Union v.
Meadowmoor Dairies, 312 U.S. 287 , or reasonably to limit the area of industrial strife, Carpenters &
Joiners Union v. Ritter's Cafe, 315 U.S. 722 ; cf. Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 . We
held that a State's policy against restraints of trade justified it in prohibiting picketing which violated
that policy, Giboney v. Empire Storage Co., 336 U.S. 490 ; we sustained restrictions designed to
encourage self-employed persons, International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470
; and to prevent racial discrimination, Hughes v. Superior Court, 339 U.S. 460 . The Fourteenth
Amendment bars a State from prohibiting picketing when there is no fair justification for the breadth of
the restriction imposed. American Federation of Labor v. Swing, 312 U.S. 321 ; Cafeteria Employees
Union v. Angelos, 320 U.S. 293 . But it does not prevent a State from denying the means of
communication that picketing affords in a fair balance between the interests of trade unionism and
other interests of the community.
3. In three cases we have considered the scope and application of the power of the Government to
exclude, deport, or denaturalize aliens because of their advocacy or their beliefs. In United States ex rel.
Turner v. Williams, 194 U.S. 279 , we held that the First Amendment did not disable Congress from
directing the exclusion of an alien found in an administrative proceeding to be an anarchist. "[A]s long as
human governments endure," we said, "they cannot be denied the power of self-preservation, as that
question is presented here." [341 U.S. 494, 531] 194 U.S. at 294. In Schneiderman v. United States, 320
U.S. 118 , and Bridges v. Wixon, 326 U.S. 135 , we did not consider the extent of the power of Congress.
In each case, by a closely divided Court, we interpreted a statute authorizing denaturalization or
deportation to impose on the Government the strictest standards of proof.
4. History regards "freedom of the press" as indispensable for a free society and for its government. We
have, therefore, invalidated discriminatory taxation against the press and prior restraints on publication
of defamatory matter. Grosjean v. American Press Co., 297 U.S. 233 ; Near v. Minnesota, 283 U.S. 697 .
We have also given clear indication of the importance we attach to dissemination of ideas in reviewing
the attempts of States to reconcile freedom of the press with protection of the integrity of the judicial
process. In Pennekamp v. Florida, 328 U.S. 331 , the Court agreed that the Fourteenth Amendment
barred a State from adjudging in contempt of court the publisher of critical and inaccurate comment
about portions of a litigation that for all practical purposes were no longer pending. We likewise agreed,
in a minor phase of our decision in Bridges v. California, 314 U.S. 252 , that even when statements in the
47
press relate to matters still pending before a court, convictions for their publication cannot be sustained
if their utterance is too trivial to be deemed a substantial threat to the impartial administration of
justice.
The Court has, however, sharply divided on what constitutes a sufficient interference with the course of
justice. In the first decision, Patterson v. Colorado, 205 U.S. 454 , the Court affirmed a judgment for
contempt imposed by a State supreme court for publication of articles reflecting on the conduct of the
court in cases still before it on [341 U.S. 494, 532] motions for rehearing. In the Bridges case, however,
a majority held that a State court could not protect itself from the implied threat of a powerful
newspaper that failure of an elected judge to impose a severe sentence would be a "serious mistake."
The same case also placed beyond a State's power to punish the publication of a telegram from the
president of an important union who threatened a damaging strike in the event of an adverse decision.
The majority in Craig v. Harney, 331 U.S. 367, 376 , held that the Fourteenth Amendment protected
"strong," "intemperate," "unfair" criticism of the way an elected lay judge was conducting a pending civil
case. None of the cases establishes that the public interest in a free press must in all instances prevail
over the public interest in dispassionate adjudication. But the Bridges and Craig decisions, if they
survive, tend to require a showing that interference be so imminent and so demonstrable that the
power theoretically possessed by the State is largely paralyzed.
5. Our decision in American Communications Assn. v. Douds, 339 U.S. 382 , recognized that the exercise
of political rights protected by the First Amendment was necessarily discouraged by the requirement of
the Taft-Hartley Act that officers of unions employing the services of the National Labor Relations Board
sign affidavits that they are not Communists. But we held that the statute was not for this reason
presumptively invalid. The problem, we said, was "one of weighing the probable effects of the statute
upon the free exercise of the right of speech and assembly against the congressional determination that
political strikes are evils of conduct which cause substantial harm to interstate commerce and that
Communists and others identified by 9 (h) pose continuing threats to that public interest when in
positions of union leadership." [341 U.S. 494, 533] 339 U.S. at 400. On balance, we decided that the
legislative judgment was a permissible one. 8
6. Statutes prohibiting speech because of its tendency to lead to crime present a conflict of interests
which bears directly on the problem now before us. The first case in which we considered this conflict
was Fox v. Washington, supra. The statute there challenged had been interpreted to prohibit publication
of matter "encouraging an actual breach of law." We held that the Fourteenth Amendment did not
prohibit application of the statute to an article which we concluded incited a breach of laws against
indecent exposure. We said that the statute "lays hold of encouragements that, apart from statute, if
directed to a particular person's conduct, generally would make him who uttered them guilty of a
misdemeanor if not an accomplice or a principal in the crime encouraged, and deals with the publication
of them to a wider and less selected audience." 236 U.S. at 277-278. To be sure, the Fox case preceded
the explicit absorption of the substance of the First Amendment in the Fourteenth. But subsequent
decisions extended the Fox principle to free-speech situations. They are so important to the problem
before us that we must consider them in detail.
(a) The first important application of the principle was made in six cases arising under the Espionage Act
of 1917. That Act prohibits conspiracies and attempts [341 U.S. 494, 534] to "obstruct the recruiting or
enlistment service." In each of the first three cases, Mr. Justice Holmes wrote for a unanimous Court,
affirming the convictions. The evidence in Schenck v. United States, 249 U.S. 47 , showed that the
defendant had conspired to circulate among men called for the draft 15,000 copies of a circular which
48
asserted a "right" to oppose the draft. The defendant in Frohwerk v. United States, 249 U.S. 204 , was
shown to have conspired to publish in a newspaper twelve articles describing the sufferings of American
troops and the futility of our war aims. The record was inadequate, and we said that it was therefore
"impossible to say that it might not have been found that the circulation of the paper was in quarters
where a little breath would be enough to kindle a flame and that the fact was known and relied upon by
those who sent the paper out." 249 U.S. at 209. In Debs v. United States, 249 U.S. 211 , the indictment
charged that the defendant had delivered a public speech expounding socialism and praising Socialists
who had been convicted of abetting violation of the draft laws.
The ground of decision in each case was the same. The First Amendment "cannot have been, and
obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin,
165 U.S. 275, 281 ." Frohwerk v. United States, supra, at 206. "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." Schenck v. United States, supra, at 52. When "the words used had as
their natural tendency and reasonably probable effect to obstruct the recruiting service," and "the
defendant had the specific intent to do so in his mind," conviction in wartime is not prohibited by the
Constitution. Debs v. United States, supra, at 216. [341 U.S. 494, 535]
In the three succeeding cases Holmes and Brandeis, JJ., dissented from judgments of the Court affirming
convictions. The indictment in Abrams v. United States, 250 U.S. 616 , was laid under an amendment to
the Espionage Act which prohibited conspiracies to advocate curtailment of production of material
necessary to prosecution of the war, with the intent thereby to hinder the United States in the
prosecution of the war. It appeared that the defendants were anarchists who had printed circulars and
distributed them in New York City. The leaflets repeated standard Marxist slogans, condemned
American intervention in Russia, and called for a general strike in protest. In Schaefer v. United States,
251 U.S. 466 , the editors of a German-language newspaper in Philadelphia were charged with
obstructing the recruiting service and with wilfully publishing false reports with the intent to promote
the success of the enemies of the United States. The evidence showed publication of articles which
accused American troops of weakness and mendacity and in one instance misquoted or mistranslated
two words of a Senator's speech. The indictment in Pierce v. United States, 252 U.S. 239 , charged that
the defendants had attempted to cause insubordination in the armed forces and had conveyed false
reports with intent to interfere with military operations. Conviction was based on circulation of a
pamphlet which belittled Allied war aims and criticized conscription in strong terms.
In each case both the majority and the dissenting opinions relied on Schenck v. United States. The Court
divided on its view of the evidence. The majority held that the jury could infer the required intent and
the probable effect of the articles from their content. Holmes and Brandeis, JJ., thought that only
"expressions of opinion and exhortations," 250 U.S. at 631, were involved, that they were "puny
anonymities," 250 U.S. at 629, "impotent to produce the evil against which the statute aimed," [341 U.S.
494, 536] 251 U.S. 493 , and that from them the specific intent required by the statute could not
reasonably be inferred. The Court agreed that an incitement to disobey the draft statute could
constitutionally be punished. It disagreed over the proof required to show such an incitement.
(b) In the eyes of a majority of the Court, Gitlow v. New York, 268 U.S. 652 , presented a very different
problem. There the defendant had been convicted under a New York statute nearly identical with the
Smith Act now before us. The evidence showed that the defendant was an official of the Left Wing
Section of the Socialist Party, and that he was responsible for publication of a Left Wing Manifesto. This
49
document repudiated "moderate Socialism," and urged the necessity of a militant "revolutionary
Socialism," based on class struggle and revolutionary mass action. No evidence of the effect of the
Manifesto was introduced; but the jury were instructed that they could not convict unless they found
that the document advocated employing unlawful acts for the purpose of overthrowing organized
government.
The conviction was affirmed. The question, the Court held, was entirely different from that involved in
Schenck v. United States, where the statute prohibited acts without reference to language. Here, where
"the legislative body has determined generally, in the constitutional exercise of its discretion, that
utterances of a certain kind involve such danger of substantive evil that they may be punished, the
question whether any specific utterance coming within the prohibited class is likely, in and of itself, to
bring about the substantive evil, is not open to consideration." 268 U.S. at 670. It is sufficient that the
defendant's conduct falls within the statute, and that the statute is a reasonable exercise of legislative
judgment.
This principle was also applied in Whitney v. California, 274 U.S. 357 , to sustain a conviction under a
State criminal syndicalism statute. That statute made it a [341 U.S. 494, 537] felony to assist in
organizing a group assembled to advocate the commission of crime, sabotage, or unlawful acts of
violence as a means of effecting political or industrial change. The defendant was found to have assisted
in organizing the Communist Labor Party of California, an organization found to have the specified
character. It was held that the legislature was not unreasonable in believing organization of such a party
"involves such danger to the public peace and the security of the State, that these acts should be
penalized in the exercise of its police power." 274 U.S. at 371.
In neither of these cases did Mr. Justice Holmes and Mr. Justice Brandeis accept the reasoning of the
Court. "`The question,'" they said, quoting from Schenck v. United States, "`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 [the State] has a right to prevent.'" 268 U.S.
at 672-673. Since the Manifesto circulated by Gitlow "had no chance of starting a present
conflagration," 268 U.S. at 673, they dissented from the affirmance of his conviction. In Whitney v.
California, they concurred in the result reached by the Court, but only because the record contained
some evidence that organization of the Communist Labor Party might further a conspiracy to commit
immediate serious crimes, and the credibility of the evidence was not put in issue by the defendant. 9
(c) Subsequent decisions have added little to the principles established in these two groups of cases. In
the only case arising under the Espionage Act decided by this Court during the last war, the
substantiality of the evidence was the crucial issue. The defendant in Hartzel [341 U.S. 494, 538] v.
United States, 322 U.S. 680 , was an educated man and a citizen, not actively affiliated with any political
group. In 1942 he wrote three articles condemning our wartime allies and urging that the war be
converted into a racial conflict. He mailed the tracts to 600 people, including high-ranking military
officers. According to his testimony his intention was to "create sentiment against war amongst the
white races." The majority of this Court held that a jury could not reasonably infer from these facts that
the defendant had acted with a specific intent to cause insubordination or disloyalty in the armed
forces.
Of greater importance is the fact that the issue of law which divided the Court in the Gitlow and
Whitney cases has not again been clearly raised, although in four additional instances we have reviewed
convictions under comparable statutes. Fiske v. Kansas, 274 U.S. 380 , involved a criminal syndicalism
50
statute similar to that before us in Whitney v. California. We reversed a conviction based on evidence
that the defendant exhibited an innocuous preamble to the constitution of the Industrial Workers of the
World in soliciting members for that organization. In Herndon v. Lowry, 301 U.S. 242 , the defendant had
solicited members for the Communist Party, but there was no proof that he had urged or even approved
those of the Party's aims which were unlawful. We reversed a conviction obtained under a statute
prohibiting an attempt to incite to insurrection by violence, on the ground that the Fourteenth
Amendment prohibited conviction where on the evidence a jury could not reasonably infer that the
defendant had violated the statute the State sought to apply. 10 [341 U.S. 494, 539]
The other two decisions go no further than to hold that the statute as construed by the State courts
exceeded the bounds of a legislative judgment founded in reason. The statute presented in De Jonge v.
Oregon, 299 U.S. 353 , had been construed to apply to anyone who merely assisted in the conduct of a
meeting held under the auspices of the Communist Party. In Taylor v. Mississippi, 319 U.S. 583 , the
statute prohibited dissemination of printed matter "designed and calculated to encourage violence,
sabotage, or disloyalty to the government of the United States, or the state of Mississippi." We reversed
a conviction for what we concluded was mere criticism and prophesy, without indicating whether we
thought the statute could in any circumstances validly be applied. What the defendants communicated,
we said, "is not claimed or shown to have been done with an evil or sinister purpose, to have advocated
or incited subversive action against the nation or state, or to have threatened any clear and present
danger to our institutions or our Government." 319 U.S. at 589-590.
I must leave to others the ungrateful task of trying to reconcile all these decisions. In some instances we
have too readily permitted juries to infer deception from error, or intention from argumentative or
critical statements. Abrams v. United States, supra; Schaefer v. United States, supra; Pierce v. United
States, supra; Gilbert v. Minnesota, 254 U.S. 325 . In other instances we weighted the interest in free
speech so heavily that we permitted essential conflicting values to be destroyed. Bridges v. California,
supra; Craig v. Harney, supra. Viewed as a whole, however, the decisions express an attitude toward the
judicial function and a standard of values which for me are decisive of the case before us.
First. - Free-speech cases are not an exception to the principle that we are not legislators, that direct
policymaking is not our province. How best to reconcile competing [341 U.S. 494, 540] interests is the
business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be
respected unless outside the pale of fair judgment.
On occasion we have strained to interpret legislation in order to limit its effect on interests protected by
the First Amendment. Schneiderman v. United States, supra; Bridges v. Wixon, supra. In some instances
we have denied to States the deference to which I think they are entitled. Bridges v. California, supra;
Craig v. Harney, supra. Once in this recent course of decisions the Court refused to permit a jury to draw
inferences which seemed to me to be obviously reasonable. Hartzel v. United States, supra.
But in no case has a majority of this Court held that a legislative judgment, even as to freedom of
utterance, may be overturned merely because the Court would have made a different choice between
the competing interests had the initial legislative judgment been for it to make. In the cases in which the
opinions go farthest towards indicating a total rejection of respect for legislative determinations, the
interests between which choice was actually made were such that decision might well have been
expressed in the familiar terms of want of reason in the legislative judgment. In Thomas v. Collins, 323
U.S. 516 , for example, decision could not unreasonably have been placed on the ground that no
substantial interest justified a State in requiring an out-of-State labor leader to register before speaking
51
in advocacy of the cause of trade unionism. In Martin v. City of Struthers, 319 U.S. 141 , it was broadly
held that a municipality was not justified in prohibiting knocking on doors and ringing doorbells for the
purpose of delivering handbills. But since the good faith and reasonableness of the regulation were
placed in doubt by the fact that the city did not think it necessary also to prohibit door-to-door
commercial [341 U.S. 494, 541] sales, decision could be sustained on narrower ground. And compare
Breard v. Alexandria, post, p. 622, decided this day.
In other cases, moreover, we have given clear indication that even when free speech is involved we
attach great significance to the determination of the legislature. Gitlow v. New York, supra; Whitney v.
California, supra; American Communications Assn. v. Douds, supra; cf. Bridges v. California, 314 U.S. at
260. And see Hughes v. Superior Court, supra; International Brotherhood of Teamsters Union v. Hanke,
supra.
In Gitlow v. New York, we put our respect for the legislative judgment in terms which, if they were
accepted here, would make decision easy. For that case held that, when the legislature has determined
that advocacy of forceful overthrow should be forbidden, a conviction may be sustained without a
finding that in the particular case the advocacy had a close relation to a serious attempt at overthrow.
We held that it was enough that the statute be a reasonable exercise of the legislative judgment, and
that the defendant's conduct fall within the statute.
One of the judges below rested his affirmance on the Gitlow decision, and the defendants do not
attempt to distinguish the case. They place their argument squarely on the ground that the case has
been overruled by subsequent decisions. It has not been explicitly overruled. But it would be
disingenuous to deny that the dissent in Gitlow has been treated with the respect usually accorded to a
decision.
The result of the Gitlow decision was to send a leftwing Socialist to jail for publishing a Manifesto
expressing Marxist exhortations. It requires excessive tolerance of the legislative judgment to suppose
that the Gitlow publication in the circumstances could justify serious concern. [341 U.S. 494, 542]
In contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a
substantial threat to national order and security. If the Smith Act is justified at all, it is justified precisely
because it may serve to prohibit the type of conspiracy for which these defendants were convicted. The
court below properly held that as a matter of separability the Smith Act may be limited to those
situations to which it can constitutionally be applied. See 183 F.2d at 214-215. Our decision today
certainly does not mean that the Smith Act can constitutionally be applied to facts like those in Gitlow v.
New York. While reliance may properly be placed on the attitude of judicial self-restraint which the
Gitlow decision reflects, it is not necessary to depend on the facts or the full extent of the theory of that
case in order to find that the judgment of Congress, as applied to the facts of the case now before us, is
not in conflict with the First Amendment.
Second. - A survey of the relevant decisions indicates that the results which we have reached are on the
whole those that would ensue from careful weighing of conflicting interests. The complex issues
presented by regulation of speech in public places, by picketing, and by legislation prohibiting advocacy
of crime have been resolved by scrutiny of many factors besides the imminence and gravity of the evil
threatened. The matter has been well summarized by a reflective student of the Court's work. "The
truth is that the clear-and-present-danger test is an oversimplified judgment unless it takes account also
of a number of other factors: the relative seriousness of the danger in comparison with the value of the
52
occasion for speech or political activity; the availability of more moderate controls than those which the
state has imposed; and perhaps the specific intent with which the speech or activity is launched. No
matter how rapidly we utter the phrase `clear and present danger,' or how [341 U.S. 494, 543] closely
we hyphenate the words, they are not a substitute for the weighing of values. They tend to convey a
delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms
which the judge must disentangle." Freund, On Understanding the Supreme Court, 27-28.
It is a familiar experience in the law that new situations do not fit neatly into legal conceptions that
arose under different circumstances to satisfy different needs. So it was when the injunction was
tortured into an instrument of oppression against labor in industrial conflicts. So it is with the attempt to
use the direction of thought lying behind the criterion of "clear and present danger" wholly out of the
context in which it originated, and to make of it an absolute dogma and definitive measuring rod for the
power of Congress to deal with assaults against security through devices other than overt physical
attempts.
Bearing in mind that Mr. Justice Holmes regarded questions under the First Amendment as questions of
"proximity and degree," Schenck v. United States, 249 U.S. at 52, it would be a distortion, indeed a
mockery, of his reasoning to compare the "puny anonymities," 250 U.S. at 629, to which he was
addressing himself in the Abrams case in 1919 or the publication that was "futile and too remote from
possible consequences," 268 U.S. at 673, in the Gitlow case in 1925 with the setting of events in this
case in 1950.
"It does an ill-service to the author of the most quoted judicial phrases regarding freedom of
speech, to make him the victim of a tendency which he fought all his life, whereby phrases are
made to do service for critical analysis by being turned into dogma. `It is one of the misfortunes
of the law that ideas become encysted in phrases and thereafter for a long time cease to
provoke further analysis.' Holmes, J., dissenting, in Hyde v. United [341 U.S. 494, 544] States,
225 U.S. 347, 384 , at 391." The phrase "clear and present danger," in its origin, "served to
indicate the importance of freedom of speech to a free society but also to emphasize that its
exercise must be compatible with the preservation of other freedoms essential to a democracy
and guaranteed by our Constitution." Pennekamp v. Florida, 328 U.S. 331, 350 , 352-353
(concurring). It were far better that the phrase be abandoned than that it be sounded once
more to hide from the believers in an absolute right of free speech the plain fact that the
interest in speech, profoundly important as it is, is no more conclusive in judicial review than
other attributes of democracy or than a determination of the people's representatives that a
measure is necessary to assure the safety of government itself.
Third. - Not every type of speech occupies the same position on the scale of values. There is no
substantial public interest in permitting certain kinds of utterances: "the lewd and obscene, the profane,
the libelous, and the insulting or `fighting' words - those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 . We
have frequently indicated that the interest in protecting speech depends on the circumstances of the
occasion. See cases collected in Niemotko v. Maryland, 340 U.S. at 275-283. It is pertinent to the
decision before us to consider where on the scale of values we have in the past placed the type of
speech now claiming constitutional immunity.
The defendants have been convicted of conspiring to organize a party of persons who advocate the
overthrow of the Government by force and violence. The jury has found that the object of the
conspiracy is advocacy as "a rule or principle of action," "by language reasonably and ordinarily
53
calculated to incite persons to such action," [341 U.S. 494, 545] and with the intent to cause the
overthrow "as speedily as circumstances would permit."
On any scale of values which we have hitherto recognized, speech of this sort ranks low.
Throughout our decisions there has recurred a distinction between the statement of an idea which may
prompt its hearers to take unlawful action, and advocacy that such action be taken. The distinction has
its root in the conception of the common law, supported by principles of morality, that a person who
procures another to do an act is responsible for that act as though he had done it himself. This principle
was extended in Fox v. Washington, supra, to words directed to the public generally which would
constitute an incitement were they directed to an individual. It was adapted in Schenck v. United States,
supra, into a rule of evidence designed to restrict application of the Espionage Act. It was relied on by
the Court in Gitlow v. New York, supra. The distinction has been repeated in many of the decisions in
which we have upheld the claims of speech. We frequently have distinguished protected forms of
expression from statements which "incite to violence and crime and threaten the overthrow of
organized government by unlawful means." Stromberg v. California, 283 U.S. at 369. See also Near v.
Minnesota, 283 U.S. at 716; De Jonge v. Oregon, 299 U.S. at 365; Cantwell v. Connecticut, 310 U.S. 296,
308 ; Taylor v. Mississippi, 319 U.S. at 589.
It is true that there is no divining rod by which we may locate "advocacy." Exposition of ideas readily
merges into advocacy. The same Justice who gave currency to application of the incitement doctrine in
this field dissented four times from what he thought was its misapplication. As he said in the Gitlow
dissent, "Every idea is an incitement." 268 U.S. at 673. Even though advocacy of overthrow deserves
little protection, we should hesitate to prohibit it if we thereby inhibit the [341 U.S. 494, 546]
interchange of rational ideas so essential to representative government and free society.
But there is underlying validity in the distinction between advocacy and the interchange of ideas, and we
do not discard a useful tool because it may be misused. That such a distinction could be used
unreasonably by those in power against hostile or unorthodox views does not negate the fact that it
may be used reasonably against an organization wielding the power of the centrally controlled
international Communist movement. The object of the conspiracy before us is so clear that the chance
of error in saying that the defendants conspired to advocate rather than to express ideas is slight. MR.
JUSTICE DOUGLAS quite properly points out that the conspiracy before us is not a conspiracy to
overthrow the Government. But it would be equally wrong to treat it as a seminar in political theory.
III.
These general considerations underlie decision of the case before us.
On the one hand is the interest in security. The Communist Party was not designed by these defendants
as an ordinary political party. For the circumstances of its organization, its aims and methods, and the
relation of the defendants to its organization and aims we are concluded by the jury's verdict. The jury
found that the Party rejects the basic premise of our political system - that change is to be brought
about by nonviolent constitutional process. The jury found that the Party advocates the theory that
there is a duty and necessity to overthrow the Government by force and violence. It found that the Party
entertains and promotes this view, not as a prophetic insight or as a bit of unworldly speculation, [341
U.S. 494, 547] but as a program for winning adherents and as a policy to be translated into action.
54
In finding that the defendants violated the statute, we may not treat as established fact that the
Communist Party in this country is of significant size, well-organized, well-disciplined, conditioned to
embark on unlawful activity when given the command. But in determining whether application of the
statute to the defendants is within the constitutional powers of Congress, we are not limited to the facts
found by the jury. We must view such a question in the light of whatever is relevant to a legislative
judgment. We may take judicial notice that the Communist doctrines which these defendants have
conspired to advocate are in the ascendency in powerful nations who cannot be acquitted of
unfriendliness to the institutions of this country. We may take account of evidence brought forward at
this trial and elsewhere, much of which has long been common knowledge. In sum, it would amply
justify a legislature in concluding that recruitment of additional members for the Party would create a
substantial danger to national security.
In 1947, it has been reliably reported, at least 60,000 members were enrolled in the Party. 11 Evidence
was introduced in this case that the membership was organized in small units, linked by an intricate
chain of command, and protected by elaborate precautions designed to prevent disclosure of individual
identity. There are no reliable data tracing acts of sabotage or espionage directly to these defendants.
But a Canadian Royal Commission appointed in 1946 to investigate espionage reported that it was
"overwhelmingly established" that [341 U.S. 494, 548] "the Communist movement was the principal
base within which the espionage network was recruited." 12 The most notorious spy in recent history
was led into the service of the Soviet Union through Communist indoctrination. 13 Evidence supports
the conclusion that members of the Party seek and occupy positions of importance in political and labor
organizations. 14 Congress was not barred by the Constitution from believing that indifference to such
experience would be an exercise not of freedom but of irresponsibility.
On the other hand is the interest in free speech. The right to exert all governmental powers in aid of
maintaining our institutions and resisting their physical overthrow does not include intolerance of
opinions and speech that cannot do harm although opposed and perhaps alien to dominant, traditional
opinion. The treatment of its [341 U.S. 494, 549] minorities, especially their legal position, is among the
most searching tests of the level of civilization attained by a society. It is better for those who have
almost unlimited power of government in their hands to err on the side of freedom. We have enjoyed so
much freedom for so long that we are perhaps in danger of forgetting how much blood it cost to
establish the Bill of Rights.
Of course no government can recognize a "right" of revolution, or a "right" to incite revolution if the
incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its
effects may be manifold. A public interest is not wanting in granting freedom to speak their minds even
to those who advocate the overthrow of the Government by force. For, as the evidence in this case
abundantly illustrates, coupled with such advocacy is criticism of defects in our society. Criticism is the
spur to reform; and Burke's admonition that a healthy society must reform in order to conserve has not
lost its force. Astute observers have remarked that one of the characteristics of the American Republic is
indifference to fundamental criticism. Bryce, The American Commonwealth, c. 84. It is a commonplace
that there may be a grain of truth in the most uncouth doctrine, however false and repellent the
balance may be. Suppressing advocates of overthrow inevitably will also silence critics who do not
advocate overthrow but fear that their criticism may be so construed. No matter how clear we may be
that the defendants now before us are preparing to overthrow our Government at the propitious
moment, it is self-delusion to think that we can punish them for their advocacy without adding to the
risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a
55
sobering fact that in sustaining the convictions before us we can hardly escape restriction on the
interchange of ideas. [341 U.S. 494, 550]
We must not overlook the value of that interchange. Freedom of expression is the well-spring of our
civilization - the civilization we seek to maintain and further by recognizing the right of Congress to put
some limitation upon expression. Such are the paradoxes of life. For social development of trial and
error, the fullest possible opportunity for the free play of the human mind is an indispensable
prerequisite. The history of civilization is in considerable measure the displacement of error which once
held sway as official truth by beliefs which in turn have yielded to other truths. Therefore the liberty of
man to search for truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty
of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere
hostile to the endeavor or under dangers which are hazarded only by heroes.
"The interest, which [the First Amendment] guards, and which gives it its importance,
presupposes that there are no orthodoxies - religious, political, economic, or scientific - which
are immune from debate and dispute. Back of that is the assumption - itself an orthodoxy, and
the one permissible exception - that truth will be most likely to emerge, if no limitations are
imposed upon utterances that can with any plausibility be regarded as efforts to present
grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies."
International Brotherhood of Electrical Workers v. Labor Board, 181 F.2d 34, 40. In the last
analysis it is on the validity of this faith that our national security is staked.
It is not for us to decide how we would adjust the clash of interests which this case presents were the
primary responsibility for reconciling it ours. Congress has determined that the danger created by
advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was
made after due deliberation, and [341 U.S. 494, 551] the seriousness of the congressional purpose is
attested by the volume of legislation passed to effectuate the same ends. 15
Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we
establish a constitutional doctrine which forbids the elected representatives of the people to make this
choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the
Government's protection?
To make validity of legislation depend on judicial reading of events still in the womb of time - a forecast,
that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of
nations - is to charge the judiciary with duties beyond its equipment. We do not expect courts to
pronounce historic verdicts on bygone events. Even historians have conflicting views to this day on the
origins and conduct of the French Revolution, or, for that matter, varying interpretations of "the glorious
Revolution" of 1688. It is as absurd to be confident that we can measure the present clash of forces and
[341 U.S. 494, 552] their outcome as to ask us to read history still enveloped in clouds of controversy.
In the light of their experience, the Framers of the Constitution chose to keep the judiciary dissociated
from direct participation in the legislative process. In asserting the power to pass on the constitutionality
of legislation, Marshall and his Court expressed the purposes of the Founders. See Charles A. Beard, The
Supreme Court and the Constitution. But the extent to which the exercise of this power would
interpenetrate matters of policy could hardly have been foreseen by the most prescient. The distinction
which the Founders drew between the Court's duty to pass on the power of Congress and its
complementary duty not to enter directly the domain of policy is fundamental. But in its actual
operation it is rather subtle, certainly to the common understanding. Our duty to abstain from
56
confounding policy with constitutionality demands perceptive humility as well as self-restraint in not
declaring unconstitutional what in a judge's private judgment is deemed unwise and even dangerous.
Even when moving strictly within the limits of constitutional adjudication, judges are concerned with
issues that may be said to involve vital finalities. The too easy transition from disapproval of what is
undesirable to condemnation as unconstitutional, has led some of the wisest judges to question the
wisdom of our scheme in lodging such authority in courts. But it is relevant to remind that in sustaining
the power of Congress in a case like this nothing irrevocable is done. The democratic process at all
events is not impaired or restricted. Power and responsibility remain with the people and immediately
with their representatives. All the Court says is that Congress was not forbidden by the Constitution to
pass this enactment and that a prosecution under it may be brought against a conspiracy such as the
one before us. [341 U.S. 494, 553]
IV.
The wisdom of the assumptions underlying the legislation and prosecution is another matter. In finding
that Congress has acted within its power, a judge does not remotely imply that he favors the
implications that lie beneath the legal issues. Considerations there enter which go beyond the criteria
that are binding upon judges within the narrow confines of their legitimate authority. The legislation we
are here considering is but a truncated aspect of a deeper issue. For me it has been most illuminatingly
expressed by one in whom responsibility and experience have fructified native insight, the DirectorGeneral of the British Broadcasting Corporation:
"We have to face up to the fact that there are powerful forces in the world today misusing the
privileges of liberty in order to destroy her. The question must be asked, however, whether
suppression of information or opinion is the true defense. We may have come a long way from
Mill's famous dictum that:
"`If all mankind minus one were of one opinion, and only one person were of the contrary
opinion, mankind would be no more justified in silencing that one person, than he, if he had the
power, would be justified in silencing mankind,'
but Mill's reminders from history as to what has happened when suppression was most
virulently exercised ought to warn us that no debate is ever permanently won by shutting one's
ears or by even the most Draconian policy of silencing opponents. The debate must be won. And
it must be won with full information. Where there are lies, they must be shown for what they
are. Where there are errors, they must be refuted. It would be a major defeat if the enemies of
democracy forced us to abandon our faith in the power of informed discussion and so brought
us down [341 U.S. 494, 554] to their own level. Mankind is so constituted, moreover, that if,
where expression and discussion are concerned, the enemies of liberty are met with a denial of
liberty, many men of goodwill will come to suspect there is something in the proscribed doctrine
after all. Erroneous doctrines thrive on being expunged. They die if exposed." Sir William Haley,
What Standards for Broadcasting? Measure, Vol. I, No. 3, Summer 1950, pp. 211-212.
In the context of this deeper struggle, another voice has indicated the limitations of what we decide
today. No one is better equipped than George F. Kennan to speak on the meaning of the menace of
Communism and the spirit in which we should meet it.
"If our handling of the problem of Communist influence in our midst is not carefully moderated if we permit it, that is, to become an emotional preoccupation and to blind us to the more
important positive tasks before us - we can do a damage to our national purpose beyond
comparison greater than anything that threatens us today from the Communist side. The
57
American Communist party is today, by and large, an external danger. It represents a tiny
minority in our country; it has no real contact with the feelings of the mass of our people; and its
position as the agency of a hostile foreign power is clearly recognized by the overwhelming mass
of our citizens.
"But the subjective emotional stresses and temptations to which we are exposed in our attempt
to deal with this domestic problem are not an external danger: they represent a danger within
ourselves - a danger that something may occur in our own minds and souls which will make us
no longer like the persons by whose efforts this republic was founded and held together, but
rather like the representatives [341 U.S. 494, 555] of that very power we are trying to combat:
intolerant, secretive, suspicious, cruel, and terrified of internal dissension because we have lost
our own belief in ourselves and in the power of our ideals. The worst thing that our Communists
could do to us, and the thing we have most to fear from their activities, is that we should
become like them.
"That our country is beset with external dangers I readily concede. But these dangers, at their
worst, are ones of physical destruction, of the disruption of our world security, of expense and
inconvenience and sacrifice. These are serious, and sometimes terrible things, but they are all
things that we can take and still remain Americans.
"The internal danger is of a different order. America is not just territory and people. There is lots
of territory elsewhere, and there are lots of people; but it does not add up to America. America
is something in our minds and our habits of outlook which causes us to believe in certain things
and to behave in certain ways, and by which, in its totality, we hold ourselves distinguished from
others. If that once goes there will be no America to defend. And that can go too easily if we
yield to the primitive human instinct to escape from our frustrations into the realms of mass
emotion and hatred and to find scapegoats for our difficulties in individual fellow-citizens who
are, or have at one time been, disoriented or confused." George F. Kennan, Where Do You Stand
on Communism? New York Times Magazine, May 27, 1951, pp. 7, 53, 55.
Civil liberties draw at best only limited strength from legal guaranties. Preoccupation by our people with
the constitutionality, instead of with the wisdom, of legislation or of executive action is preoccupation
with a false value. Even those who would most freely use the judicial [341 U.S. 494, 556] brake on the
democratic process by invalidating legislation that goes deeply against their grain, acknowledge, at least
by paying lip service, that constitutionality does not exact a sense of proportion or the sanity of humor
or an absence of fear. Focusing attention on constitutionality tends to make constitutionality
synonymous with wisdom. When legislation touches freedom of thought and freedom of speech, such a
tendency is a formidable enemy of the free spirit. Much that should be rejected as illiberal, because
repressive and envenoming, may well be not unconstitutional. The ultimate reliance for the deepest
needs of civilization must be found outside their vindication in courts of law; apart from all else, judges,
howsoever they may conscientiously seek to discipline themselves against it, unconsciously are too apt
to be moved by the deep undercurrents of public feeling. A persistent, positive translation of the
liberating faith into the feelings and thoughts and actions of men and women is the real protection
against attempts to strait-jacket the human mind. Such temptations will have their way, if fear and
hatred are not exorcized. The mark of a truly civilized man is confidence in the strength and security
derived from the inquiring mind. We may be grateful for such honest comforts as it supports, but we
must be unafraid of its incertitudes. Without open minds there can be no open society. And if society be
not open the spirit of man is mutilated and becomes enslaved.
APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER.
Opinions responsible for the view that speech could not constitutionally be restricted unless there
would result from it an imminent - i. e., close at hand - substantive evil.
58
1. Thornhill v. Alabama, 310 U.S. 88, 104 -105 (State statute prohibiting picketing held invalid): ". . .
Every [341 U.S. 494, 557] expression of opinion on matters that are important has the potentiality of
inducing action in the interests of one rather than another group in society. But the group in power at
any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public
interest merely on a showing that others may thereby be persuaded to take action inconsistent with its
interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of
substantive evils arises under circumstances affording no opportunity to test the merits of ideas by
competition for acceptance in the market of public opinion. . . .
". . . [N]o clear and present danger of destruction of life or property, or invasion of the right of
privacy, or breach of the peace can be thought to be inherent in the activities of every person
who approaches the premises of an employer and publicizes the facts of a labor dispute
involving the latter."
2. Bridges v. California, 314 U.S. 252, 262 -263 (convictions for contempt of court reversed): ". . . [T]he
`clear and present danger' language of the Schenck case has afforded practical guidance in a great
variety of cases in which the scope of constitutional protections of freedom of expression was in issue. It
has been utilized by either a majority or minority of this Court in passing upon the constitutionality of
convictions under espionage acts, Schenck v. United States, supra [249 U.S. 47]; Abrams v. United
States, 250 U.S. 616 ; under a criminal syndicalism act, Whitney v. California, supra [274 U.S. 357]; under
an `anti-insurrection' act, Herndon v. Lowry, supra [ 301 U.S. 242 ]; and for breach of the peace at
common law, Cantwell v. Connecticut, supra [ 310 U.S. 296 ]. And very recently we have also suggested
that `clear and present danger' is an appropriate guide in determining the constitutionality of
restrictions upon expression where the substantive evil sought to be prevented [341 U.S. 494, 558] by
the restriction is `destruction of life or property, or invasion of the right of privacy.' Thornhill v. Alabama,
310 U.S. 88, 105 .
.....
"What finally emerges from the `clear and present danger' cases is a working principle that the
substantive evil must be extremely serious and the degree of imminence extremely high before
utterances can be punished. Those cases do not purport to mark the furthermost constitutional
boundaries of protected expression, nor do we here. They do no more than recognize a
minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally.
It prohibits any law `abridging the freedom of speech, or of the press.' It must be taken as a
command of the broadest scope that explicit language, read in the context of a liberty-loving
society, will allow."
3. West Virginia Board of Education v. Barnette, 319 U.S. 624, 639 (flag-salute requirement for school
children held invalid): "In weighing arguments of the parties it is important to distinguish between the
due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the
First Amendment and those cases in which it is applied for its own sake. The test of legislation which
collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much
more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due
process clause disappears when the specific prohibitions of the First become its standard. The right of a
State to regulate, for example, a public utility may well include, so far as the due process test is
concerned, power to impose all of the restrictions which a legislature may have a `rational basis' for
adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on
such slender grounds. They are susceptible [341 U.S. 494, 559] of restriction only to prevent grave and
immediate danger to interests which the State may lawfully protect. It is important to note that while it
is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting
principles of the First Amendment that finally govern this case."
59
4. Thomas v. Collins, 323 U.S. 516, 529 -530 (State statute requiring registration of labor organizers held
invalid as applied): "The case confronts us again with the duty our system places on this Court to say
where the individual's freedom ends and the State's power begins. Choice on that border, now as always
delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the
preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the
First Amendment. Cf. Schneider v. State, 308 U.S. 147 ; Cantwell v. Connecticut, 310 U.S. 296 ; Prince v.
Massachusetts, 321 U.S. 158 . That priority gives these liberties a sanctity and a sanction not permitting
dubious intrusions. And it is the character of the right, not of the limitation, which determines what
standard governs the choice. Compare United States v. Carolene Products Co., 304 U.S. 144, 152 -153.
"For these reasons any attempt to restrict those liberties must be justified by clear public
interest, threatened not doubtfully or remotely, but by clear and present danger. The rational
connection between the remedy provided and the evil to be curbed, which in other contexts
might support legislation against attack on due process grounds, will not suffice. These rights
rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and
persuasion, at appropriate time and place, must have clear support in public danger, actual or
impending. Only the gravest abuses, endangering paramount interests, give occasion for
permissible limitation." [341 U.S. 494, 560]
5. Craig v. Harney, 331 U.S. 367, 376 (conviction for contempt of court reversed): "The fires which [the
language] kindles must constitute an imminent, not merely a likely, threat to the administration of
justice. The danger must not be remote or even probable; it must immediately imperil."
6. Giboney v. Empire Storage Co., 336 U.S. 490, 503 (injunction against picketing upheld): ". . . There was
clear danger, imminent and immediate, that unless restrained, appellants would succeed in making [the
State's policy against restraints of trade] a dead letter insofar as purchases by nonunion men were
concerned. . . ."
7. Terminiello v. Chicago, 337 U.S. 1, 4 -5 (conviction for disorderly conduct reversed): "Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not
absolute, Chaplinsky v. New Hampshire, supra, [ 315 U.S. 568 ] 571-572, is nevertheless protected
against censorship or punishment, unless shown likely to produce a clear and present danger of a
serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v.
California, 314 U.S. 252, 262 ; Craig v. Harney, 331 U.S. 367, 373 . There is no room under our
Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either
by legislatures, courts, or dominant political or community groups."
8. American Communications Assn. v. Douds, 339 U.S. 382, 396 , 412 ("Non-Communist affidavit"
provision of Taft-Hartley Act upheld): "Speech may be fought with speech. Falsehoods and fallacies must
be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious
doctrine by argument and education. That is the command of the First Amendment." And again, "[The
First] Amendment requires [341 U.S. 494, 561] that one be permitted to believe what he will. It
requires that one be permitted to advocate what he will unless there is a clear and present danger that
a substantial public evil will result therefrom."
[ Footnote 1 ] Mass. Const., 1780, Part I, Art. XVI. See Duniway, Freedom of the Press in Massachusetts,
144-146.
60
[ Footnote 2 ] Pa. Const., 1790, Art. IX, 7; Del. Const., 1792, Art. I, 5.
[ Footnote 3 ] The General Assembly of Virginia passed a statute on December 26, 1792, directed at
establishment of "any government separate from, or independent of the government of Virginia, within
the limits thereof, unless by act of the legislature of this commonwealth for that [341 U.S. 494, 522]
purpose first obtained." The statute provided that "EVERY person . . . who shall by writing or advised
speaking, endeavour to instigate the people of this commonwealth to erect or establish such
government without such assent as aforesaid, shall be adjudged guilty of a high crime and misdemeanor
. . . ." Va. Code, 1803, c. CXXXVI.
[ Footnote 4 ] In a letter to Abigail Adams, dated September 11, 1804, Jefferson said with reference to
the Sedition Act:
"Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all
restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all
truth and falsehood in the US. The power to do that is fully possessed by the several state
legislatures. It was reserved to them, and was denied to the general government, by the
constitution according to our construction of it. While we deny that Congress have a right to
controul the freedom of the press, we have ever asserted the right of the states, and their
exclusive right, to do so."
The letter will be published in a forthcoming volume of The Papers of Thomas Jefferson (Boyd ed.), to
which I am indebted for its reproduction here in its exact form.
The Sedition Act of July 14, 1798, was directed at two types of conduct. Section 1 made it a criminal
offense to conspire "to impede the operation of any law of the United States," and to "counsel, advise
or attempt to procure any insurrection, riot, unlawful assembly, or combination." Section 2 provided:
"That if any person shall write, print, utter or publish, or shall cause or procure to be written,
printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing,
uttering or publishing any false, scandalous and malicious writing or writings against the
government of the United States, or either house of the Congress of the United States, or the
President of the United States, with intent to defame the said government, or either house of
the said Congress, or the said President, or to bring them, or either of them, into contempt or
disrepute; or to excite against them, or either or any of them, the hatred of the good people of
the United States, or to stir up sedition within the United States, or to excite any unlawful
combinations therein, for opposing or resisting any law of the United [341 U.S. 494, 523]
States, or any act of the President of the United States, done in pursuance of any such law, or of
the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat
any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation
against the United States, their people or government, then such person, being thereof
convicted before any court of the United States having jurisdiction thereof, shall be punished by
a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years." 1
Stat. 596-597.
No substantial objection was raised to 1 of the Act. The argument against the validity of 2 is stated most
fully in the Virginia Report of 1799-1800. That Report, prepared for the House of Delegates by a
committee of which Madison was chairman, attempted to establish that the power to regulate speech
was not delegated to the Federal Government by the Constitution, and that the First Amendment had
prohibited the National Government from exercising the power. In reply it was urged that power to
61
restrict seditious writing was implicit in the acknowledged power of the Federal Government to prohibit
seditious acts, and that the liberty of the press did not extend to the sort of speech restricted by the Act.
See the Report of the Committee of the House of Representatives to which were referred memorials
from the States, H. R. Rep. No. 110, 5th Cong., 3d Sess., published in American State Papers, Misc. Vol. 1,
p. 181. For an extensive contemporary account of the controversy, see St. George Tucker's 1803 edition
of Blackstone's Commentaries, Appendix to Vol. First, Part Second, Note G.
[ Footnote 5 ] Professor Alexander Meiklejohn is a leading exponent of the absolutist interpretation of
the First Amendment. Recognizing that certain forms of speech require regulation, he excludes those
forms of expression entirely from the protection accorded by the Amendment. "The constitutional
status of a merchant advertising his wares, of a paid lobbyist fighting for the advantage of his client, is
utterly different from that of a citizen who is planning for the general welfare." Meiklejohn, Free Speech,
39. "The radio as it now operates among us is not free. Nor is it entitled to the protection of the First
Amendment. It is not engaged in the task of enlarging and enriching human communication. It is
engaged in making money." Id. at 104. Professor Meiklejohn even suggests that scholarship may now
require such subvention and control that it no longer is entitled to protection by the First Amendment.
See id. at 99-100. Professor Chafee in his review of the Meiklejohn book, 62 Harv. L. Rev. 891, has
subjected this position to trenchant comment.
[ Footnote 6 ] In Hartzel v. United States, 322 U.S. 680, 687 , the Court reversed a conviction for wilfully
causing insubordination in the military forces on the ground that the intent required by the statute was
not shown. It added that there was a second element necessary to conviction, "consisting of a clear and
present danger that the activities in question will bring about the substantive evils which Congress has a
right to prevent. Schenck v. United States, 249 U.S. 47 . Both elements must be proved by the
Government beyond a reasonable doubt."
Other passages responsible for attributing to the Court the principle that imminence of the
apprehended evil is necessary to conviction in free-speech cases are collected in an Appendix to this
opinion, post, p. 556.
[ Footnote 7 ] No useful purpose would be served by considering here decisions in which the Court
treated the challenged regulation as though it imposed no real restraint on speech or on the press. E. g.,
Associated Press v. Labor Board, 301 U.S. 103 ; Valentine v. Chrestensen, 316 U.S. 52 ; Railway Express
Agency v. New York, 336 U.S. 106 ; Lewis Publishing Co. v. Morgan, 229 U.S. 288 . We recognized that
restrictions on speech were involved in United States ex rel. Milwaukee Publishing Co. v. Burleson, 255
U.S. 407 , and Gilbert v. Minnesota, 254 U.S. 325 ; but the decisions raised issues so different from those
presented here that they too need not be considered in detail. Our decisions in Stromberg v. California,
283 U.S. 359 , and Winters v. New York, 333 U.S. 507 , turned on the indefiniteness of the statutes.
[ Footnote 8 ] The Taft-Hartley Act also requires that an officer of a union using the services of the
National Labor Relations Board take oath that he "does not believe in, and is not a member of or
supports any organization that believes in or teaches, the overthrow of the United States Government
by force or by any illegal or unconstitutional methods." The Court divided on the validity of this
requirement. Test oaths raise such special problems that decisions on their validity are not directly
helpful here. See West Virginia Board of Education v. Barnette, 319 U.S. 624 .
[ Footnote 9 ] Burns v. United States, 274 U.S. 328 , adds nothing to the decision in Whitney v. California.
62
[ Footnote 10 ] In Herndon v. Georgia, 295 U.S. 441 , the opinion of the Court was concerned solely with
a question of procedure. Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo, however,
thought that the problem of Gitlow v. New York was raised. See 295 U.S. at 446.
[ Footnote 11 ] See the testimony of the Director of the Federal Bureau of Investigation. Hearings before
the House Committee on Un-American Activities, on H. R. 1884 and H. R. 2122, 80th Cong., 1st Sess.,
Part 2, p. 37.
[ Footnote 12 ] Report of the Royal Commission to Investigate Communication of Secret and
Confidential Information to Agents of a Foreign Power, June 27, 1946, p. 44. There appears to be little
reliable evidence demonstrating directly that the Communist Party in this country has recruited persons
willing to engage in espionage or other unlawful activity on behalf of the Soviet Union. The defection of
a Soviet diplomatic employee, however, led to a careful investigation of an espionage network in
Canada, and has disclosed the effectiveness of the Canadian Communist Party in conditioning its
members to disclose to Soviet agents vital information of a secret character. According to the Report of
the Royal Commission investigating the network, conspiratorial characteristics of the Party similar to
those shown in the evidence now before us were instrumental in developing the necessary motivation
to cooperate in the espionage. See pp. 43-83 of the Report.
[ Footnote 13 ] The Communist background of Dr. Klaus Fuchs was brought out in the proceedings
against him. See The [London] Times, Mar. 2, 1950, p. 2, col. 6.
[ Footnote 14 ] See American Communications Assn. v. Douds, 339 U.S. 382 . Former Senator Robert M.
La Follette, Jr., has reported his experience with infiltration of Communist sympathizers into
congressional committee staffs. Collier's, Feb. 8, 1947, p. 22.
[ Footnote 15 ] Immigration laws require, for instance, exclusion and deportation of aliens who advocate
the overthrow of the Government by force and violence, and declare ineligible for naturalization aliens
who are members of organizations so advocating. Act of Feb. 5, 1917, 19, 39 Stat. 889, 8 U.S.C. 155; Act
of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. 137; Act of Oct. 14, 1940, 305, 54 Stat. 1141, 8 U.S.C. 705. The
Hatch Act prohibits employment by any Government agency of members of organizations advocating
overthrow of "our constitutional form of government." Act of Aug. 2, 1939, 9A, 53 Stat. 1148, 5 U.S.C.
(Supp. III) 118j. The Voorhis Act of Oct. 17, 1940, was passed to require registration of organizations
subject to foreign control which engage in political activity. 54 Stat. 1201, 18 U.S.C. 2386. The TaftHartley Act contains a section designed to exclude Communists from positions of leadership in labor
organizations. Act of June 23, 1947, 9 (h), 61 Stat. 146, 29 U.S.C. (Supp. III) 159 (h). And, most recently,
the McCarran Act requires registration of "Communist-action" and "Communist-front" organizations.
Act of Sept. 23, 1950, 7, 64 Stat. 987, 993.
MR. JUSTICE JACKSON, concurring.
This prosecution is the latest of never-ending, because never successful, quests for some legal formula
that will secure an existing order against revolutionary radicalism. It requires us to reappraise, in the
light of our own times and conditions, constitutional doctrines devised under other circumstances to
strike a balance between authority and liberty.
63
Activity here charged to be criminal is conspiracy - that defendants conspired to teach and advocate,
and to organize the Communist Party to teach and advocate, overthrow and destruction of the
Government by force and violence. There is no charge of actual violence or attempt at overthrow. 1
The principal reliance of the defense in this Court is that the conviction cannot stand under the
Constitution because the conspiracy of these defendants presents no "clear and present danger" of
imminent or foreseeable overthrow. [341 U.S. 494, 562]
I.
The statute before us repeats a pattern, originally devised to combat the wave of anarchistic terrorism
that plagued this country about the turn of the century, 2 which lags at least two generations behind
Communist Party techniques.
Anarchism taught a philosophy of extreme individualism and hostility to government and property. Its
avowed aim was a more just order, to be achieved by violent destruction of all government. 3
Anarchism's sporadic and uncoordinated acts of terror were not integrated with an effective
revolutionary machine, but the Chicago Haymarket riots of 1886, 4 attempted murder of the
industrialist Frick, attacks on state officials, and [341 U.S. 494, 563] assassination of President McKinley
in 1901, were fruits of its preaching.
However, extreme individualism was not conducive to cohesive and disciplined organization. Anarchism
fell into disfavor among incendiary radicals, many of whom shifted their allegiance to the rising
Communist Party. Meanwhile, in Europe anarchism had been displaced by Bolshevism as the doctrine
and strategy of social and political upheaval. Led by intellectuals hardened by revolutionary experience,
it was a more sophisticated, dynamic and realistic movement. Establishing a base in the Soviet Union, it
founded an aggressive international Communist apparatus which has modeled and directed a
revolutionary movement able only to harass our own country. But it has seized control of a dozen other
countries.
Communism, the antithesis of anarchism, 5 appears today as a closed system of thought representing
Stalin's [341 U.S. 494, 564] version of Lenin's version of Marxism. As an ideology, it is not one of
spontaneous protest arising from American working-class experience. It is a complicated system of
assumptions, based on European history and conditions, shrouded in an obscure and ambiguous
vocabulary, which allures our ultrasophisticated intelligentsia more than our hard-headed working
people. From time to time it champions all manner of causes and grievances and makes alliances that
may add to its foothold in government or embarrass the authorities.
The Communist Party, nevertheless, does not seek its strength primarily in numbers. Its aim is a
relatively small party whose strength is in selected, dedicated, indoctrinated, and rigidly disciplined
members. From established policy it tolerates no deviation and no debate. It seeks members that are, or
may be, secreted in strategic posts in transportation, communications, industry, government, and
especially in labor unions where it can compel employers to accept and retain its members. 6 It also
seeks to infiltrate and control organizations of professional and other groups. Through these placements
in positions of power it seeks a leverage over society that will make up in power of coercion what it lacks
in power of persuasion.
64
The Communists have no scruples against sabotage, terrorism, assassination, or mob disorder; but
violence is not with them, as with the anarchists, an end in itself. The Communist Party advocates force
only when prudent and profitable. Their strategy of stealth precludes premature or uncoordinated
outbursts of violence, except, of course, when the blame will be placed on shoulders other than their
own. They resort to violence as to truth, not [341 U.S. 494, 565] as a principle but as an expedient.
Force or violence, as they would resort to it, may never be necessary, because infiltration and deception
may be enough.
Force would be utilized by the Communist Party not to destroy government but for its capture. The
Communist recognizes that an established government in control of modern technology cannot be
overthrown by force until it is about ready to fall of its own weight. Concerted uprising, therefore, is to
await that contingency and revolution is seen, not as a sudden episode, but as the consummation of a
long process.
The United States, fortunately, has experienced Communism only in its preparatory stages and for its
pattern of final action must look abroad. Russia, of course, was the pilot Communist revolution, which to
the Marxist confirms the Party's assumptions and points its destiny. 7 [341 U.S. 494, 566] But
Communist technique in the overturn of a free government was disclosed by the coup d'etat in which
they seized power in Czechoslovakia. 8 There the Communist Party during its preparatory stage claimed
and received protection for its freedoms of speech, press, and assembly. Pretending to be but another
political party, it eventually was conceded participation in government, where it entrenched reliable
members chiefly in control of police and information services. When the government faced a foreign
and domestic crisis, the Communist Party had established a leverage strong enough to threaten civil
war. In a period of confusion the Communist plan unfolded and the underground organization came to
the surface throughout the country in the form chiefly of labor "action committees." Communist officers
of the unions took over transportation and allowed only persons with party permits to travel.
Communist printers took over the newspapers and radio and put out only party-approved versions of
events. Possession was taken of telegraph and telephone systems and communications were cut off
wherever directed by party heads. Communist unions took over the factories, and in the cities a partisan
distribution of food was managed by the Communist organization. A virtually bloodless abdication by
the elected government admitted the Communists to power, whereupon they instituted a reign of
oppression and terror, and ruthlessly denied to all others the freedoms which had sheltered their
conspiracy. [341 U.S. 494, 567]
II.
The foregoing is enough to indicate that, either by accident or design, the Communist stratagem outwits
the anti-anarchist pattern of statute aimed against "overthrow by force and violence" if qualified by the
doctrine that only "clear and present danger" of accomplishing that result will sustain the prosecution.
The "clear and present danger" test was an innovation by Mr. Justice Holmes in the Schenck case, 9
reiterated and refined by him and Mr. Justice Brandeis in later cases, 10 all arising before the era of
World War II revealed the subtlety and efficacy of modernized revolutionary techniques used by
totalitarian parties. In those cases, they were faced with convictions under so-called criminal syndicalism
statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism,
pacifism, and left-wing ideologies, the charges often resting on farfetched [341 U.S. 494, 568]
inferences which, if true, would establish only technical or trivial violations. They proposed "clear and
present danger" as a test for the sufficiency of evidence in particular cases.
65
I would save it, unmodified, for application as a "rule of reason" 11 in the kind of case for which it was
devised. When the issue is criminality of a hot-headed speech on a street corner, or circulation of a few
incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school
children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend,
and weigh the necessary materials for decision whether it is a clear and present danger of substantive
evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by
the time of trial or it was never present. The test applies and has meaning where a conviction is sought
to be based on a speech or writing which does not directly or explicitly advocate a crime but to which
such tendency is sought to be attributed by construction or by implication from external circumstances.
The formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied
too generously, the consequences cannot be grave. But its recent expansion has extended, in particular
to Communists, unprecedented immunities. 12 Unless we are to hold our Government captive in a
judge-made verbal trap, we must approach the problem of a well-organized, nation-wide conspiracy,
such as I have [341 U.S. 494, 569] described, as realistically as our predecessors faced the trivialities
that were being prosecuted until they were checked with a rule of reason.
I think reason is lacking for applying that test to this case. [341 U.S. 494, 570]
If we must decide that this Act and its application are constitutional only if we are convinced that
petitioner's conduct creates a "clear and present danger" of violent overthrow, we must appraise
imponderables, including international and national phenomena which baffle the best informed foreign
offices and our most experienced politicians. We would have to foresee and predict the effectiveness of
Communist propaganda, opportunities for infiltration, whether, and when, a time will come that they
consider propitious for action, and whether and how fast our existing government will deteriorate. And
we would have to speculate as to whether an approaching Communist coup would not be anticipated by
a nationalistic fascist movement. No doctrine can be sound whose application requires us to make a
prophecy of that sort in the guise of a legal decision. The judicial process simply is not adequate to a trial
of such far-flung issues. The answers given would reflect our own political predilections and nothing
more.
The authors of the clear and present danger test never applied it to a case like this, nor would I. If
applied as it is proposed here, it means that the Communist plotting is protected during its period of
incubation; its preliminary stages of organization and preparation are immune from the law; the
Government can move only after imminent action is manifest, when it would, of course, be too late.
III.
The highest degree of constitutional protection is due to the individual acting without conspiracy. But
even an individual cannot claim that the Constitution protects him in advocating or teaching overthrow
of government by force or violence. I should suppose no one would doubt that Congress has power to
make such attempted [341 U.S. 494, 571] overthrow a crime. But the contention is that one has the
constitutional right to work up a public desire and will to do what it is a crime to attempt. I think direct
incitement by speech or writing can be made a crime, and I think there can be a conviction without also
proving that the odds favored its success by 99 to 1, or some other extremely high ratio.
The names of Mr. Justice Holmes and Mr. Justice Brandeis cannot be associated with such a doctrine of
governmental disability. After the Schenck case, in which they set forth the clear and present danger
test, they joined in these words of Mr. Justice Holmes, spoken for a unanimous Court:
66
". . . [T]he First Amendment while prohibiting legislation against free speech as such cannot have
been, and obviously was not, intended to give immunity for every possible use of language.
Robertson v. Baldwin, 165 U.S. 275, 281 . We venture to believe that neither Hamilton nor
Madison, nor any other competent person then or later, ever supposed that to make criminal
the counselling of a murder within the jurisdiction of Congress would be an unconstitutional
interference with free speech." Frohwerk v. United States, 249 U.S. 204, 206 .
The same doctrine was earlier stated in Fox v. Washington, 236 U.S. 273, 277 , and that case was
recently and with approval cited in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 .
As aptly stated by Judge Learned Hand in Masses Publishing Co. v. Patten, 244 F. 535, 540: "One may not
counsel or advise others to violate the law as it stands. Words are not only the keys of persuasion, but
the triggers of action, and those which have no purport but to counsel the violation of law cannot by any
latitude of interpretation be a part of that public opinion which is the final source of government in a
democratic state." [341 U.S. 494, 572]
Of course, it is not always easy to distinguish teaching or advocacy in the sense of incitement from
teaching or advocacy in the sense of exposition or explanation. It is a question of fact in each case.
IV.
What really is under review here is a conviction of conspiracy, after a trial for conspiracy, on an
indictment charging conspiracy, brought under a statute outlawing conspiracy. With due respect to my
colleagues, they seem to me to discuss anything under the sun except the law of conspiracy. One of the
dissenting opinions even appears to chide me for "invoking the law of conspiracy." As that is the case
before us, it may be more amazing that its reversal can be proposed without even considering the law of
conspiracy.
The Constitution does not make conspiracy a civil right. The Court has never before done so and I think it
should not do so now. Conspiracies of labor unions, trade associations, and news agencies have been
condemned, although accomplished, evidenced and carried out, like the conspiracy here, chiefly by
letter-writing, meetings, speeches and organization. Indeed, this Court seems, particularly in cases
where the conspiracy has economic ends, to be applying its doctrines with increasing severity. While I
consider criminal conspiracy a dragnet device capable of perversion into an instrument of injustice in the
hands of a partisan or complacent judiciary, it has an established place in our system of law, and no
reason appears for applying it only to concerted action claimed to disturb interstate commerce and
withholding it from those claimed to undermine our whole Government. 13 [341 U.S. 494, 573]
The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of
any other evil it seeks to accomplish. Thus, we recently held in Pinkerton v. United States, 328 U.S. 640,
643 -644, "It has been long and consistently recognized by the Court that the commission of the
substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of
Congress to separate the two and to affix to each a different penalty is well established. . . . And the plea
of double jeopardy is no defense to a conviction for both offenses. . . ."
So far does this doctrine reach that it is well settled that Congress may make it a crime to conspire with
others to do what an individual may lawfully do on his own. This principle is illustrated in conspiracies
that violate the antitrust laws as sustained and applied by this Court. Although one may raise the prices
67
of his own products, and many, acting without concert, may do so, the moment they conspire to that
end they are punishable. The same principle is applied to organized labor. Any workman may quit his
work for any reason, but concerted actions to the same end are in some circumstances forbidden.
National Labor Relations Act, as amended, 61 Stat. 136, 8 (b), 29 U.S.C. 158 (b).
The reasons underlying the doctrine that conspiracy may be a substantive evil in itself, apart from any
evil it may threaten, attempt, or accomplish, are peculiarly appropriate to conspiratorial Communism.
"The reason for finding criminal liability in case of a combination to effect an unlawful end or to
use unlawful means, where none would exist, even though the act contemplated were actually
committed by an individual, is that a combination of persons to commit a wrong, either as an
end or as a means to an end, is so much more dangerous, because of its increased power to do
wrong, because it is more difficult [341 U.S. 494, 574] to guard against and prevent the evil
designs of a group of persons than of a single person, and because of the terror which fear of
such a combination tends to create in the minds of people." 14
There is lamentation in the dissents about the injustice of conviction in the absence of some overt act.
Of course, there has been no general uprising against the Government, but the record is replete with
acts to carry out the conspiracy alleged, acts such as always are held sufficient to consummate the crime
where the statute requires an overt act.
But the shorter answer is that no overt act is or need be required. The Court, in antitrust cases, early
upheld the power of Congress to adopt the ancient common law that makes conspiracy itself a crime.
Through Mr. Justice Holmes, it said: "Coming next to the objection that no overt act is laid, the answer is
that the Sherman Act punishes the conspiracies at which it is aimed on the common law footing - that is
to say, it does not make the doing of any act other than the act of conspiring a condition of liability."
Nash v. United States, 229 U.S. 373, 378 . Reiterated, United States v. Socony-Vacuum Oil Co., 310 U.S.
150, 252 . It is not to be supposed that the power of Congress to protect the Nation's existence is more
limited than its power to protect interstate commerce.
Also, it is urged that since the conviction is for conspiracy to teach and advocate, and to organize the
Communist Party to teach and advocate, the First Amendment is violated, because freedoms of speech
and press protect teaching and advocacy regardless of what is taught or advocated. I have never
thought that to be the law. [341 U.S. 494, 575]
I do not suggest that Congress could punish conspiracy to advocate something, the doing of which it
may not punish. Advocacy or exposition of the doctrine of communal property ownership, or any
political philosophy unassociated with advocacy of its imposition by force or seizure of government by
unlawful means could not be reached through conspiracy prosecution. But it is not forbidden to put
down force or violence, it is not forbidden to punish its teaching or advocacy, and the end being
punishable, there is no doubt of the power to punish conspiracy for the purpose.
The defense of freedom of speech or press has often been raised in conspiracy cases, because, whether
committed by Communists, by businessmen, or by common criminals, it usually consists of words
written or spoken, evidenced by letters, conversations, speeches or documents. Communication is the
essence of every conspiracy, for only by it can common purpose and concert of action be brought about
or be proved. However, when labor unions raised the defense of free speech against a conspiracy
charge, we unanimously said:
68
"It rarely has been suggested that the constitutional freedom for speech and press extends its
immunity to speech or writing used as an integral part of conduct in violation of a valid criminal
statute. We reject the contention now. . . .
.....
". . . It is true that the agreements and course of conduct here were as in most instances brought
about through speaking or writing. But it has never been deemed an abridgment of freedom of
speech or press to make a course of conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language, either spoken, written, or printed. . . .
Such an expansive interpretation [341 U.S. 494, 576] of the constitutional guaranties of speech
and press would make it practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies deemed injurious to
society." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 , 502.
A contention by the press itself, in a conspiracy case, that it was entitled to the benefits of the "clear and
present danger" test, was curtly rebuffed by this Court, saying: "Nor is a publisher who engages in
business practices made unlawful by the Sherman Act entitled to a partial immunity by reason of the
`clear and present danger' doctrine . . . . Formulated as it was to protect liberty of thought and of
expression, it would degrade the clear and present danger doctrine to fashion from it a shield for
business publishers who engage in business practices condemned by the Sherman Act. . . ." Associated
Press v. United States, 326 U.S. 1, 7 . I should think it at least as "degrading" to fashion of it a shield for
conspirators whose ultimate purpose is to capture or overthrow the Government.
In conspiracy cases the Court not only has dispensed with proof of clear and present danger but even of
power to create a danger: "It long has been settled, however, that a `conspiracy to commit a crime is a
different offense from the crime that is the object of the conspiracy.' . . . Petitioners, for example, might
have been convicted here of a conspiracy to monopolize without ever having acquired the power to
carry out the object of the conspiracy . . . ." American Tobacco Co. v. United States, 328 U.S. 781, 789 .
Having held that a conspiracy alone is a crime and its consummation is another, it would be weird legal
reasoning to hold that Congress could punish the one only if there was "clear and present danger" of the
second. This [341 U.S. 494, 577] would compel the Government to prove two crimes in order to convict
for one.
When our constitutional provisions were written, the chief forces recognized as antagonists in the
struggle between authority and liberty were the Government on the one hand and the individual citizen
on the other. It was thought that if the state could be kept in its place the individual could take care of
himself.
In more recent times these problems have been complicated by the intervention between the state and
the citizen of permanently organized, well-financed, semisecret and highly disciplined political
organizations. Totalitarian groups here and abroad perfected the technique of creating private
paramilitary organizations to coerce both the public government and its citizens. These organizations
assert as against our Government all of the constitutional rights and immunities of individuals and at the
same time exercise over their followers much of the authority which they deny to the Government. The
Communist Party realistically is a state within a state, an authoritarian dictatorship within a republic. It
demands these freedoms, not for its members, but for the organized party. It denies to its own
members at the same time the freedom to dissent, to debate, to deviate from the party line, and
enforces its authoritarian rule by crude purges, if nothing more violent.
69
The law of conspiracy has been the chief means at the Government's disposal to deal with the growing
problems created by such organizations. I happen to think it is an awkward and inept remedy, but I find
no constitutional authority for taking this weapon from the Government. There is no constitutional right
to "gang up" on the Government.
While I think there was power in Congress to enact this statute and that, as applied in this case, it
cannot be [341 U.S. 494, 578] held unconstitutional, 15 I add that I have little faith in the long-range
effectiveness of this conviction to stop the rise of the Communist movement. Communism will not go to
jail with these Communists. No decision by this Court can forestall revolution whenever the existing
government fails to command the respect and loyalty of the people and sufficient distress and
discontent is allowed to grow up among the masses. Many failures by fallen governments attest that no
government can long prevent revolution by outlawry. 16 Corruption, ineptitude, inflation, oppressive
taxation, militarization, injustice, and loss of leadership capable of intellectual initiative in domestic or
foreign affairs are allies on which the Communists [341 U.S. 494, 579] count to bring opportunity
knocking to their door. Sometimes I think they may be mistaken. But the Communists are not building
just for today - the rest of us might profit by their example.
[ Footnote 1 ] The Government's own summary of its charge is: "The indictment charged that from April
1, 1945, to the date of the indictment petitioners unlawfully, wilfully, and knowingly conspired with
each other and with other persons unknown to the grand jury (1) to organize as the Communist Party of
the United States of America a society, group and assembly of persons who teach and advocate the
overthrow and destruction of the Government of the United States by force and violence, and (2)
knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying the
Government of the United States by force and violence. The indictment alleged that Section 2 of the
Smith Act proscribes these acts and that the conspiracy to take such action is a violation of Section 3 of
the act (18 U.S.C. 10, 11 (1946 ed.))."
[ Footnote 2 ] The Government says this Act before us was modeled after the New York Act of 1909,
sustained by this Court in Gitlow v. New York, 268 U.S. 652 . That, in turn, as the Court pointed out,
followed an earlier New York Act of 1902. Shortly after the assassination of President McKinley by an
anarchist, Congress adopted the same concepts in the Immigration Act of March 3, 1903. 32 Stat. 1213,
2. Some germs of the same concept can be found in some reconstruction legislation, such as the
Enforcement Act of 1871, 17 Stat. 13. The Espionage Act of 1917, 40 Stat. 217, tit. 1, 3, which gave rise
to a series of civil-rights decisions, applied only during war and defined as criminal "false statements
with intent" to interfere with our war effort or cause insubordination in the armed forces or obstruct
recruiting. However, a wave of "criminal syndicalism statutes" were enacted by the States. They were
generally upheld, Whitney v. California, 274 U.S. 357 , and prosecutions under them were active from
1919 to 1924. In California alone, 531 indictments were returned and 164 persons convicted. 4 Encyc.
Soc. Sci. 582, 583. The Smith Act followed closely the terminology designed to incriminate the methods
of terroristic anarchism.
[ Footnote 3 ] Elementary texts amplify the theory and practice of these movements which must be
greatly oversimplified in this opinion. See Anarchism, 2 Encyc. Soc. Sci. 46; Nihilism, 11 Encyc. Soc. Sci.
377.
[ Footnote 4 ] Spies v. Illinois, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898.
70
[ Footnote 5 ] Prof. Beard demonstrates this antithesis by quoting the Russian anarchist leader Bakunin,
as follows:
"`Marx is an authoritarian and centralizing communist. He wishes what we wish: the complete
triumph of economic and social equality, however, within the state and through the power of
the state, through the dictatorship of a very strong and, so to speak, despotic provisional
government, that is, by the negation of liberty. His economic ideal is the state as the sole owner
of land and capital, tilling the soil by means of agricultural associations, under the management
of its engineers, and directing through the agency of capital all industrial and commercial
associations.
"`We demand the same triumph of economic and social equality through the abolition of the
state and everything called juridical right, which is according to our view the permanent
negation of human right. We wish the reconstruction of society and the establishment of the
unity of mankind not from above downward through authority, through socialistic officials,
engineers and public technicians, but from below upward through the voluntary federation of
labor associations of all kinds emancipated entirely from the yoke of the state.'" Beard,
Individualism and Capitalism, 1 Encyc. Soc. Sci. 145, 158.
[ Footnote 6 ] For methods and objects of infiltration of labor unions, see American Communications
Assn. v. Douds, 339 U.S. 382, 422 .
[ Footnote 7 ] The Czar's government, in February 1917, literally gave up, almost without violence, to the
Provisional Government, because it was ready to fall apart from its corruption, ineptitude, superstition,
oppression and defeat. The revolutionary parties had little to do with this and regarded it as a
bourgeoisie triumph. Lenin was an exile in Switzerland, Trotsky in the United States, and Stalin was in
Siberia. The Provisional Government attempted to continue the war against Germany, but it, too, was
unable to solve internal problems and its Galician campaign failed with heavy losses. By October, its
prestige and influence sank so low that it could not continue. Meanwhile, Lenin and Trotsky had
returned and consolidated the Bolshevik position around the Soviets, or trade unions. They simply took
over power in an almost bloodless revolution between October 25 and November 7, 1917. That Lenin
and Trotsky represented only a minority was demonstrated in November elections, in which the
Bolsheviks secured less than a quarter of the seats. Then began the series of opportunistic movements
to entrench themselves in power. Faced by invasion of the allies, by counterrevolution, and the
attempted assassination of Lenin, terrorism was resorted to on a large scale and all the devices of the
Czar's police state were reestablished. See 1 Carr, The Bolshevik Revolution 1917-1923, 99-110, and
Moore, Soviet Politics - The Dilemma of Power, 117-139.
[ Footnote 8 ] Duchacek, The Strategy of Communist Infiltration: Czechoslovakia, 1944-1948, World
Politics, Vol. II, No. 3 (April 1950), 345-372; and The February Coup in Czechoslovakia, id., July 1950, 511532; see also Kertesz, The Methods of Communist Conquest: Hungary, 1944-1947, id., October 1950, 2054; Lasswell, The Strategy of Soviet Propaganda, 24 Acad. Pol. Sci. Proc. 214, 221. See also Friedman,
The Break-up of Czech Democracy.
[ Footnote 9 ] Schenck v. United States, 249 U.S. 47 . This doctrine has been attacked as one which
"annuls the most significant purpose of the First Amendment. It destroys the intellectual basis of our
plan of self-government." Meiklejohn, Free Speech And Its Relation to Self-Government, 29. It has been
praised: "The concept of freedom of speech received for the first time an authoritative judicial
interpretation in accord with the purpose of the framers of the Constitution." Chafee, Free Speech in the
71
United States, 82. In either event, it is the only original judicial thought on the subject, all later cases
having made only extensions of its application. All agree that it means something very important, but no
two seem to agree on what it is. See concurring opinion, MR. JUSTICE FRANKFURTER, Kovacs v. Cooper,
336 U.S. 77, 89 .
[ Footnote 10 ] Gitlow v. New York, 268 U.S. 652 ; Whitney v. California, 274 U.S. 357 . Holmes' comment
on the former, in his letters to Sir Frederick Pollock of June 2 and 18, 1925, as "a case in which
conscience and judgment are a little in doubt," and description of his dissent as one "in favor of the
rights of an anarchist (so-called) to talk drool in favor of the proletarian dictatorship" show the tentative
nature of his test, even as applied to a trivial case. Holmes-Pollock Letters (Howe ed. 1946).
[ Footnote 11 ] So characterized by Mr. Justice Brandeis in Schaefer v. United States, 251 U.S. 466, 482 .
[ Footnote 12 ] Recent cases have pushed the "clear and present danger" doctrine to greater extremes.
While Mr. Justice Brandeis said only that the evil to be feared must be "imminent" and "relatively
serious," Whitney v. California, 274 U.S. 357, 376 and 377, more recently it was required "that the
substantive evil must be extremely serious and the [341 U.S. 494, 569] degree of imminence extremely
high before utterances can be punished." Bridges v. California, 314 U.S. 252, 263 . (Italics supplied.)
Schneiderman v. United States, 320 U.S. 118 , overruled earlier holdings that the courts could take
judicial notice that the Communist Party does advocate overthrow of the Government by force and
violence. This Court reviewed much of the basic Communist literature that is before us now, and held
that it was within "the area of allowable thought," id., at 139, that it does not show lack of attachment
to the Constitution, and that success of the Communist Party would not necessarily mean the end of
representative government. The Court declared further that "A tenable conclusion from the foregoing is
that the Party in 1927 desired to achieve its purpose by peaceful and democratic means, and as a
theoretical matter justified the use of force and violence only as a method of preventing an attempted
forcible counter-overthrow once the Party had obtained control in a peaceful manner, or as a method of
last resort to enforce the majority will if at some indefinite future time because of peculiar
circumstances constitutional or peaceful channels were no longer open." Id., at 157. Moreover, the
Court considered that this "mere doctrinal justification or prediction of the use of force under
hypothetical conditions at some indefinite future time - prediction that is not calculated or intended to
be presently acted upon, . . . ." ibid., was within the realm of free speech. A dissent by Mr. Chief Justice
Stone, for himself and Justices Roberts and Frankfurter, challenged these naive conclusions, as they did
again in Bridges v. Wixon, 326 U.S. 135 , in which the Court again set aside an Attorney General's
deportation order. Here Mr. Justice Murphy, without whom there would not have been a majority for
the decision, speaking for himself in a concurring opinion, pronounced the whole deportation statute
unconstitutional, as applied to Communists, under the "clear and present danger test," because, "Not
the slightest evidence was introduced to show that either Bridges or the Communist Party seriously and
imminently threatens to uproot the Government by force or violence." 326 U.S. at 165.
[ Footnote 13 ] These dangers were more fully set out in Krulewitch v. United States, 336 U.S. 440, 445 .
[ Footnote 14 ] Miller on Criminal Law, 110. Similar reasons have been reiterated by this Court. United
States v. Rabinowich, 238 U.S. 78, 88 ; Pinkerton v. United States, 328 U.S. 640, 643 -644.
72
[ Footnote 15 ] The defendants have had the benefit so far in this case of all the doubts and confusions
afforded by attempts to apply the "clear and present danger" doctrine. While I think it has no proper
application to the case, these efforts have been in response to their own contentions and favored rather
than prejudiced them. There is no call for reversal on account of it.
[ Footnote 16 ] The pathetically ineffective efforts of free European states to overcome feebleness of the
Executive and decomposition of the Legislative branches of government by legal proscriptions are
reviewed in Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col. L.
Rev. 591, 725 (1938). The Nazi Party seizure of power in Germany occurred while both it and its
Communist counterpart were under sentence of illegality from the courts of the Weimar Republic. The
German Criminal Code struck directly at the disciplinary system of totalitarian parties. It provided:
"The participation in an organization the existence, constitution, or purposes of which are to be
kept secret from the Government, or in which obedience to unknown superiors or unconditional
obedience to known superiors is pledged, is punishable by imprisonment up to six months for
the members and from one month to one year for the founders and officers. Public officials may
be deprived of the right to hold public office for a period of from one to five years." 2 Nazi
Conspiracy and Aggression (GPO 1946) 11.
The Czar's government of Russia fell while the Communist leaders were in exile. See n. 7. Instances of
similar failures could be multiplied indefinitely.
MR. JUSTICE BLACK, dissenting.
Here again, as in Breard v. Alexandria, post, p. 622, decided this day, my basic disagreement with the
Court is not as to how we should explain or reconcile what was said in prior decisions but springs from a
fundamental difference in constitutional approach. Consequently, it would serve no useful purpose to
state my position at length.
At the outset I want to emphasize what the crime involved in this case is, and what it is not. These
petitioners were not charged with an attempt to overthrow the Government. They were not charged
with overt acts of any kind designed to overthrow the Government. They were not even charged with
saying anything or writing anything designed to overthrow the Government. The charge was that they
agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they
conspired to organize the Communist Party and to use speech or newspapers and other publications in
the future to teach and advocate the forcible overthrow of the Government. No matter how it is
worded, this is a virulent form of prior censorship of speech and press, which I believe the First
Amendment forbids. I would hold 3 of the Smith Act authorizing this prior restraint unconstitutional on
its face and as applied.
But let us assume, contrary to all constitutional ideas of fair criminal procedure, that petitioners
although not indicted for the crime of actual advocacy, may be punished for it. Even on this radical
assumption, the other opinions in this case show that the only way to affirm [341 U.S. 494, 580] these
convictions is to repudiate directly or indirectly the established "clear and present danger" rule. This the
Court does in a way which greatly restricts the protections afforded by the First Amendment. The
opinions for affirmance indicate that the chief reason for jettisoning the rule is the expressed fear that
advocacy of Communist doctrine endangers the safety of the Republic. Undoubtedly, a governmental
policy of unfettered communication of ideas does entail dangers. To the Founders of this Nation,
however, the benefits derived from free expression were worth the risk. They embodied this philosophy
73
in the First Amendment's command that "Congress shall make no law . . . abridging the freedom of
speech, or of the press . . . ." I have always believed that the First Amendment is the keystone of our
Government, that the freedoms it guarantees provide the best insurance against destruction of all
freedom. At least as to speech in the realm of public matters, I believe that the "clear and present
danger" test does not "mark the furthermost constitutional boundaries of protected expression" but
does "no more than recognize a minimum compulsion of the Bill of Rights." Bridges v. California, 314
U.S. 252, 263 .
So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First
Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of
Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First
Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so
construed is not likely to protect any but those "safe" or orthodox views which rarely need its
protection. I must also express my objection to the holding because, as MR. JUSTICE DOUGLAS' dissent
shows, it sanctions the determination of a crucial issue of fact by the judge rather than by the jury. Nor
can I let this opportunity [341 U.S. 494, 581] pass without expressing my objection to the severely
limited grant of certiorari in this case which precluded consideration here of at least two other reasons
for reversing these convictions: (1) the record shows a discriminatory selection of the jury panel which
prevented trial before a representative cross-section of the community; (2) the record shows that one
member of the trial jury was violently hostile to petitioners before and during the trial.
Public opinion being what it now is, few will protest the conviction of these Communist petitioners.
There is hope, however, that in calmer times, when present pressures, passions and fears subside, this
or some later Court will restore the First Amendment liberties to the high preferred place where they
belong in a free society.
MR. JUSTICE DOUGLAS, dissenting.
If this were a case where those who claimed protection under the First Amendment were teaching the
techniques of sabotage, the assassination of the President, the filching of documents from public files,
the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to
speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond
the pale along with obscenity and immorality. This case was argued as if those were the facts. The
argument imported much seditious conduct into the record. That is easy and it has popular appeal, for
the activities of Communists in plotting and scheming against the free world are common knowledge.
But the fact is that no such evidence was introduced at the trial. There is a statute which makes a
seditious conspiracy unlawful. 1 Petitioners, however, were not [341 U.S. 494, 582] charged with a
"conspiracy to overthrow" the Government. They were charged with a conspiracy to form a party and
groups and assemblies of people who teach and advocate the overthrow of our Government by force or
violence and with a conspiracy to advocate and teach its overthrow by force and violence. 2 It may well
be that indoctrination in the techniques of terror to destroy the Government would be indictable under
either statute. But the teaching which is condemned here is of a different character.
So far as the present record is concerned, what petitioners did was to organize people to teach and
themselves teach the Marxist-Leninist doctrine contained chiefly in four books: 3 Stalin, Foundations of
Leninism (1924); Marx and Engels, Manifesto of the Communist Party (1848); Lenin, The State and
Revolution (1917); History of the Communist Party of the Soviet Union (B.) (1939).
74
Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are understood, the
ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities
becomes apparent, and the chances of its success less likely. That is not, of course, the reason why
petitioners chose these books for their classrooms. They are fervent Communists to whom these
volumes are gospel. They preached the creed with the hope that some day it would be acted upon. [341
U.S. 494, 583]
The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists
do literature offensive to their creed. But if the books themselves are not outlawed, if they can lawfully
remain on library shelves, by what reasoning does their use in a classroom become a crime? It would not
be a crime under the Act to introduce these books to a class, though that would be teaching what the
creed of violent overthrow of the Government is. The Act, as construed, requires the element of intent that those who teach the creed believe in it. The crime then depends not on what is taught but on who
the teacher is. That is to make freedom of speech turn not on what is said, but on the intent with which
it is said. Once we start down that road we enter territory dangerous to the liberties of every citizen.
There was a time in England when the concept of constructive treason flourished. Men were punished
not for raising a hand against the king but for thinking murderous thoughts about him. The Framers of
the Constitution were alive to that abuse and took steps to see that the practice would not flourish here.
Treason was defined to require overt acts - the evolution of a plot against the country into an actual
project. The present case is not one of treason. But the analogy is close when the illegality is made to
turn on intent, not on the nature of the act. We then start probing men's minds for motive and purpose;
they become entangled in the law not for what they did but for what they thought; they get convicted
not for what they said but for the purpose with which they said it.
Intent, of course, often makes the difference in the law. An act otherwise excusable or carrying minor
penalties may grow to an abhorrent thing if the evil intent is present. We deal here, however, not with
ordinary acts but with speech, to which the Constitution has given a special sanction. [341 U.S. 494, 584]
The vice of treating speech as the equivalent of overt acts of a treasonable or seditious character is
emphasized by a concurring opinion, which by invoking the law of conspiracy makes speech do service
for deeds which are dangerous to society. The doctrine of conspiracy has served divers and oppressive
purposes and in its broad reach can be made to do great evil. But never until today has anyone seriously
thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious
conduct. Yet that is precisely what is suggested. I repeat that we deal here with speech alone, not with
speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged in the indictment.
To make a lawful speech unlawful because two men conceive it is to raise the law of conspiracy to
appalling proportions. That course is to make a radical break with the past and to violate one of the
cardinal principles of our constitutional scheme.
Free speech has occupied an exalted position because of the high service it has given our society. Its
protection is essential to the very existence of a democracy. The airing of ideas releases pressures which
otherwise might become destructive. When ideas compete in the market for acceptance, full and free
discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate
encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a
society from becoming stagnant and unprepared for the stresses and strains that work to tear all
civilizations apart.
75
Full and free discussion has indeed been the first article of our faith. We have founded our political
system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial
group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have
trusted the common sense of our [341 U.S. 494, 585] people to choose the doctrine true to our genius
and to reject the rest. This has been the one single outstanding tenet that has made our institutions the
symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised
minority than to let them vent their spleen. We have above all else feared the political censor. We have
wanted a land where our people can be exposed to all the diverse creeds and cultures of the world.
There comes a time when even speech loses its constitutional immunity. Speech innocuous one year
may at another time fan such destructive flames that it must be halted in the interests of the safety of
the Republic. That is the meaning of the clear and present danger test. When conditions are so critical
that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise,
free speech which is the strength of the Nation will be the cause of its destruction.
Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more
than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its
contents. There must be some immediate injury to society that is likely if speech is allowed. The classic
statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v.
California, 274 U.S. 357, 376 -377,
"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 [341 U.S. 494, 586] 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. 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
short 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, 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.
"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
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." (Italics added.) [341 U.S. 494, 587]
I had assumed that the question of the clear and present danger, being so critical an issue in the case,
would be a matter for submission to the jury. It was squarely held in Pierce v. United States, 252 U.S.
76
239, 244 , to be a jury question. Mr. Justice Pitney, speaking for the Court, said, "Whether the statement
contained in the pamphlet had a natural tendency to produce the forbidden consequences, as alleged,
was a question to be determined not upon demurrer but by the jury at the trial." That is the only time
the Court has passed on the issue. None of our other decisions is contrary. Nothing said in any of the
nonjury cases has detracted from that ruling. 4 The statement in Pierce v. United States, supra, states
the law as it has been and as it should be. The Court, I think, errs when it treats the question as one of
law.
Yet, whether the question is one for the Court or the jury, there should be evidence of record on the
issue. This record, however, contains no evidence whatsoever showing that the acts charged, viz., the
teaching of the Soviet theory of revolution with the hope that it will be realized, have created any clear
and present danger to the Nation. The Court, however, rules to the contrary. It says, "The formation by
petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when
the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable
nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our
relations with countries with whom petitioners were in the very least ideologically attuned, convince us
that their convictions were justified on this score."
That ruling is in my view not responsive to the issue in the case. We might as well say that the speech of
[341 U.S. 494, 588] petitioners is outlawed because Soviet Russia and her Red Army are a threat to
world peace.
The nature of Communism as a force on the world scene would, of course, be relevant to the issue of
clear and present danger of petitioners' advocacy within the United States. But the primary
consideration is the strength and tactical position of petitioners and their converts in this country. On
that there is no evidence in the record. If we are to take judicial notice of the threat of Communists
within the nation, it should not be difficult to conclude that as a political party they are of little
consequence. Communists in this country have never made a respectable or serious showing in any
election. I would doubt that there is a village, let alone a city or county or state, which the Communists
could carry. Communism in the world scene is no bogeyman; but Communism as a political faction or
party in this country plainly is. Communism has been so thoroughly exposed in this country that it has
been crippled as a political force. Free speech has destroyed it as an effective political party. It is
inconceivable that those who went up and down this country preaching the doctrine of revolution which
petitioners espouse would have any success. In days of trouble and confusion, when bread lines were
long, when the unemployed walked the streets, when people were starving, the advocates of a short-cut
by revolution might have a chance to gain adherents. But today there are no such conditions. The
country is not in despair; the people know Soviet Communism; the doctrine of Soviet revolution is
exposed in all of its ugliness and the American people want none of it.
How it can be said that there is a clear and present danger that this advocacy will succeed is, therefore,
a mystery. Some nations less resilient than the United States, where illiteracy is high and where
democratic traditions are only budding, might have to take drastic [341 U.S. 494, 589] steps and jail
these men for merely speaking their creed. But in America they are miserable merchants of unwanted
ideas; their wares remain unsold. The fact that their ideas are abhorrent does not make them powerful.
The political impotence of the Communists in this country does not, of course, dispose of the problem.
Their numbers; their positions in industry and government; the extent to which they have in fact
infiltrated the police, the armed services, transportation, stevedoring, power plants, munitions works,
77
and other critical places - these facts all bear on the likelihood that their advocacy of the Soviet theory of
revolution will endanger the Republic. But the record is silent on these facts. If we are to proceed on the
basis of judicial notice, it is impossible for me to say that the Communists in this country are so potent
or so strategically deployed that they must be suppressed for their speech. I could not so hold unless I
were willing to conclude that the activities in recent years of committees of Congress, of the Attorney
General, of labor unions, of state legislatures, and of Loyalty Boards were so futile as to leave the
country on the edge of grave peril. To believe that petitioners and their following are placed in such
critical positions as to endanger the Nation is to believe the incredible. It is safe to say that the followers
of the creed of Soviet Communism are known to the F. B. I.; that in case of war with Russia they will be
picked up overnight as were all prospective saboteurs at the commencement of World War II; that the
invisible army of petitioners is the best known, the most beset, and the least thriving of any fifth column
in history. Only those held by fear and panic could think otherwise.
This is my view if we are to act on the basis of judicial notice. But the mere statement of the opposing
views indicates how important it is that we know the facts before we act. Neither prejudice nor hate nor
senseless [341 U.S. 494, 590] fear should be the basis of this solemn act. Free speech - the glory of our
system of government - should not be sacrificed on anything less than plain and objective proof of
danger that the evil advocated is imminent. On this record no one can say that petitioners and their
converts are in such a strategic position as to have even the slightest chance of achieving their aims.
The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech."
The Constitution provides no exception. This does not mean, however, that the Nation need hold its
hand until it is in such weakened condition that there is no time to protect itself from incitement to
revolution. Seditious conduct can always be punished. But the command of the First Amendment is so
clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril
from the speech itself. The First Amendment makes confidence in the common sense of our people and
in their maturity of judgment the great postulate of our democracy. Its philosophy is that violence is
rarely, if ever, stopped by denying civil liberties to those advocating resort to force. The First
Amendment reflects the philosophy of Jefferson "that it is time enough for the rightful purposes of civil
government, for its officers to interfere when principles break out into overt acts against peace and
good order." 5 The political censor has no place in our public debates. Unless and until extreme and
necessitous circumstances are shown, our aim should be to keep speech unfettered and to allow the
processes [341 U.S. 494, 591] of law to be invoked only when the provocateurs among us move from
speech to action.
Vishinsky wrote in 1938 in The Law of the Soviet State, "In our state, naturally, there is and can be no
place for freedom of speech, press, and so on for the foes of socialism."
Our concern should be that we accept no such standard for the United States. Our faith should be that
our people will never give support to these advocates of revolution, so long as we remain loyal to the
purposes for which our Nation was founded.
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
There have been numerous First Amendment cases before the Court raising the issue of clear and
present danger since Mr. Justice Holmes first formulated the test in Schenck v. United States, 249 U.S.
47, 52 . Most of them, however, have not involved jury trials.
The cases which may be deemed at all relevant to our problem can be classified as follows:
78
CONVICTIONS FOR CONTEMPT OF COURT (NON-JURY): Near v. Minnesota, 283 U.S. 697 ; Bridges v.
California, 314 U.S. 252 ; Thomas v. Collins, 323 U.S. 516 ; Pennekamp v. Florida, 328 U.S. 331 ; Craig v.
Harney, 331 U.S. 367 .
CONVICTIONS BY STATE COURTS SITTING WITHOUT JURIES, GENERALLY FOR VIOLATIONS OF LOCAL
ORDINANCES: Lovell v. Griffin, 303 U.S. 444 ; Schneider v. State, 308 U.S. 147 ; Cantwell v. Connecticut,
310 U.S. 296 ; Marsh v. Alabama, 326 U.S. 501 ; Tucker v. Texas, 326 U.S. 517 ; Winters v. New York, 333
U.S. 507 ; Saia v. New York, 334 U.S. 558 ; Kovacs v. Cooper, 336 U.S. 77 ; Kunz v. New York, 340 U.S. 290
; Feiner v. New York, 340 U.S. 315 .
INJUNCTIONS AGAINST ENFORCEMENT OF STATE OR LOCAL LAWS (NON-JURY): Grosjean v. American
Press Co., [341 U.S. 494, 592] 297 U.S. 233 ; Hague v. C. I. O., 307 U.S. 496 ; Minersville School District v.
Gobitis, 310 U.S. 586 ; West Virginia Board of Education v. Barnette, 319 U.S. 624 .
ADMINISTRATIVE PROCEEDINGS (NON-JURY): Bridges v. Wixon, 326 U.S. 135 ; Schneiderman v. United
States, 320 U.S. 118 ; American Communications Association v. Douds, 339 U.S. 382 .
CASES TRIED BEFORE JURIES FOR VIOLATIONS OF STATE LAWS DIRECTED AGAINST ADVOCACY OF
ANARCHY, CRIMINAL SYNDICALISM, ETC.: Gilbert v. Minnesota, 254 U.S. 325 ; Gitlow v. New York, 268
U.S. 652 ; Whitney v. California, 274 U.S. 357 ; Fiske v. Kansas, 274 U.S. 380 ; Stromberg v. California, 283
U.S. 359 ; De Jonge v. Oregon, 299 U.S. 353 ; Herndon v. Lowry, 301 U.S. 242 ; Taylor v. Mississippi, 319
U.S. 583 ; or for minor local offenses: Cox v. New Hampshire, 312 U.S. 569 ; Chaplinsky v. New
Hampshire, 315 U.S. 568 ; Terminiello v. Chicago, 337 U.S. 1 ; Niemotko v. Maryland, 340 U.S. 268 .
FEDERAL PROSECUTIONS BEFORE JURIES UNDER THE ESPIONAGE ACT OF 1917 FOLLOWING WORLD
WAR I: Schenck v. United States, 249 U.S. 47 ; Frohwerk v. United States, 249 U.S. 204 ; Debs v. United
States, 249 U.S. 211 ; Abrams v. United States, 250 U.S. 616 ; Schaefer v. United States, 251 U.S. 466 ;
Pierce v. United States, 252 U.S. 239 . Pierce v. United States ruled that the question of clear and
present danger was for the jury. In the other cases in this group the question whether the issue was for
the court or the jury was not raised or passed upon.
FEDERAL PROSECUTION BEFORE A JURY UNDER THE ESPIONAGE ACT OF 1917 FOLLOWING WORLD WAR
II: Hartzel v. United States, 322 U.S. 680 . The jury was instructed on clear and present danger in terms
drawn from the language of Mr. Justice Holmes in Schenck v. United States, supra, p. 52. The Court
reversed the conviction on the ground that there had not been sufficient evidence for submission of the
case to the jury.
[ Footnote 1 ] 18 U.S.C. 2384 provides: "If two or more persons in any State or Territory, or in any place
subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force
the [341 U.S. 494, 582] Government of the United States, or to levy war against them, or to oppose by
force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the
United States, or by force to seize, take, or possess any property of the United States contrary to the
authority thereof, they shall each be fined not more than $5,000 or imprisoned not more than six years,
or both."
[ Footnote 2 ] 54 Stat. 671, 18 U.S.C. 10, 11.
79
[ Footnote 3 ] Other books taught were Stalin, Problems of Leninism, Strategy and Tactics of World
Communism (H. R. Doc. No. 619, 80th Cong., 2d Sess.), and Program of the Communist International.
[ Footnote 4 ] The cases which reached the Court are analyzed in the Appendix attached to this opinion,
post, p. 591.
[ Footnote 5 ] 12 Hening's Stat. (Virginia 1823), c. 34, p. 84. Whipple, Our Ancient Liberties (1927), p. 95,
states: "This idea that the limit on freedom of speech or press should be set only by an actual overt act
was not new. It had been asserted by a long line of distinguished thinkers including John Locke,
Montesquieu in his The Spirit of the Laws (`Words do not constitute an overt act'), the Rev. Phillip
Furneaux, James Madison, and Thomas Jefferson." [341 U.S. 494, 593]
80
U.S. Supreme Court
YATES v. UNITED STATES, 354 U.S. 298 (1957)
354 U.S. 298
YATES ET AL. v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. * No. 6.
Argued October 8-9, 1956.
Decided June 17, 1957.
The 14 petitioners, leaders of the Communist Party in California, were indicated in 1951 in a Federal
District Court under 3 of the Smith Act and 18 U.S.C. 371 for conspiring (1) to advocate and teach the
duty and necessity of overthrowing the Government of the United States by force and violence, and (2)
to organize, as the Communist Party of the United States, a society of persons who so advocate and
teach, all with the intent of causing the overthrow of the Government by force and violence as speedily
as circumstances would permit. The indictment charged that the conspiracy originated in 1940 and
continued down to the date of the indictment and that, in carrying it out, petitioners and their coconspirators would (a) become members and officers of the Communist Party, with knowledge of its
unlawful purposes, and assume leadership in carrying out its policies and activities, (b) cause to be
organized units of the Party in California and elsewhere, (c) write and publish articles on such advocacy
and teaching, (d) conduct schools for the indoctrination of Party members in such advocacy and
teaching, and (e) recruit new Party members, particularly from among persons employed in the key
industries of the Nation. It also alleged 23 overt acts in furtherance of the conspiracy. Petitioners were
convicted after a jury trial, and their convictions were sustained by the Court of Appeals. Held: The
convictions are reversed and the cause is remanded to the District Court with directions to enter
judgments of acquittal as to five of the petitioners and to grant a new trial as to the others. Pp. 300-338.
1. Since the Communist Party came into being in 1945, and the indictment was not returned
until 1951, the three-year statute of limitations had run on the "organizing" charge, and
required the withdrawal of that part of the indictment from the jury's consideration. Pp. 303312. [354 U.S. 298, 299]
(a) Applying the rule that criminal statutes are to be construed strictly, the word "organize," as
used in the Smith Act, is construed as referring only to acts entering into the creation of a new
organization, and not to acts thereafter performed in carrying on its activities, even though the
latter may loosely be termed "organizational." Pp. 303-311.
(b) The trial court's mistaken construction of the word "organize" was not harmless error; the
circumstances are such as to call for application of the rule which requires a verdict to be set
aside where it is supportable on one ground, but not another, and it is impossible to tell which
ground the jury selected. Pp. 311-312.
2. The Smith Act does not prohibit advocacy and teaching of forcible overthrow of the
Government as an abstract principle, divorced from any effort to instigate action to that end;
the trial court's charge to the jury furnished wholly inadequate guidance on this central point in
the case; and the conviction cannot be allowed to stand. Dennis v. United States, 341 U.S. 494 ,
distinguished. Pp. 312-327.
81
3. The evidence against five of the petitioners is so clearly insufficient that their acquittal should
be ordered, but that as to the others is such as not to justify closing the way to their retrial. Pp.
327-334.
4. Determinations favorable to petitioner Schneiderman made by this Court in Schneiderman v.
United States, 320 U.S. 118 , a denaturalization proceeding in which he was the prevailing party,
are not conclusive in this proceeding under the doctrine of collateral estoppel, and he is not
entitled to a judgment of acquittal on that ground. Federal Trade Commission v. Cement
Institute, 333 U.S. 683 . Pp. 335-338.
225 F.2d 146, reversed and remanded.
[ Footnote * ] Together with No. 7, Schneiderman v. United States, and No. 8, Richmond et al. v. United
States, also on certiorari to the same Court.
Ben Margolis argued the cause for petitioners in No. 6. With him on the brief were Norman Leonard,
Alexander H. Schullman, A. L. Wirin and Leo Branton, Jr.
Robert W. Kenny argued the cause for petitioner in No. 7. With him on the brief was Benjamin Dreyfus.
[354 U.S. 298, 300]
Augustin Donovan argued the cause and filed a brief for petitioners in No. 8.
Philip R. Monahan argued the cause for the United States. With him on the brief were Solicitor General
Rankin, Assistant Attorney General Tompkins and Harold D. Koffsky.
Briefs of amici curiae urging reversal were filed by David I. Shapiro, Osmond K. Fraenkel and Fred
Okrand, for the American Civil Liberties Union in No. 6, and Thomas D. McBride, for Kuzma et al., and
Telford Taylor, for Hall, in Nos. 6, 7 and 8.
MR. JUSTICE HARLAN delivered the opinion of the Court.
We brought these cases here to consider certain questions arising under the Smith Act which have not
heretofore been passed upon by this Court, and otherwise to review the convictions of these petitioners
for conspiracy to violate that Act. Among other things, the convictions are claimed to rest upon an
application of the Smith Act which is hostile to the principles upon which its constitutionality was upheld
in Dennis v. United States, 341 U.S. 494 .
These 14 petitioners stand convicted, after a jury trial in the United States District Court for the
Southern District of California, upon a single count indictment charging them with conspiring (1) to
advocate and teach the duty and necessity of overthrowing the Government of the United States by
force and violence, and (2) to organize, as the Communist Party of the United States, a society of
persons who so advocate and teach, all with the intent of causing the overthrow of the Government by
force and violence as speedily as circumstances would permit. Act of June 28, 1940, 2 (a) (1) and (3), 54
[354 U.S. 298, 301] Stat. 670, 671, 18 U.S.C. 371, 2385. 1 The conspiracy is alleged to have originated in
1940 and continued down to the date of the indictment in 1951. The indictment charged that in carrying
out the conspiracy the defendants [354 U.S. 298, 302] and their co-conspirators would (a) become
members and officers of the Communist Party, with knowledge of its unlawful purposes, and assume
leadership in carrying out its policies and activities; (b) cause to be organized units of the Party in
82
California and elsewhere; (c) write and publish, in the "Daily Worker" and other Party organs, articles on
the proscribed advocacy and teaching; (d) conduct schools for the indoctrination of Party members in
such advocacy and teaching, and (e) recruit new Party members, particularly from among persons
employed in the key industries of the nation. Twenty-three overt acts in furtherance of the conspiracy
were alleged.
Upon conviction each of the petitioners was sentenced to five years' imprisonment and a fine of
$10,000. The [354 U.S. 298, 303] Court of Appeals affirmed. 225 F.2d 146. We granted certiorari for the
reasons already indicated. 350 U.S. 860 .
In the view we take of this case, it is necessary for us to consider only the following of petitioners'
contentions: (1) that the term "organize" as used in the Smith Act was erroneously construed by the two
lower courts; (2) that the trial court's instructions to the jury erroneously excluded from the case the
issue of "incitement to action"; (3) that the evidence was so insufficient as to require this Court to direct
the acquittal of these petitioners; and (4) that petitioner Schneiderman's conviction was precluded by
this Court's judgment in Schneiderman v. United States, 320 U.S. 118 , under the doctrine of collateral
estoppel. 2 For reasons given hereafter, we conclude that these convictions must be reversed and the
case remanded to the District Court with instructions to enter judgments of acquittal as to certain of the
petitioners, and to grant a new trial as to the rest.
I. The Term "Organize."
One object of the conspiracy charged was to violate the third paragraph of 18 U.S.C. 2385, which
provides:
"Whoever organizes or helps or attempts to organize any society, group, or assembly of persons
who teach, advocate, or encourage the overthrow or destruction of any [government in the
United States] by force or violence . . . [s]hall be fined not more than $10,000 or imprisoned not
more than ten years, or both . . . ." 3 [354 U.S. 298, 304]
Petitioners claim that "organize" means to "establish," "found," or "bring into existence," and that in this
sense the Communist Party 4 was organized by 1945 at the latest. 5 On this basis petitioners contend
that this part of the indictment, returned in 1951, was barred by the three-year statute of limitations. 6
The Government, on the other hand, says that "organize" connotes a continuing process which goes on
throughout the life of an organization, and that, in the words of the trial court's instructions to the jury,
the term includes such things as "the recruiting of new members and the forming of new units, and the
regrouping or expansion of existing clubs, classes and other units of any society, party, group or other
organization." The two courts below accepted the Government's position. We think, however, that
petitioners' position must prevail, upon principles stated by Chief Justice Marshall more than a century
ago in United States v. Wiltberger, 5 Wheat. 76, 95-96, as follows:
"The rule that penal laws are to be construed strictly, is perhaps not much less old than
construction itself. It is founded on the tenderness of the law for the rights of individuals; and on
the plain principle that the power of punishment is vested in the legislative, not in the judicial
department. It is the legislature, not the Court, which is to define a crime, and ordain its
punishment. [354 U.S. 298, 305]
"It is said, that notwithstanding this rule, the intention of the law maker must govern in the
construction of penal, as well as other statutes. This is true. But this is not a new independent
rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that
though penal laws are to be construed strictly, they are not to be construed so strictly as to
defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow
the words of the statute to the exclusion of cases which those words, in their ordinary
83
acceptation, or in that sense in which the legislature has obviously used them, would
comprehend. The intention of the legislature is to be collected from the words they employ.
Where there is no ambiguity in the words, there is no room for construction. The case must be a
strong one indeed, which would justify a Court in departing from the plain meaning of words,
especially in a penal act, in search of an intention which the words themselves did not suggest.
To determine that a case is within the intention of a statute, its language must authorise us to
say so. It would be dangerous, indeed, to carry the principle, that a case which is within the
reason or mischief of a statute, is within its provisions, so far as to punish a crime not
enumerated in the statute, because it is of equal atrocity, or of kindred character, with those
which are enumerated. If this principle has ever been recognized in expounding criminal law, it
has been in cases of considerable irritation, which it would be unsafe to consider as precedents
forming a general rule for other cases."
The statute does not define what is meant by "organize." Dictionary definitions are of little help, for, as
those offered us sufficiently show, the term is susceptible [354 U.S. 298, 306] of both meanings
attributed to it by the parties here. 7 The fact that the Communist Party comprises various components
and activities, in relation to which some of the petitioners bore the title of "Organizer," does not
advance us towards a solution of the problem. The charge here is that petitioners conspired to organize
the Communist Party, and, unless "organize" embraces the continuing concept contended for by the
Government, the establishing of new units within the Party and similar activities, following the Party's
initial formation in 1945, have no independent significance or vitality so far as the "organizing" charge is
involved. Nor are we here concerned with the quality of petitioners' activities as such, that is, whether
particular activities may properly be categorized as "organizational." Rather, the issue is whether the
term "organize" as used in this statute is limited by temporal concepts. Stated most simply, the problem
is to choose between two possible answers to the question: when was the Communist Party
"organized"? Petitioners contend that the only natural answer to the question is the formation date - in
this case, 1945. The Government would have us answer the question by saying that the Party today is
still not completely "organized"; [354 U.S. 298, 307] that "organizing" is a continuing process that does
not end until the entity is dissolved.
The legislative history of the Smith Act is no more revealing as to what Congress meant by "organize"
than is the statute itself. The Government urges that "organize" should be given a broad meaning since
acceptance of the term in its narrow sense would require attributing to Congress the intent that this
provision of the statute should not apply to the Communist Party as it then existed. The argument is that
since the Communist Party as it then existed had been born in 1919 and the Smith Act was not passed
until 1940, the use of "organize" in its narrow sense would have meant that these provisions of the
statute would never have reached the act of organizing the Communist Party, except for the fortuitous
rebirth of the Party in 1945 - an occurrence which, of course, could not have been foreseen in 1940.
This, says the Government, could hardly have been the congressional purpose since the Smith Act as a
whole was particularly aimed at the Communist Party, and its "organizing" provisions were especially
directed at the leaders of the movement.
We find this argument unpersuasive. While the legislative history of the Smith Act does show that
concern about communism was a strong factor leading to this legislation, it also reveals that the statute,
which was patterned on state anti-sedition laws directed not against Communists but against anarchists
and syndicalists, was aimed equally at all groups falling within its scope. 8 [354 U.S. 298, 308] More
important, there is no evidence whatever to support the thesis that the organizing provision of the
statute was written with particular reference to the Communist Party. Indeed, the congressional
84
hearings indicate that it was the "advocating and teaching" provision of the Act, rather than the
"organizing" provision, which was especially thought to reach Communist activities. 9
Nor do there appear to be any other reasons for ascribing to "organize" the Government's broad
interpretation. While it is understandable that Congress should have wished to supplement the general
provisions of the Smith Act by a special provision directed at the activities of those responsible for
creating a new organization of the proscribed type, such as was the situation involved in the Dennis
case, we find nothing which suggests that the "organizing" provision was intended to reach beyond this,
that is, to embrace the activities of those concerned with carrying on the affairs of an already existing
organization. Such activities were already amply covered by other provisions of the Act, such as the
"membership" clause, 10 and the basic prohibition of "advocacy" in conjunction with the conspiracy
provision, and there is thus no need to stretch the "organizing" provision to fill any gaps in the statute.
Moreover, it is difficult to find any considerations, comparable to those relating to persons responsible
for creating a new organization, which would have led the Congress to single out for special treatment
those persons occupying so-called organizational positions in an existing organization, especially when
this same section of the statute proscribes membership in such an organization without drawing any
distinction between those holding executive office and others. [354 U.S. 298, 309]
On the other hand, we also find unpersuasive petitioners' argument as to the intent of Congress. In
support of the narrower meaning of "organize," they argue that the Smith Act was patterned after the
California Criminal Syndicalism Act; 11 that the California courts have consistently taken "organize" in
that Act in its narrow sense; 12 and that under such cases as Willis v. Eastern Trust & Banking Co., 169
U.S. 295, 304 , 309, and Joines v. Patterson, 274 U.S. 544, 549 , it should be presumed that Congress in
adopting the wording of the California Act intended "organize" to have the same meaning as that given
it by the California courts. As the hearings on the Smith Act show, however, its particular prototype was
the New York Criminal Anarchy Act, 13 not the California statute, and the "organizing" provisions of the
New York Act have never been construed by any court. Moreover, to the extent that the language of the
California statute, which itself was patterned on the earlier New York legislation, might be significant,
we think that little weight can be given to these California decisions. The "general rule that adoption of
the wording of a statute from another legislative jurisdiction carries with it the previous judicial
interpretations of the wording . . . is a presumption of legislative intention . . . which varies in strength
with the similarity of the language, the established character of the decisions in the jurisdiction from
which the language was adopted and the presence or lack of other indicia of intention." Carolene
Products Co. v. United States, [354 U.S. 298, 310] 323 U.S. 18, 26 . Here, the three California cases
relied on by petitioners were all decisions of lower courts, and, in the absence of anything in the
legislative history indicating that they were called to its attention, we should not assume that Congress
was aware of them.
We are thus left to determine for ourselves the meaning of this provision of the Smith Act, without any
revealing guides as to the intent of Congress. In these circumstances we should follow the familiar rule
that criminal statutes are to be strictly construed and give to "organize" its narrow meaning, that is, that
the word refers only to acts entering into the creation of a new organization, and not to acts thereafter
performed in carrying on its activities, even though such acts may loosely be termed "organizational."
See United States v. Wiltberger, supra; United States v. Lacher, 134 U.S. 624, 628 ; United States v.
Gradwell, 243 U.S. 476, 485 ; Fasulo v. United States, 272 U.S. 620, 628 . Such indeed is the normal
usage of the word "organize," 14 and until the decisions below in this case the federal trial courts in
which the question had arisen uniformly gave it that meaning. See United States v. Flynn, unreported
(D.C. S. D. N. Y.), No. C. 137-37, aff'd, 216 F.2d 354, 358; United States v. Mesarosh, 116 F. Supp. 345,
85
aff'd, 223 F.2d 449, 465 (dissenting opinion of Hastie, J.); see also United States v. Dennis, unreported
(D.C. S. D. N. Y.), No. C. 128-87, aff'd, 183 F.2d 201, 341 U.S. 494 . 15 [354 U.S. 298, 311] We too think
this statute should be read "according to the natural and obvious import of the language, without
resorting to subtle and forced construction for the purpose of either limiting or extending its operation."
United States v. Temple, 105 U.S. 97, 99 .
The Government contends that even if the trial court was mistaken in its construction of the statute, the
error was harmless because the conspiracy charged embraced both "advocacy" of violent overthrow
and "organizing" the Communist Party, and the jury was instructed that in order to convict it must find a
conspiracy extending to both objectives. Hence, the argument is, the jury must in any event be taken to
have found petitioners guilty of conspiring to advocate, and the convictions are supportable on that
basis alone. We cannot accept this proposition for a number of reasons. The portions of the trial court's
instructions relied on by the Government are not sufficiently clear or specific to warrant our drawing the
inference that the jury understood it must find an agreement extending to both "advocacy" and
"organizing" in order to convict. 16 Further, in order to convict, the jury was required, as the court
charged, to find an overt act which was "knowingly done in furtherance of an object or purpose of the
conspiracy charged in the indictment," and we have no way of knowing whether the overt act found by
the jury was one which it believed to be in furtherance [354 U.S. 298, 312] of the "advocacy" rather
than the "organizing" objective of the alleged conspiracy. The character of most of the overt acts alleged
associates them as readily with "organizing" as with "advocacy." 17 In these circumstances we think the
proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is
supportable on one ground, but not on another, and it is impossible to tell which ground the jury
selected. Stromberg v. California, 283 U.S. 359, 367 -368; Williams v. North Carolina, 317 U.S. 287, 291 292; Cramer v. United States, 325 U.S. 1, 36 , n. 45.
We conclude, therefore, that since the Communist Party came into being in 1945, and the indictment
was not returned until 1951, the three-year statute of limitations had run on the "organizing" charge,
and required the withdrawal of that part of the indictment from the jury's consideration. Samuel v.
United States, 169 F.2d 787, 798. See also Haupt v. United States, 330 U.S. 631, 641 , n. 1; Stromberg v.
California, supra, at 368.
II. Instructions to the Jury.
Petitioners contend that the instructions to the jury were fatally defective in that the trial court refused
to charge that, in order to convict, the jury must find that the advocacy which the defendants conspired
to promote was of a kind calculated to "incite" persons to action for the forcible overthrow of the
Government. It is argued that advocacy of forcible overthrow as mere abstract doctrine is within the
free speech protection of the First [354 U.S. 298, 313] Amendment; that the Smith Act, consistently
with that constitutional provision, must be taken as proscribing only the sort of advocacy which incites
to illegal action; and that the trial court's charge, by permitting conviction for mere advocacy, unrelated
to its tendency to produce forcible action, resulted in an unconstitutional application of the Smith Act.
The Government, which at the trial also requested the court to charge in terms of "incitement," now
takes the position, however, that the true constitutional dividing line is not between inciting and
abstract advocacy of forcible overthrow, but rather between advocacy as such, irrespective of its inciting
qualities, and the mere discussion or exposition of violent overthrow as an abstract theory.
We print in the margin the pertinent parts of the trial court's instructions. 18 After telling the jury that it
could [354 U.S. 298, 314] not convict the defendants for holding or expressing mere opinions, beliefs,
86
or predictions relating to violent overthrow, the trial court defined the content of the proscribed
advocacy or teaching in the following terms, which are crucial here:
"Any advocacy or teaching which does not include the urging of force and violence as the means
of overthrowing and destroying the Government of the United States is not within the issue of
the indictment here and can constitute no basis for any finding against the defendants.
"The kind of advocacy and teaching which is charged and upon which your verdict must be [354
U.S. 298, 315] reached is not merely a desirability but a necessity that the Government of the
United States be overthrown and destroyed by force and violence and not merely a propriety
but a duty to overthrow and destroy the Government of the United States by force and
violence."
There can be no doubt from the record that in so instructing the jury the court regarded as immaterial,
and intended to withdraw from the jury's consideration, any issue as to the character of the advocacy in
terms of its capacity to stir listeners to forcible action. Both the petitioners and the Government
submitted proposed instructions which would have required the jury to find [354 U.S. 298, 316] that
the proscribed advocacy was not of a mere abstract doctrine of forcible overthrow, but of action to that
end, by the use of language reasonably and ordinarily calculated to incite persons to such action. 19 The
trial court rejected these proposed instructions on the ground that any necessity for giving them which
may have existed at [354 U.S. 298, 317] the time the Dennis case was tried 20 was removed by this
Court's subsequent decision in that case. The court made it clear in colloquy with counsel that in its view
the illegal advocacy was made out simply by showing that what was said dealt with forcible overthrow
and that it was uttered with a specific intent to accomplish that purpose, 21 insisting that all such
advocacy was punishable [354 U.S. 298, 318] "whether it is language of incitement or not." The Court
of Appeals affirmed on a different theory, as we shall see later on.
We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible
overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as
such advocacy or teaching is engaged in with evil intent. We hold that it does not.
The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful
action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v.
Washington, 236 U.S. 273 , and Schenck v. United States, 249 U.S. 47 . 22 This distinction was heavily
underscored in Gitlow v. New York, 268 U.S. 652 , in which the statute involved 23 was nearly identical
with the one now before us, and where the Court, despite the narrow view there taken of the First
Amendment, 24 said:
"The statute does not penalize the utterance or publication of abstract `doctrine' or academic
discussion having no quality of incitement to any concrete action. . . . It is not the abstract
`doctrine' of overthrowing organized government by unlawful means which is denounced by the
statute, but the advocacy of action for the accomplishment of that purpose. . . . This [Manifesto]
. . . is [in] the language of direct incitement. . . . That the jury were warranted in finding that the
Manifesto advocated not merely the abstract doctrine of overthrowing organized government
by force, violence and [354 U.S. 298, 319] unlawful means, but action to that end, is clear. . . .
That utterances inciting to the overthrow of organized government by unlawful means, present
a sufficient danger of substantive evil to bring their punishment within the range of legislative
discretion, is clear." Id., at 664-669.
We need not, however, decide the issue before us in terms of constitutional compulsion, for our first
duty is to construe this statute. In doing so we should not assume that Congress chose to disregard a
87
constitutional danger zone so clearly marked, or that it used the words "advocate" and "teach" in their
ordinary dictionary meanings when they had already been construed as terms of art carrying a special
and limited connotation. See Willis v. Eastern Trust & Banking Co., supra; Joines v. Patterson, supra;
James v. Appel, 192 U.S. 129, 135 . The Gitlow case and the New York Criminal Anarchy Act there
involved, which furnished the prototype for the Smith Act, were both known and adverted to by
Congress in the course of the legislative proceedings. 25 Cf. Carolene Products Co. v. United States,
supra. The legislative history of the Smith Act and related bills shows beyond all question that Congress
was aware of the distinction between the advocacy or teaching of abstract doctrine and the advocacy or
teaching of action, and that it did not intend to disregard it. 26 The statute was aimed [354 U.S. 298,
320] at the advocacy and teaching of concrete action for the forcible overthrow of the Government,
and not of principles divorced from action.
The Government's reliance on this Court's decision in Dennis is misplaced. The jury instructions which
were refused here were given there, 27 and were referred to by this Court as requiring "the jury to find
the facts essential to establish the substantive crime." 341 U.S., at 512 (emphasis added). It is true that
at one point in the late Chief Justice's opinion it is stated that the Smith Act "is directed at advocacy, not
discussion," id., at 502, but it is clear that the reference was to advocacy of action, not ideas, for in the
very next sentence the opinion emphasizes that the jury was properly instructed that there could be no
conviction for "advocacy in the realm of ideas." The two concurring opinions in that case likewise
emphasize the distinction with which we are concerned. Id., at 518, 534, 536, 545, 546, 547, 571, 572.
In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of
action to that end, the District Court appears to have been led astray by the holding in Dennis that
advocacy of violent action to be taken at some future time was enough. It seems to have considered
that, since "inciting" speech is usually thought of as something calculated to induce immediate action,
and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy,
irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a
specific intent to accomplish overthrow. In other words, the District Court apparently thought that
Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of
action. 28 [354 U.S. 298, 321]
This misconceives the situation confronting the Court in Dennis and what was held there. Although the
jury's verdict, interpreted in light of the trial court's instructions, 29 did not justify the conclusion that
the defendants' advocacy was directed at, or created any danger of, immediate overthrow, it did
establish that the advocacy was aimed at building up a seditious group and maintaining it in readiness
for action at a propitious time. In such circumstances, said Chief Justice Vinson, the Government need
not hold its hand "until the putsch is about to be executed, the plans have been laid and the signal is
awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its
members and to commit them to a course whereby they will strike when the leaders feel the
circumstances permit, action by the Government is required." 341 U.S., at 509 . The essence of the
Dennis holding was that indoctrination of a group in preparation for future violent action, as well as
exhortation to immediate action, by advocacy found to be directed to "action for the accomplishment"
of forcible overthrow, to violence as "a rule-or principle of action," and employing "language of
incitement," id., at 511-512, is not constitutionally protected when the group is of sufficient size and
cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to
justify apprehension that action will occur. This is quite a different thing from the view of the District
Court here that mere doctrinal justification of forcible overthrow, if engaged in with the intent to
accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though
88
uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete
action to be regarded [354 U.S. 298, 322] as the kind of indoctrination preparatory to action which was
condemned in Dennis. As one of the concurring opinions in Dennis put it: "Throughout our decisions
there has recurred a distinction between the statement of an idea which may prompt its hearers to take
unlawful action, and advocacy that such action be taken." Id., at 545. There is nothing in Dennis which
makes that historic distinction obsolete.
The Court of Appeals took a different view from that of the District Court. While seemingly recognizing
that the proscribed advocacy must be associated in some way with action, and that the instructions
given the jury here fell short in that respect, it considered that the instructions which the trial court
refused were unnecessary in this instance because establishment of the conspiracy, here charged under
the general conspiracy statute, required proof of an overt act, whereas in Dennis, where the conspiracy
was charged under the Smith Act, no overt act was required. 30 In other words, the Court of Appeals
thought that the requirement of proving an overt act was an adequate substitute for the linking of the
advocacy to action which would otherwise have been necessary. 31 This, of course, is a mistaken notion,
for the [354 U.S. 298, 323] overt act will not necessarily evidence the character of the advocacy
engaged in, nor, indeed, is an agreement to advocate forcible overthrow itself an unlawful conspiracy if
it does not call for advocacy of action. The statement in Dennis that "it is the existence of the conspiracy
which creates the danger," 341 U.S., at 511 , does not support the Court of Appeals. Bearing in mind
that Dennis, like all other Smith Act conspiracy cases thus far, including this one, involved advocacy
which had already taken place, and not advocacy still to occur, it is clear that in context the phrase just
quoted referred to more than the basic agreement to advocate. "The mere fact that [during the
indictment period] petitioners' activities did not result in an attempt to overthrow the Government by
force and violence is of course no answer to the fact that there was a group that was ready to make the
attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined
members subject to call when the leaders, these petitioners, felt that [354 U.S. 298, 324] the time had
come for action, coupled with . . . world conditions, . . . disposes of the contention that a conspiracy to
advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it
comprises only the preparation. It is the existence of the conspiracy which creates the danger. . . . If the
ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is
added." 341 U.S., at 510 -511 (emphasis supplied). The reference of the term "conspiracy," in context,
was to an agreement to accomplish overthrow at some future time, implicit in the jury's findings under
the instructions given, rather than to an agreement to speak. Dennis was thus not concerned with a
conspiracy to engage at some future time in seditious advocacy, but rather with a conspiracy to
advocate presently the taking of forcible action in the future. It was action, not advocacy, that was to be
postponed until "circumstances" would "permit." We intimate no views as to whether a conspiracy to
engage in advocacy in the future, where speech would thus be separated from action by one further
remove, is punishable under the Smith Act.
We think, thus, that both of the lower courts here misconceived Dennis.
In light of the foregoing we are unable to regard the District Court's charge upon this aspect of the case
as adequate. The jury was never told that the Smith Act does not denounce advocacy in the sense of
preaching abstractly the forcible overthrow of the Government. We think that the trial court's
statement that the proscribed advocacy must include the "urging," "necessity," and "duty" of forcible
overthrow, and not merely its "desirability" and "propriety," may not be regarded as a sufficient
substitute for charging that the Smith Act reaches only advocacy of action for the overthrow of
government by force and violence. The essential distinction [354 U.S. 298, 325] is that those to whom
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the advocacy is addressed must be urged to do something, now or in the future, rather than merely to
believe in something. At best the expressions used by the trial court were equivocal, since in the
absence of any instructions differentiating advocacy of abstract doctrine from advocacy of action, they
were as consistent with the former as they were with the latter. Nor do we regard their ambiguity as
lessened by what the trial court had to say as to the right of the defendants to announce their beliefs as
to the inevitability of violent revolution, or to advocate other unpopular opinions. Especially when it is
unmistakable that the court did not consider the urging of action for forcible overthrow as being a
necessary element of the proscribed advocacy, but rather considered the crucial question to be whether
the advocacy was uttered with a specific intent to accomplish such overthrow, 32 we would not be
warranted in assuming that the jury drew from these instructions more than the court itself intended
them to convey.
Nor can we accept the Government's argument that the District Court was justified in not charging more
than it did because the refused instructions proposed by both sides specified that the advocacy must be
of a character reasonably calculated to "incite" to forcible overthrow, a term which, it is now argued,
might have conveyed to the jury an implication that the advocacy must be of immediate action.
Granting that some qualification of the proposed instructions would have been permissible to dispel
such an implication, and that it was not necessary even that the trial court should have employed the
particular term "incite," it was nevertheless incumbent on the court to make clear in some fashion that
the advocacy must be of action and not merely abstract doctrine. The instructions given not only do not
employ the word [354 U.S. 298, 326] "incite," but also avoid the use of such terms and phrases as
"action," "call for action," "as a rule or principle of action," and so on, all of which were offered in one
form or another by both the petitioners and the Government. 33
What we find lacking in the instructions here is illustrated by contrasting them with the instructions
given to the Dennis jury, upon which this Court's sustaining of the convictions in that case was
bottomed. There the trial court charged:
"In further construction and interpretation of the statute [the Smith Act] I charge you that it is
not the abstract doctrine of overthrowing or destroying organized government by unlawful
means which is denounced by this law, but the teaching and advocacy of action for the
accomplishment of that purpose, by language reasonably and ordinarily calculated to incite
persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the
crime charged unless you are satisfied beyond a reasonable doubt that they conspired . . . to
advocate and teach the duty and necessity of overthrowing or destroying the Government of
the United States by force and violence, with the intent that such teaching and advocacy be of a
rule or principle of action and by language reasonably and ordinarily calculated to incite persons
to such action, all with the intent to cause the overthrow . . . as speedily as circumstances would
permit." (Emphasis added.) 9 F. R. D. 367, 391; and see 341 U.S., at 511 -512.
We recognize that distinctions between advocacy or teaching of abstract doctrines, with evil intent, and
that which is directed to stirring people to action, are often subtle and difficult to grasp, for in a broad
sense, as Mr. Justice Holmes said in his dissenting opinion in Gitlow, [354 U.S. 298, 327] supra, 268 U.S.,
at 673 : "Every idea is an incitement." But the very subtlety of these distinctions required the most clear
and explicit instructions with reference to them, for they concerned an issue which went to the very
heart of the charges against these petitioners. The need for precise and understandable instructions on
this issue is further emphasized by the equivocal character of the evidence in this record, with which we
deal in Part III of this opinion. Instances of speech that could be considered to amount to "advocacy of
action" are so few and far between as to be almost completely overshadowed by the hundreds of
90
instances in the record in which overthrow, if mentioned at all, occurs in the course of doctrinal
disputation so remote from action as to be almost wholly lacking in probative value. Vague references to
"revolutionary" or "militant" action of an unspecified character, which are found in the evidence, might
in addition be given too great weight by the jury in the absence of more precise instructions. Particularly
in light of this record, we must regard the trial court's charge in this respect as furnishing wholly
inadequate guidance to the jury on this central point in the case. We cannot allow a conviction to stand
on such "an equivocal direction to the jury on a basic issue." Bollenbach v. United States, 326 U.S. 607,
613 .
III. The Evidence.
The determinations already made require a reversal of these convictions. Nevertheless, in the exercise
of our power under 28 U.S.C. 2106 to "direct the entry of such appropriate judgment . . . as may be just
under the circumstances," we have conceived it to be our duty to scrutinize this lengthy record 34 with
care, in order to determine whether the way should be left open for a new trial of all or some of these
petitioners. Such a judgment, we [354 U.S. 298, 328] think, should, on the one hand, foreclose further
proceedings against those of the petitioners as to whom the evidence in this record would be palpably
insufficient upon a new trial, and should, on the other hand, leave the Government free to retry the
other petitioners under proper legal standards, especially since it is by no means clear that certain
aspects of the evidence against them could not have been clarified to the advantage of the Government
had it not been under a misapprehension as to the burden cast upon it by the Smith Act. In judging the
record by these criteria we do not apply to these cases the rigorous standards of review which, for
example, the Court of Appeals would be required to apply in reviewing the evidence if any of these
petitioners are convicted upon a retrial. Compare Dennis v. United States, supra, at 516. Rather, we
have scrutinized the record to see whether there are individuals as to whom acquittal is unequivocally
demanded. We do this because it is in general too hypothetical and abstract an inquiry to try to judge
whether the evidence would have been inadequate had the cases been submitted under a proper
charge, and had the Government realized that all its evidence must be channeled into the "advocacy"
rather than the "organizing" charge. We think we may do this by drawing on our power under 28 U.S.C.
2106, because under that statute we would no doubt be justified in refusing to order acquittal even
where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in
the alternative for a new trial as well as for acquittal. See Bryan v. United States, 338 U.S. 552 .
On this basis we have concluded that the evidence against petitioners Connelly, Kusnitz, Richmond,
Spector, and Steinberg is so clearly insufficient that their acquittal should be ordered, but that as to
petitioners Carlson, Dobbs, Fox, Healey (Mrs. Connelly), Lambert, Lima, Schneiderman, Stack, and Yates,
we would not be justified [354 U.S. 298, 329] in closing the way to their retrial. We proceed to the
reasons for these conclusions.
At the outset, in view of the conclusions reached in Part I of this opinion, we must put aside as against
all petitioners the evidence relating to the "organizing" aspect of the alleged conspiracy, except insofar
as it bears upon the "advocacy" charge. That, indeed, dilutes in a substantial way a large part of the
evidence, for the record unmistakably indicates that the Government relied heavily on its "organizing"
charge. Two further general observations should also be made about the evidence as to the "advocacy"
charge. The first is that both the Government and the trial court evidently proceeded on the theory that
advocacy of abstract doctrine was enough to offend the Smith Act, whereas, as we have held, it is only
advocacy of forcible action that is proscribed. The second observation is that both the record and the
Government's brief in this Court make it clear that the Government's thesis was that the Communist
Party, or at least the Communist Party of California, constituted the conspiratorial group, and that
membership in the conspiracy could therefore be proved by showing that the individual petitioners
91
were actively identified with the Party's affairs and thus inferentially parties to its tenets. This might
have been well enough towards making out the Government's case if advocacy of the abstract doctrine
of forcible overthrow satisfied the Smith Act, for we would at least have little difficulty in saying on this
record that a jury could justifiably conclude that such was one of the tenets of the Communist Party; and
there was no dispute as to petitioners' active identification with Party affairs. But when it comes to Party
advocacy or teaching in the sense of a call to forcible action at some future time we cannot but regard
this record as strikingly deficient. At best this voluminous record shows but a half dozen or so scattered
incidents which, even under the loosest [354 U.S. 298, 330] standards, could be deemed to show such
advocacy. Most of these were not connected with any of the petitioners, or occurred many years before
the period covered by the indictment. We are unable to regard this sporadic showing as sufficient to
justify viewing the Communist Party as the nexus between these petitioners and the conspiracy charged.
We need scarcely say that however much one may abhor even the abstract preaching of forcible
overthrow of government, or believe that forcible overthrow is the ultimate purpose to which the
Communist Party is dedicated, it is upon the evidence in the record that the petitioners must be judged
in this case.
We must, then, look elsewhere than to the evidence concerning the Communist Party as such for the
existence of the conspiracy to advocate charged in the indictment. As to the petitioners Connelly,
Kusnitz, Richmond, Spector, and Steinberg we find no adequate evidence in the record which would
permit a jury to find that they were members of such a conspiracy. For all purposes relevant here, the
sole evidence as to them was that they had long been members, officers or functionaries of the
Communist Party of California; and that standing alone, as Congress has enacted in 4 (f) of the Internal
Security Act of 1950, 35 makes out no case against them. So far as this record shows, none of them has
engaged in or been associated with any but what appear to have been wholly lawful activities, 36 or has
ever made a single remark or [354 U.S. 298, 331] been present when someone else made a remark,
which would tend to prove the charges against them. Connelly and Richmond were, to be sure, the Los
Angeles and Executive Editors, respectively, of the Daily People's World, the West Coast Party organ, but
we can find nothing in the material introduced into evidence from that newspaper which advances the
Government's case.
Moreover, apart from the inadequacy of the evidence to show, at best, more than the abstract advocacy
and teaching of forcible overthrow by the Party, it is difficult to perceive how the requisite specific
intent to accomplish such overthrow could be deemed proved by a showing of mere membership or the
holding of office in the Communist Party. We therefore think that as to these petitioners the evidence
was entirely too meagre to justify putting them to a new trial, and that their acquittal should be
ordered.
As to the nine remaining petitioners, we consider that a different conclusion should be reached. There
was testimony from the witness Foard, and other evidence, tying Fox, Healey, Lambert, Lima,
Schneiderman, Stack, and Yates to Party classes conducted in the San Francisco area during the year
1946, where there occurred what might be considered to be the systematic teaching and advocacy of
illegal action which is condemned by the statute. It might be found that one of the purposes of such
classes was to develop in the members of the group a readiness to engage at the crucial time, perhaps
during war or during attack upon the United States from without, in such activities as sabotage and
street fighting, in order to divert and diffuse the resistance of the authorities and if possible to seize
local vantage points. There was also testimony as to activities in the Los Angeles area, during the period
covered by the indictment, which might be considered to amount to "advocacy of action," and with
which petitioners Carlson and Dobbs were linked. From the [354 U.S. 298, 332] testimony of the
92
witness Scarletto, it might be found that individuals considered to be particularly trustworthy were
taken into an "underground" apparatus and there instructed in tasks which would be useful when the
time for violent action arrived. Scarletto was surreptitiously indoctrinated in methods, as he said, of
moving "masses of people in time of crisis." It might be found, under all the circumstances, that the
purpose of this teaching was to prepare the members of the underground apparatus to engage in, to
facilitate, and to cooperate with violent action directed against government when the time was ripe. In
short, while the record contains evidence of little more than a general program of educational activity
by the Communist Party which included advocacy of violence as a theoretical matter, we are not
prepared to say, at this stage of the case, that it would be impossible for a jury, resolving all conflicts in
favor of the Government and giving the evidence as to these San Francisco and Los Angeles episodes its
utmost sweep, to find that advocacy of action was also engaged in when the group involved was
thought particularly trustworthy, dedicated, and suited for violent tasks.
Nor can we say that the evidence linking these nine petitioners to that sort of advocacy, with the
requisite specific intent, is so tenuous as not to justify their retrial under proper legal standards. Fox,
Healey, Lambert, Lima, Schneiderman, Stack, and Yates, as members of the State and San Francisco
County Boards, were shown to have been closely associated with Ida Rothstein, the principal teacher of
the San Francisco classes, who also during this same period arranged in a devious and conspiratorial
manner for the holding of Board meetings at the home of the witness Honig, which were attended by
these petitioners. It was also shown that from time to time instructions emanated from the Boards or
their members to instructors of groups at lower levels. And while none [354 U.S. 298, 333] of the
written instructions produced at the trial were invidious in themselves, it might be inferred that
additional instructions were given which were not reduced to writing. Similarly, there was evidence of
close association between petitioners Carlson and Dobbs and associates or superiors of the witness
Scarletto, which might be taken as indicating that these two petitioners had knowledge of the apparatus
in which Scarletto was active. And finally, all of these nine petitioners were shown either to have made
statements themselves, or apparently approved statements made in their presence, which a jury might
take as some evidence of their participation with the requisite intent in a conspiracy to advocate illegal
action.
As to these nine petitioners, then, we shall not order an acquittal.
Before leaving the evidence, we consider it advisable, in order to avoid possible misapprehension upon
a new trial, to deal briefly with petitioners' contention that the evidence was insufficient to prove the
overt act required for conviction of conspiracy under 18 U.S.C. 371. Only 2 of the 11 overt acts alleged in
the indictment to have occurred within the period of the statute of limitations were proved. Each was a
public meeting held under Party auspices at which speeches were made by one or more of the
petitioners extolling leaders of the Soviet Union and criticizing various aspects of the foreign policy of
the United States. At one of the meetings an appeal for funds was made. Petitioners contend that these
meetings do not satisfy the requirement of the statute that there be shown an act done by one of the
conspirators "to effect the object of the conspiracy." The Government concedes that nothing unlawful
was shown to have been said or done at these meetings, but contends that these occurrences
nonetheless sufficed as overt acts under the jury's findings. [354 U.S. 298, 334]
We think the Government's position is correct. It is not necessary that an overt act be the substantive
crime charged in the indictment as the object of the conspiracy. Pierce v. United States, 252 U.S. 239,
244 ; United States v. Rabinowich, 238 U.S. 78, 86 . Nor, indeed, need such an act, taken by itself, even
be criminal in character. Braverman v. United States, 317 U.S. 49 . The function of the overt act in a
93
conspiracy prosecution is simply to manifest "that the conspiracy is at work," Carlson v. United States,
187 F.2d 366, 370, and is neither a project still resting solely in the minds of the conspirators nor a fully
completed operation no longer in existence. The substantive offense here charged as the object of the
conspiracy is speech rather than the specific action that typically constitutes the gravamen of a
substantive criminal offense. Were we to hold that some concrete action leading to the overthrow of
the Government was required, as petitioners appear to suggest, we would have changed the nature of
the offense altogether. No such drastic change in the law can be drawn from Congress' perfunctory
action in 1948 bringing Smith Act cases within 18 U.S.C. 371.
While upon a new trial the overt act must be found, in view of what we have held, to have been in
furtherance of a conspiracy to "advocate," rather than to "organize," we are not prepared to say that
one of the episodes relied on here could not be found to be in furtherance of such an objective, if, under
proper instructions, a jury should find that the Communist Party was a vehicle through which the alleged
conspiracy was promoted. While in view of our acquittal of Steinberg, the first of these episodes, in
which he is alleged to have been involved, may no longer be relied on as an overt act, this would not
affect the second episode, in which petitioner Schneiderman was alleged and proved to have
participated.
For the foregoing reasons we think that the way must be left open for a new trial to the extent
indicated. [354 U.S. 298, 335]
IV. Collateral Estoppel.
There remains to be dealt with petitioner Schneiderman's claim based on the doctrine of collateral
estoppel by judgment. Petitioner urges that in Schneiderman v. United States, 320 U.S. 118 , a
denaturalization proceeding in which he was the prevailing party, this Court made determinations
favorable to him which are conclusive in this proceeding under the doctrine of collateral estoppel.
Specifically, petitioner contends that the Schneiderman decision determined, for purposes of this
proceeding, (1) that the teaching of Marxism-Leninism by the Communist Party was not necessarily the
advocacy of violent overthrow of government; (2) that at least one tenable conclusion to be drawn from
the evidence was that the Communist Party desired to achieve its goal of socialism through peaceful
means; (3) that it could not be presumed, merely because of his membership or officership in the
Communist Party, that Schneiderman adopted an illegal interpretation of Marxist doctrine; and finally,
(4) that absent proof of overt acts indicating that Schneiderman personally adopted a reprehensible
interpretation, the Government had failed to establish its burden by the clear and unequivocal evidence
necessary in a denaturalization case. In the courts below, petitioner urged unsuccessfully that these
determinations were conclusive in this proceeding under the doctrine of collateral estoppel, and
entitled him either to an acquittal or to special instructions to the jury. He makes the same contentions
here.
We are in agreement with petitioner that the doctrine of collateral estoppel is not made inapplicable by
the fact that this is a criminal case, whereas the prior proceedings were civil in character. United States
v. Oppenheimer, 242 U.S. 85 . We agree further that the nonexistence of a fact may be established by a
judgment no less than its [354 U.S. 298, 336] existence; that, in other words, a party may be precluded
under the doctrine of collateral estoppel from attempting a second time to prove a fact that he sought
unsuccessfully to prove in a prior action. Sealfon v. United States, 332 U.S. 575 . Nor need we quarrel
with petitioner's premise that the standard of proof applicable in denaturalization cases is at least no
greater than that applicable in criminal proceedings. Compare Helvering v. Mitchell, 303 U.S. 391 ;
Murphy v. United States, 272 U.S. 630 . We assume, without deciding, that substantially the same
94
standards of proof are applicable in the two types of cases. Cf. Klapprott v. United States, 335 U.S. 601,
612 . Nevertheless, for reasons that will appear, we think that the doctrine of collateral estoppel does
not help petitioner here.
We differ with petitioner, first of all, in his estimate of what the Schneiderman case determined for
purposes of the doctrine of collateral estoppel. That doctrine makes conclusive in subsequent
proceedings only determinations of fact, and mixed fact and law, that were essential to the decision.
Commissioner v. Sunnen, 333 U.S. 591, 601 -602; Tait v. Western Maryland R. Co., 289 U.S. 620 ; The
Evergreens v. Nunan, 141 F.2d 927, 928. As we read the Schneiderman opinion, the only determination
essential to the decision was that Schneiderman had not, prior to 1927, adopted an interpretation of the
Communist Party's teachings featuring "agitation and exhortation calling for present violent action." 320
U.S., at 157 -159. If it be accepted that the holding extended in the alternative to the character of
advocacy engaged in by the Communist Party, then the essential finding was that the Party had not, in
1927, engaged in "agitation and exhortation calling for present violent action." Ibid. The Court in
Schneiderman certainly did not purport to determine what the doctrinal content of "Marxism-Leninism"
might be at all times and in all places. Nor did it establish that the books and pamphlets introduced
against [354 U.S. 298, 337] Schneiderman in that proceeding could not support in any way an inference
of criminality, no matter how or by whom they might thereafter be used. At most, we think, it made the
determinations we have stated, limited to the time and place that were then in issue.
It is therefore apparent that the determinations made by this Court in Schneiderman could not operate
as a complete bar to this proceeding. Wholly aside from the fact that the Court was there concerned
with the state of affairs existing in 1927, whereas we are concerned here with the period 1948-1951, the
issues in the present case are quite different. We are not concerned here with whether petitioner has
engaged in "agitation and exhortation calling for present violent action," whether in 1927 or later. Even
if it were conclusively established against the Government that neither petitioner nor the Communist
Party had ever engaged in such advocacy, that circumstance would constitute no bar to a conviction
under 18 U.S.C. 371 of conspiring to advocate forcible overthrow of government in violation of the
Smith Act. It is not necessary for conviction here that advocacy of "present violent action" be proved.
Petitioner's demand for judgment of acquittal must therefore be rejected. The decision in Federal Trade
Commission v. Cement Institute, 333 U.S. 683, 708 -709, is precisely in point and is controlling.
What we have said we think also disposes of petitioner's contention that the trial court should have
instructed the jury that certain evidentiary or subordinate issues must be taken as conclusively
determined in his favor. The argument is that the determinations made in the Schneiderman case are
not wholly irrelevant to this case, even if they do not conclude it, and hence that petitioner should be
entitled to an instruction giving those determinations such partial conclusive effect as they might
warrant. We think, however, that the doctrine [354 U.S. 298, 338] of collateral estoppel does not
establish any such concept of "conclusive evidence" as that contended for by petitioner. The normal rule
is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate
facts in issue in the subsequent proceeding. So far as merely evidentiary or "mediate" facts are
concerned, the doctrine of collateral estoppel is inoperative. The Evergreens v. Nunan, 141 F.2d 927;
Restatement, Judgments 68, comment p. Whether there are any circumstances in which the giving of
limiting instructions such as those requested here might be necessary or proper, we need not now
determine. Cf. Bordonaro Bros. Theatres, Inc. v. Paramount Pictures, Inc., 203 F.2d 676, 678. It is
sufficient for us to hold that in this case the matters of fact and mixed fact and law necessarily
determined by the prior judgment, limited as they were to the year 1927, were so remote from the
issues as to justify their exclusion from evidence in the discretion of the trial judge.
95
Since there must be a new trial, we have not found it necessary to deal with the contentions of the
petitioners as to the fairness of the trial already held. The judgment of the Court of Appeals is reversed,
and the case remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE BURTON, concurring in the result.
I agree with the result reached by the Court, and with the opinion of the Court except as to its
interpretation of the term "organize" as used in the Smith Act. As to that, I agree with the interpretation
given it by the Court of Appeals. 225 F.2d 146.
MR. JUSTICE BRENNAN and MR. JUSTICE WHITTAKER took no part in the consideration or decision of
this case.
Footnotes
[ Footnote 1 ] The Smith Act, as enacted in 1940, provided in pertinent part as follows: "SEC. 2. (a) It
shall be unlawful for any person - "(1) to knowingly or willfully advocate, abet, advise, or teach the duty,
necessity, desirability, or propriety of overthrowing or destroying any government in the United States
by force or violence . . .; "(2) with the intent to cause the overthrow or destruction of any government in
the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written
or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of
overthrowing or destroying any government in the United States by force or violence; "(3) to organize or
help to organize any society, group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any government in the United States by force or violence; or to be or
become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the
purposes thereof. . . . . . "SEC. 3. It shall be unlawful for any person to attempt to commit, or to conspire
to commit, any of the acts prohibited by the provisions of this title. . . . . . "SEC. 5. (a) Any person who
violates any of the provisions of this title shall, upon conviction thereof, be fined not more than $10,000
or imprisoned for not more than ten years, or both." Effective September 1, 1948, the Smith Act was
repealed, and substantially re-enacted as 18 U.S.C. 2385, as part of the 1948 recodification. 62 Stat. 808.
Section 2385 provided in pertinent part as follows: "Whoever knowingly or willfully advocates, abets,
advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the
government of the United States . . . by force or violence . . .; or "Whoever, with intent to cause the
overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells,
distributes, or publicly displays any written or printed matter advocating, [354 U.S. 298, 302] advising,
or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government
in the United States by force or violence . . .; or "Whoever organizes or helps or attempts to organize any
society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction
of any such government by force or violence; or becomes or is a member of, or affiliates with, any such
society, group, or assembly of persons, knowing the purposes thereof - "Shall be fined not more than
$10,000 or imprisoned not more than ten years, or both . . . ." For convenience the original Smith Act
and 2385 will both be referred to in this opinion as "the Smith Act." It will be noted that the
recodification did not carry into 2385 the conspiracy section of the Smith Act ( 3). The latter provision,
however, was in substance restored to 2385 on July 24, 1956, to apply to offenses committed on or after
that date. 70 Stat. 623. The conspiracy charged in this case was laid under 3 of the Smith Act for the
period 1940 to September 1, 1948, and for the period thereafter, down to the filing of the indictment in
1951, under the general conspiracy statute, 18 U.S.C. 371, providing in pertinent part as follows: "If two
96
or more persons conspire . . . to commit any offense against the United States, . . . and one or more of
such persons do any act to effect the object of the conspiracy, each shall be fined not more than
$10,000 or imprisoned not more than five years, or both."
[ Footnote 2 ] We find it unnecessary to consider the petitioners' contention with respect to the District
Court's alleged failure to apply the "clear and present danger" rule, as well as the contention that their
motions for a new trial and a continuance were erroneously denied.
[ Footnote 3 ] See note 1, supra, at p. 302.
[ Footnote 4 ] Except where otherwise indicated, throughout this opinion "Communist Party" refers to
the present Communist Party of the United States.
[ Footnote 5 ] It is not disputed that the Communist Party, as referred to in the indictment, came into
being no later than July 1945, when the Communist Political Association was disbanded and
reconstituted as the Communist Party of the United States. The original Party was founded in this
country in 1919.
[ Footnote 6 ] 62 Stat. 828, 18 U.S.C. 3282.
[ Footnote 7 ] Both petitioners and the Government cite the following definitions of "organize" from
Webster's New International Dictionary (2d ed.): "1. To furnish with organs; to give an organic structure
to. . . . 2. To arrange or constitute in interdependent parts, each having a special function, act, office, or
relation with respect to the whole; to systematize; to get into working order; as, to organize an army; to
organize recruits." The Government also gives us the following from Funk & Wagnall's New Standard
Dictionary (1947): "1. To bring into systematic connection and cooperation as parts of a whole, or to
bring the various parts of into effective correlation and cooperation; as, to organize the peasants into an
army." And petitioners cite Black's Law Dictionary, as follows: "To establish or furnish with organs; to
systematize; to put into working order; to arrange in order for the normal exercise of its appropriate
functions."
[ Footnote 8 ] Representative John W. McCormack, one of the leading proponents of the Smith Act,
stated before the Subcommittee of the Committee on the Judiciary, House of Representatives: "And by
the way, this bill is not alone aimed at Communists; this bill is aimed at anyone who advocates the
overthrow of Government by violence and force." Hearing before Subcommittee No. 2 of the House
Committee on the Judiciary on H. R. 4313 and H. R. 6427, 74th Cong., 1st Sess., May 22, 1935, Serial 5, p.
3.
[ Footnote 9 ] Id., passim.
[ Footnote 10 ] The "organizing" section, supra, n. 1, also makes it an offense "to be or become a
member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes
thereof."
[ Footnote 11 ] Cal. Stat. 1919, c. 188, West's Ann. Cal. Codes, Penal Code, 11401.
97
[ Footnote 12 ] See People v. Thurman, 62 Cal. App. 147, 216 P. 394; People v. Thornton, 63 Cal. App.
724, 219 P. 1020; People v. Ware, 67 Cal. App. 81, 226 P. 956.
[ Footnote 13 ] N. Y. Laws 1902, c. 371, McKinney's N. Y. Laws, Penal Law, 161.
[ Footnote 14 ] In other contexts state courts have given the term that meaning. See State ex rel. Childs
v. School District, 54 Minn. 213, 55 N. W. 1122; Whitmire v. Cass, 213 S. C. 230, 236, 49 S. E. 2d 1, 3;
Warren v. Barber Asphalt Pav. Co., 115 Mo. 572, 576-577, 22 S. W. 490-491; Commonwealth v. Wm.
Mann Co., 150 Pa. 64, 70, 24 A. 601, 602.
[ Footnote 15 ] Following the decision of the Court of Appeals for the Ninth Circuit in this case,
"organize" has been given its wider meaning by two District Courts in that circuit, United States v.
Fujimoto, [354 U.S. 298, 311] reported on another point, 107 F. Supp. 865, and United States v. Huff, as
yet unreported, now pending on appeal to the Court of Appeals. The Court of Appeals for the Sixth
Circuit, following the Ninth Circuit, has likewise given the term its broader meaning. Wellman v. United
States, 227 F.2d 757.
[ Footnote 16 ] The trial court did no more on this score than to charge, in the language of the
indictment, that the conspiracy had two objects, namely, to advocate and teach forcible overthrow and
to organize the Communist Party as a vehicle for that purpose, and then instruct the jury that it must
find that "the conspiracy charged in the indictment" had been proved beyond a reasonable doubt.
[ Footnote 17 ] Of the 23 overt acts charged, 20 alleged attendance of various defendants at meetings or
conventions, and 3 alleged the issuance and circulation of "directives" by certain of the defendants. Only
two of the acts alleged were proved. Both were Party meetings unmarked by any advocacy of the type
that the petitioners were allegedly conspiring to promote.
[ Footnote 18 ] The trial court charged: "As used in the Smith Act and the indictment: "(1) the word
`advocate' means to urge or `to plead in favor of; . . . to support, vindicate, or recommend publicly . . .';
"(2) the word `teach' means `to instruct . . . show how . . . to guide the studies of . . .'; . . . . . "The holding
of a belief or opinion does not constitute advocacy or teaching. Hence the Smith Act does not prohibit
persons who may believe that the violent overthrow and destruction of the Government of the United
States is probable or inevitable from expressing that belief. Whether such belief be reasonable or
unreasonable is immaterial. Prediction or prophecy is not advocacy. "Any advocacy or teaching which
does not include the urging of force and violence as the means of overthrowing and destroying the
Government of the United States is not within the issue of the indictment here and can constitute no
basis for any finding against the defendants. "The kind of advocacy and teaching which is charged and
upon which your verdict must be reached is not merely a desirability but a necessity that the
Government of the United States be overthrown and destroyed by force and violence and not merely a
propriety [354 U.S. 298, 314] but a duty to overthrow and destroy the Government of the United States
by force and violence. . . . . . "The word `wilfully,' as used in the indictment, means a statement or
declaration made or other act done with the specific intent to cause or bring about the overthrow and
destruction of the Government of the United States by force and violence as speedily as circumstances
would permit. "The defendants, in common with all other persons living under our Constitution, have a
general right protected by the First Amendment to hold, express, teach and advocate opinions, even
though their opinions are rejected by the overwhelming majority of the American people; and have the
further right to organize or combine peaceably with other persons for the purpose of spreading and
promoting their opinions more effectively. "Whether you agree with these opinions or whether they
98
seem to you reasonable, unreasonable, absurd, distasteful or hateful has no bearing whatever on the
right of other persons to maintain them and to seek to persuade others of their validity. "No inference
that any of the defendants knowingly and wilfully conspired as charged in the indictment, or intended to
cause or bring about the overthrow and destruction of the Government of the United States by force
and violence as speedily as circumstances would permit, may be drawn from the advocacy or teaching
of [354 U.S. 298, 315] socialism or other economic or political or social doctrines, by reason of any
unpopularity of such doctrines or by reason of any opinion you may hold with respect to whether such
doctrines, or the opinions or beliefs of any of the defendants, are unreasonable, distasteful, absurd or
hateful. "The defendants, in common with other persons living under our Constitution, have the right
protected by the First Amendment to criticize our system of Government and the Government itself,
even though the speaking or writing of such criticism may undermine confidence in the Government or
cause or increase discontent. They have the right also to criticize the foreign policy of the United States
and the role being played by this country in international affairs; and to praise the foreign policy of other
governments and the role being played by those governments in international affairs. "The right of the
defendants to enjoy such freedom of expression is unaffected by whether or not the opinions spoken or
published may seem to you to be crudely intemperate, or to contain falsehoods, or to be designed to
embarrass the Government. No inference of conspiracy to advocate and teach the necessity and duty of
overthrow and destruction of the Government of the United States by force and violence, or of intent to
cause or bring about the overthrow and destruction of the Government of the United States by force
and violence as speedily as circumstances would permit, may be drawn from such expressions alone."
[ Footnote 19 ] Petitioners' proposed instructions were: "Where the Smith Act, the statute which these
defendants are charged with conspiring to violate, speaks of advocating and teaching the duty and
necessity of overthrowing the Government by force and violence, this refers only to statements which,
in the language of incitement to action, urge immediate action to overthrow the then existing
government under the then existing circumstances. A statement on the other hand, that, if our form of
government should change in the future, violent overthrow of the government would then become
necessary and right, is not within the Smith Act's prohibition and would not constitute any basis for a
finding against the defendants here. . . . . . "For purposes of this trial, a person can be said to teach or
advocate the overthrow and destruction of the Government of the United States by force and violence
only when his expression are designed to induce action, rather than discussion or belief, and only when
they are expressed in language which, under the circumstances in which it is used, is reasonably and
ordinarily calculated to incite persons to such action, rather than merely to discussion or belief. . . . . .
"The burden is on the prosecution to show beyond a reasonable doubt that a common understanding
existed among the alleged co-conspirators as to the specific content of expressions amounting to
advocacy of the overthrow and destruction of the Government by force and violence. The Government
must further show that this understanding included and understanding that such advocacy would be in
language amounting to incitement to action and that it would take place under circumstances such as to
lead to a probability that it would inspire persons to take action toward violent overthrow. "The
Government's burden is not met by proof that the defendant shared certain beliefs and made joint
efforts to persuade other persons to adopt them, no matter what you may find the content of such [354
U.S. 298, 317] beliefs to have been, or whether you may agree or disagree with such beliefs." The
Government's proposed instruction was: "In further construction and interpretation of the statute I
charge you that it is not the abstract doctrine of overthrowing or destroying organized government by
unlawful means which is denounced by this law, but the teaching and advocacy of action for the
accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to
such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged
unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and
99
assembly of persons who teach and advocate the overthrow or destruction of the Government of the
United States by force and violence and to advocate and teach the duty and necessity of overthrowing
or destroying the Government of the United States by force and violence, with the intent that such
teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily
calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of
the Government of the United States by force and violence as speedily as circumstances would permit."
[ Footnote 20 ] The Government's proposed instruction was that given by the trial court in the Dennis
case, 341 U.S. 494 . See p. 326, infra.
[ Footnote 21 ] Having stated that all advocacy and teaching of forcible overthrow of Government was
punishable "whether it is language of incitement or not," so long as it was done with the requisite
intent, the court added, "It seems to me this question of `incitement to' is involved around the question
of sufficiency of evidence to indicate intent. The language used is language of philosophy and theory and
academic treatment, rather than language . . . [of] `incitement to action.' If the jury should convict on
that sort of language, [the] argument would be the evidence was insufficient to sustain the conviction . .
. ."
[ Footnote 22 ] For discussion of the principal cases in this Court on the subject, see the several opinions
in Dennis v. United States, supra.
[ Footnote 23 ] The New York Criminal Anarchy Act, note 13, supra.
[ Footnote 24 ] See Dennis v. United States, supra, at 541.
[ Footnote 25 ] Hearings on H. R. 4313 and H. R. 6427, May 22, 1935, at pp. 5, 6, cited in note 8, supra.
[ Footnote 26 ] At the hearing cited in note 8, supra, Representative McCormack repeatedly emphasized
that the proscribed advocacy was inciting advocacy. For example, he stated: ". . . the word `advocacy'
means `in a manner to incite,' as construed by the Supreme Court in the Gitlow case . . . ." (P. 5.) ". . .
Government has a right to make it a crime for a person to use language specifically inciting to the
commission of illegal acts. . . . [I]t is advocacy in the manner to incite, knowingly to advocate in a manner
to incite to the overthrow of the Government . . . ." (P. 15.) See also pp. 4, 8, 11.
[ Footnote 27 ] See p. 326, infra.
[ Footnote 28 ] See United States v. Schneiderman, 106 F. Supp. 906, 923.
[ Footnote 29 ] The writ of certiorari in Dennis did not bring up the sufficiency of the evidence. 340 U.S.
863 .
[ Footnote 30 ] See note 1, supra.
[ Footnote 31 ] The Court of Appeals stated, 225 F.2d, at 151: "Finally, [referring to Dennis] the opinion
of the Court of Appeals and a concurring opinion in the Supreme Court gave approval of instructions of
the trial judge in Dennis requiring the jury to find `language of incitement' was used by the conspirators
there. Another phrase given approval is that the doctrine of destruction had become a `rule of action.' In
100
conjunction with an indictment based upon such a statute proscribing organization for the purpose of
teaching and advocating overthrow, but which required neither proof of overt acts nor a specifically
planned objective, such precautionary instructions were well enough. But these expressions of the
judges in instructions in connection with the original statute established no unalterable requirement
that such phrases themselves be used [354 U.S. 298, 323] ipsissimis verbis where the changes in the
basic law and an entirely different indictment predicated upon the conspiracy statute have rendered
admonitions to a jury in such language supererogatory." And further at p. 162: "The gist of the
substantive crime of conspiracy is that an unlawful combination and agreement becomes a positive
crime only when some of the proved conspirators enter the field of action pursuant to the criminal
design. Therefore, if the conspiracy did not become a rule of action pursuant to the proscribed intent,
there would have been no violation of the conspiracy statute. The use of such phrases [as incitement] in
instructions might have been well enough where a violation of the Smith Act alone was charged in its
original form. It would be folly to command imperatively that these specific phrases be each used in
instructions after a trial on an indictment such as the present one." It may also be noted that for the
period 1940 to September 1, 1948 (see note 1, supra), the conspiracy charge here was laid under the old
Smith Act.
[ Footnote 32 ] See pp. 317-318, supra.
[ Footnote 33 ] See note 19, supra.
[ Footnote 34 ] The record consists of some 14,000 typewritten pages.
[ Footnote 35 ] 64 Stat. 987, 50 U.S.C. 783 (f): "Neither the holding of office nor membership in any
Communist organization by any person shall constitute per se a violation of subsection (a) or subsection
(c) of this section or of any other criminal statute."
[ Footnote 36 ] While there was evidence that might tend to link petitioner Richmond to "the
conspiracy," i. e., evidence of association by him with other petitioners, and with an individual who
might be found by the jury to have engaged during the same period in the proscribed advocacy, see pp.
332-333, infra, we think that without more such evidence would not justify refusal to direct an acquittal.
[354 U.S. 298, 339]
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring in part and dissenting in part.
I.
I would reverse every one of these convictions and direct that all the defendants be acquitted. In my
judgment the statutory provisions on which these prosecutions are based abridge freedom of speech,
press and assembly in violation of the First Amendment to the United States Constitution. See my
dissent and that of MR. JUSTICE DOUGLAS in Dennis v. United States, 341 U.S. 494, 579 , 581. Also see
my opinion in American Communications Assn. v. Douds, 339 U.S. 382, 445 .
The kind of trials conducted here are wholly dissimilar to normal criminal trials. Ordinarily these "Smith
Act" trials are prolonged affairs lasting for months. In part this is attributable to the routine introduction
in evidence of massive collections of books, tracts, pamphlets, newspapers, and manifestoes discussing
Communism, Socialism, Capitalism, Feudalism and governmental institutions in general, which, it is not
101
too much to say, are turgid, diffuse, abstruse, and just plain dull. Of course, no juror can or is expected
to plow his way through this jungle of verbiage. The testimony of witnesses is comparatively
insignificant. Guilt or innocence may turn on what Marx or Engels or someone else wrote or advocated
as much as a hundred or more years ago. Elaborate, refined distinctions are drawn between
"Communism," "Marxism," "Leninism," "Trotskyism," and "Stalinism." When the propriety of obnoxious
or unorthodox views about government is in reality made the crucial issue, as it must be in cases of this
kind, prejudice makes conviction inevitable except in the rarest circumstances. [354 U.S. 298, 340]
II.
Since the Court proceeds on the assumption that the statutory provisions involved are valid, however, I
feel free to express my views about the issues it considers.
First. - I agree with Part I of the Court's opinion that deals with the statutory term, "organize," and holds
that the organizing charge in the indictment was barred by the three-year statute of limitations.
Second. - I also agree with the Court insofar as it holds that the trial judge erred in instructing that
persons could be punished under the Smith Act for teaching and advocating forceful overthrow as an
abstract principle. But on the other hand, I cannot agree that the instruction which the Court indicates it
might approve is constitutionally permissible. The Court says that persons can be punished for
advocating action to overthrow the Government by force and violence, where those to whom the
advocacy is addressed are urged "to do something, now or in the future, rather than merely to believe in
something." Under the Court's approach, defendants could still be convicted simply for agreeing to talk
as distinguished from agreeing to act. I believe that the First Amendment forbids Congress to punish
people for talking about public affairs, whether or not such discussion incites to action, legal or illegal.
See Meiklejohn, Free Speech and Its Relation to Self-Government. Cf. Chafee, Book Review, 62 Harv. L.
Rev. 891. As the Virginia Assembly said in 1785, in its "Statute for Religious Liberty," written by Thomas
Jefferson, "it is time enough for the rightful purposes of civil government, for its officers to interfere
when principles break out into overt acts against peace and good order. . . ." * Cf. Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 501 -502; Labor [354 U.S. 298, 341] Board v. Virginia Electric & P. Co.,
314 U.S. 469, 476 -480; Virginia Electric & P. Co. v. Labor Board, 319 U.S. 533, 539 .
Third. - I also agree with the Court that petitioners, Connelly, Kusnitz, Richmond, Spector, and Steinberg,
should be ordered acquitted since there is no evidence that they have ever engaged in anything but
"wholly lawful activities." But in contrast to the Court, I think the same action should also be taken as to
the remaining nine defendants. The Court's opinion summarizes the strongest evidence offered against
these defendants. This summary reveals a pitiful inadequacy of proof to show beyond a reasonable
doubt that the defendants were guilty of conspiring to incite persons to act to overthrow the
Government. The Court says:
"In short, while the record contains evidence of little more than a general program of
educational activity by the Communist Party which included advocacy of violence as a
theoretical matter, we are not prepared to say, at this stage of the case, that it would be
impossible for a jury, resolving all conflicts in favor of the Government and giving the evidence
as to these San Francisco and Los Angeles episodes its utmost sweep, to find that advocacy of
action was also engaged in when the group involved was thought particularly trustworthy,
dedicated, and suited for violent tasks."
102
It seems unjust to compel these nine defendants, who have just been through one four-month trial, to
go through the ordeal of another trial on the basis of such flimsy evidence. As the Court's summary
demonstrates, the evidence introduced during the trial against these defendants was insufficient to
support their conviction. Under such circumstances, it was the duty of the trial judge to direct a verdict
of acquittal. If the jury had [354 U.S. 298, 342] been discharged so that the Government could gather
additional evidence in an attempt to convict, such a discharge would have been a sound basis for a plea
of former jeopardy in a second trial. See Wade v. Hunter, 336 U.S. 684 , and cases cited there. I cannot
agree that "justice" requires this Court to send these cases back to put these defendants in jeopardy
again in violation of the spirit if not the letter of the Fifth Amendment's provision against double
jeopardy.
Fourth. - The section under which this conspiracy indictment was brought, 18 U.S.C. 371, requires proof
of an overt act done "to effect the object of the conspiracy." Originally, 11 such overt acts were charged
here. These 11 have now dwindled to 2, and as the Court says:
"Each was a public meeting held under Party auspices at which speeches were made by one or
more of the petitioners extolling leaders of the Soviet Union and criticizing various aspects of
the foreign policy of the United States. At one of the meetings an appeal for funds was made.
Petitioners contend that these meetings do not satisfy the requirement of the statute that there
be shown an act done by one of the conspirators `to effect the object of the conspiracy.' The
Government concedes that nothing unlawful was shown to have been said or done at these
meetings, but contends that these occurrences nonetheless sufficed as overt acts under the
jury's findings."
The Court holds that attendance at these lawful and orderly meetings constitutes an "overt act"
sufficient to meet the statutory requirements. I disagree.
The requirement of proof of an overt act in conspiracy cases is no mere formality, particularly in
prosecutions like these which in many respects are akin to trials for treason. Article III, 3, of the
Constitution provides [354 U.S. 298, 343] that "No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in open Court." One of the objects
of this provision was to keep people from being convicted of disloyalty to government during periods of
excitement when passions and prejudices ran high, merely because they expressed "unacceptable"
views. See Cramer v. United States, 325 U.S. 1, 48 . The same reasons that make proof of overt acts so
important in treason cases apply here. The only overt act which is now charged against these
defendants is that they went to a constitutionally protected public assembly where they took part in
lawful discussion of public questions, and where neither they nor anyone else advocated or suggested
overthrow of the United States Government. Many years ago this Court said that "The very idea of a
government, republican in form, implies a right on the part of its citizens to meet peaceably for
consultation in respect to public affairs and to petition for a redress of grievances." United States v.
Cruikshank, 92 U.S. 542, 552 . And see De Jonge v. Oregon, 299 U.S. 353, 364 -365. In my judgment
defendants' attendance at these public meetings cannot be viewed as an overt act to effectuate the
object of the conspiracy charged.
III.
In essence, petitioners were tried upon the charge that they believe in and want to foist upon this
country a different and to us a despicable form of authoritarian government in which voices criticizing
103
the existing order are summarily silenced. I fear that the present type of prosecutions are more in line
with the philosophy of authoritarian government than with that expressed by our First Amendment.
Doubtlessly, dictators have to stamp out causes and beliefs which they deem subversive to their evil
regimes. [354 U.S. 298, 344] But governmental suppression of causes and beliefs seems to me to be the
very antithesis of what our Constitution stands for. The choice expressed in the First Amendment in
favor of free expression was made against a turbulent background by men such as Jefferson, Madison,
and Mason - men who believed that loyalty to the provisions of this Amendment was the best way to
assure a long life for this new nation and its Government. Unless there is complete freedom for
expression of all ideas, whether we like them or not, concerning the way government should be run and
who shall run it, I doubt if any views in the long run can be secured against the censor. The First
Amendment provides the only kind of security system that can preserve a free government - one that
leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however
obnoxious and antagonistic such views may be to the rest of us.
[ Footnote * ] 12 Hening's Stat. (Virginia 1823), c. 34, p. 85.
MR. JUSTICE CLARK, dissenting.
The petitioners, principal organizers and leaders of the Communist Party in California, have been
convicted for a conspiracy covering the period 1940 to 1951. They were engaged in this conspiracy with
the defendants in Dennis v. United States, 341 U.S. 494 (1951). The Dennis defendants, named as coconspirators but not indicted with the defendants here, were convicted in New York under the former
conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) 11. They have served or are
now serving prison terms as a result of their convictions.
The conspiracy charged here is the same as in Dennis, except that here it is geared to California
conditions, and brought, for the period 1948 to 1951, under the general conspiracy statute, 18 U.S.C.
371, rather than the old conspiracy section of the Smith Act. The indictment [354 U.S. 298, 345]
charges petitioners with a conspiracy to violate two sections of the Smith Act, as recodified in 18 U.S.C.
2385, by knowingly and wilfully (1) teaching and advocating the violent overthrow of the Government of
the United States, and (2) organizing in California through the creation of groups, cells, schools,
assemblies of persons, and the like, the Communist Party, a society which teaches or advocates violent
overthrow of the Government.
The conspiracy includes the same group of defendants as in the Dennis case though petitioners here
occupied a lower echelon in the party hierarchy. They, nevertheless, served in the same army and were
engaged in the same mission. The convictions here were based upon evidence closely paralleling that
adduced in Dennis and in United States v. Flynn, 216 F.2d 354 (C. A. 2d Cir. 1954), both of which resulted
in convictions. This Court laid down in Dennis the principles governing such prosecutions and they were
closely adhered to here, although the nature of the two cases did not permit identical handling.
I would affirm the convictions. However, the Court has freed five of the convicted petitioners and
ordered new trials for the remaining nine. As to the five, it says that the evidence is "clearly insufficient."
I agree with the Court of Appeals, the District Court, and the jury that the evidence showed guilt beyond
a reasonable doubt. 1 It paralleled that in Dennis and Flynn and was [354 U.S. 298, 346] equally as
strong. In any event, this Court should not acquit anyone here. In its long history I find no case in which
104
an acquittal has been ordered by this Court solely on the facts. It is somewhat late to start in now
usurping the function of the jury, especially where new trials are to be held covering the same charges.
It may be - although after today's opinion it is somewhat doubtful - that under the new theories
announced by the Court [354 U.S. 298, 347] for Smith Act prosecutions sufficient evidence might be
available on remand. To say the least, the Government should have an opportunity to present its
evidence under these changed conditions.
I cannot agree that half of the indictment against the remaining nine petitioners should be quashed as
barred by the statute of limitations. I agree with my Brother BURTON that the Court has incorrectly
interpreted the [354 U.S. 298, 348] term "organize" as used in the Smith Act. The Court concludes that
the plain words of the Act, 2 "Whoever organizes or helps or attempts to organize any society, group, or
assembly of persons" (emphasis added) embodies only those "acts entering into the creation of a new
organization." As applied to the Communist Party, the Court holds that it refers only to the
reconstitution of the Party in 1945 and a part of the prosecution here is, therefore, barred by the threeyear statute of limitations. This construction frustrates the purpose of the Congress for the Act was
passed in 1940 primarily to curb the growing strength and activity of the Party. 3 Under such an
interpretation all prosecution would have been barred at the very time of the adoption of the Act for
the Party was formed in 1919. If the Congress had been concerned with the initial establishment of the
Party it would not have used the words "helps or attempts," nor the phrase "group [354 U.S. 298, 349]
or assembly of persons." It was concerned with the new Communist fronts, cells, schools, and other
groups, as well as assemblies of persons, which were being created nearly every day under the aegis of
the Party to carry on its purposes. This is what the indictment here charges and the proof shows beyond
doubt was in fact done. The decision today prevents for all time any prosecution of Party members
under this subparagraph of the Act.
While the holding of the Court requires a reversal of the case and a retrial, the Court very properly
considers the instructions given by the trial judge. I do not agree with the conclusion of the Court
regarding the instructions, but I am highly pleased to see that it disposes of this problem so that on the
new trial instructions will be given that will at least meet the views of the Court. I have studied the
section of the opinion concerning the instructions and frankly its "artillery of words" leaves me confused
as to why the majority concludes that the charge as given was insufficient. I thought that Dennis merely
held that a charge was sufficient where it requires a finding that "the Party advocates the theory that
there is a duty and necessity to overthrow the Government by force and violence. . . . not as a prophetic
insight or as a bit of . . . speculation, but as a program for winning adherents and as a policy to be
translated into action" as soon as the circumstances permit. 341 U.S., at 546 -547 (concurring opinion). I
notice however that to the majority
"The essence of the Dennis holding was that indoctrination of a group in preparation for future
violent action, as well as exhortation to immediate action, by advocacy found to be directed to
`action for the accomplishment' of forcible overthrow, to violence `as a rule or principle of
action,' and employing `language of incitement,' id., at 511-512, is not constitutionally protected
when the group is of sufficient [354 U.S. 298, 350] size and cohesiveness, is sufficiently
oriented towards action, and other circumstances are such as reasonably to justify
apprehension that action will occur."
I have read this statement over and over but do not seem to grasp its meaning for I see no resemblance
between it and what the respected Chief Justice wrote in Dennis, nor do I find any such theory in the
concurring opinions. As I see it, the trial judge charged in essence all that was required under the Dennis
opinions, whether one takes the view of the Chief Justice or of those concurring in the judgment.
105
Apparently what disturbs the Court now is that the trial judge here did not give the Dennis charge
although both the prosecution and the defense asked that it be given. Since he refused to grant these
requests I suppose the majority feels that there must be some difference between the two charges, else
the one that was given in Dennis would have been followed here. While there may be some distinctions
between the charges, as I view them they are without material difference. I find, as the majority
intimates, that the distinctions are too "subtle and difficult to grasp."
However, in view of the fact that the case must be retried, regardless of the disposition made here on
the charges, I see no reason to engage in what becomes nothing more than an exercise in semantics
with the majority about this phase of the case. Certainly if I had been sitting at the trial I would have
given the Dennis charge, not because I consider it any more correct, but simply because it had the stamp
of approval of this Court. Perhaps this approach is too practical. But I am sure the trial judge realizes
now that practicality often pays.
I should perhaps add that I am in agreement with the Court in its holding that petitioner Schneiderman
can find no aid from the doctrine of collateral estoppel.
[ Footnote 1 ] Petitioners Richmond, Connelly, Kusnitz, Steinberg, and Spector are set free. Richmond at
the time of his indictment had for many years been the editor-in-chief of the Daily People's World, the
official organ of the Party on the West Coast. He had joined the Party in 1931 and received his
indoctrination in Communist technique at the offices of the Daily Worker, the official Party paper on the
East Coast. In 1937 he was chosen by the Party's Central Committee to be [354 U.S. 298, 346] managing
editor of the Daily People's World and was transferred to California. From 1946 through 1948 he
regularly attended secret meetings of the state and county boards of the Party, admission to which was
by identification from a special list of Party members prepared by the Party chairman or its security
chief. Party strategy was mapped out at "very secret meetings" attended by Richmond and the core of
the Party machinery, including at least seven of the petitioners here. Richmond served on a special
committee to help develop "preconvention discussion" with petitioner Yates; he represented the state
committee at the 1950 convention; he addressed many Party meetings preaching the "vanguard role" of
the Party and the importance of the People's World in the Communist movement; and his articles in the
paper urged the "Leninist and Marxist approach." Connelly, a Party member since at least 1938, was the
Los Angeles editor of the People's World. During the mobilization effort early in World War II he devoted
his efforts to "building up sentiment against . . . the war effort" among steel, aircraft, and shipyard
workers. He attended the same secret meetings attended by Richmond. There can be no question that
the proof sustained the charges against Richmond and Connelly in the conspiracy. Their newspaper was
the conduit through which the Party announced its aims, policies, and decisions, sought its funds, and
recruited its members. It is the height of naivete to claim that the People's World does not publish
appeals to its readers to follow Party doctrine in seeking the overthrow of the Government by force, but
it is stark reality to conclude that such a publication provides an incomparable means of promoting the
Party's aim of forcible seizure when the time is ripe. Petitioner Spector has been active in the California
Party since the early 1930's. He taught "Marxism-Leninism" in Party schools [354 U.S. 298, 347] and
was "division organizer" in Los Angeles County. He attended "underground meetings" with petitioners
Lambert, Dobbs, Healy, Carlson, and Schneiderman. The witness Rosser testified that these meetings
were "so hid that you couldn't get to them unless you were invited and taken there." In 1946 he
"conducted classes" for Party members in Hollywood, and in 1947 as a member of a committee of three
Party officials examined the witness Russell, a student in one of his classes, on charges of being a Party
"police spy." Petitioner Kusnitz, following an organizational indoctrination period in New York City,
became a Party leader in California in 1946, served as "section organizer," and later as "organizational
106
secretary" in Los Angeles. Her position was directly below that of the local chairman in Party hierarchy.
She attended many secret meetings and was present at a Party meeting with petitioner Yates when
Yates advocated the necessity of "Soviet support" and "Marxist-Leninist training" as a means of bringing
about the Soviet "type of government . . . all over the world." She contributed articles to Communist
publications and was very active in the "regrouping of . . . clubs into smaller units"; conducting a "six
session leadership training seminar"; carrying on campaigns for subscriptions to the People's World; and
leading the "Party Building drive" for the recruitment of members. Petitioner Henry Steinberg, active in
the Young Communist League, and associated with the Party since 1936, was the "educational director."
He took part in the creation of the program for the Party's training schools in Los Angeles County. His
"education department" sponsored several meetings, one honoring the 25th anniversary of the death of
Lenin. He worked with petitioner Schneiderman, the Party Chairman in California, attended meetings
regularly, was active in circulation drives for the People's World, and was the principal speaker at many
meetings.
[ Footnote 2 ] 18 U.S.C. 2385.
[ Footnote 3 ] Congressman McCormack's remarks on the floor of the House of Representatives on July
29, 1939, during the debate on the Smith Act reflect the underlying purpose behind that Act. He stated,
inter alia: "We all know that the Communist movement has as its ultimate objective the overthrow of
government by force and violence or by any means, legal or illegal, or a combination of both. That
testimony was indisputably produced before the special committee of which I was chairman, and came
from the lips not of those who gave hearsay testimony, but of the actual official records of the
Communist Party of the United States, presented to our committee by the executive secretary of the
Communist Party and the leader of the Communist Party in the United States, Earl Browder. . . .
Therefore, a Communist is one who intends knowingly or willfully to participate in any actions, legal or
illegal, or a combination of both, that will bring about the ultimate overthrow of our Government. He is
the one we are aiming at . . . ." (Emphasis added.) 84 Cong. Rec. 10454. See also Hearings before
Subcommittee No. 3 of the House Committee on the Judiciary on H. R. 5138, 76th Cong., 1st Sess. 84.
[354 U.S. 298, 351]
107
U.S. Supreme Court
BRANDENBURG v. OHIO, 395 U.S. 444 (1969)
395 U.S. 444
BRANDENBURG v. OHIO.
APPEAL FROM THE SUPREME COURT OF OHIO.
No. 492.
Argued February 27, 1969.
Decided June 9, 1969.
Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for
"advocat[ing] . . . the duty, necessity, or propriety 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." Neither the indictment nor the trial judge's instructions refined the statute's definition of
the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.
Held: Since the statute, by its 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, it
falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press
do not permit a State to forbid advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce
such action. Whitney v. California, 274 U.S. 357 , overruled.
Reversed.
Allen Brown argued the cause for appellant. With him on the briefs were Norman Dorsen, Melvin L.
Wulf, Eleanor Holmes Norton, and Bernard A. Berkman.
Leonard Kirschner argued the cause for appellee. With him on the brief was Melvin G. Rueger.
Paul W. Brown, Attorney General of Ohio, pro se, and Leo J. Conway, Assistant Attorney General, filed a
brief for the Attorney General as amicus curiae.
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 [395 U.S. 444, 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." Ohio 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 Ohio affirmed his conviction without opinion. The
Supreme Court of Ohio dismissed his appeal, sua sponte, "for the reason that no substantial
108
constitutional question exists herein." It did not file an opinion or explain its conclusions. Appeal was
taken to this Court, and we noted probable jurisdiction. 393 U.S. 948 (1968). We reverse.
The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on
the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at
a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman
attended the meeting and filmed the events. Portions of the films were later broadcast on the local
station and on a national network.
The prosecution's case rested on the films and on testimony identifying the appellant as the person 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 [395 U.S. 444, 446] other than the participants
and 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. 1 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 Ohio. I can quote from a
newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The
Klan has more members in the State of Ohio than does any other organization. We're not a
revengent organization, but if our President, our Congress, our Supreme Court, continues to
suppress the white, Caucasian race, it's possible that there might have to be some revengeance
taken.
"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 St. Augustine, Florida, the other group to
march into Mississippi. Thank you." [395 U.S. 444, 447]
The second film showed six hooded figures one of whom, later identified as the appellant, repeated a
speech very similar to that recorded on the first film. The reference to the possibility of "revengeance"
was omittted[�], and one sentence was added: "Personally, I believe the nigger should be returned to
Africa, the Jew returned to Israel." Though some of the figures in the films carried weapons, the speaker
did not.
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 United States 21 (1939). In 1927, this Court sustained the constitutionality of
California's Criminal Syndicalism Act, Cal. Penal Code 11400-11402, the text of which is quite similar to
that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the
ground that, without more, "advocating" violent means to effect political and economic change involves
such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380
(1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341
U.S. 494 , at 507 (1951). These later decisions have fashioned the principle that the constitutional
guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the
109
use of force or of law violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action. 2 As we [395 U.S. 444, 448] said in Noto v.
United States, 367 U.S. 290, 297 -298 (1961), "the mere abstract teaching . . . of the moral propriety or
even moral necessity for a resort to force and violence, is not the same as preparing a group for violent
action and steeling it to such action." See also Herndon v. Lowry, 301 U.S. 242, 259 -261 (1937); Bond v.
Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes
upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its
condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v.
United States, 354 U.S. 298 (1957); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California,
283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents,
385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary of State, 378 U.S. 500
(1964); Baggett v. Bullitt, 377 U.S. 360 (1964).
Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons
who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing
industrial or political reform"; or who publish or circulate or display any book or paper containing such
advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate
the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group
formed "to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial
judge's instructions to the jury in any way refined the statute's bald definition of the crime [395 U.S.
444, 449] in terms of mere advocacy not distinguished from incitement to imminent lawless action. 3
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. 4 Such a statute falls within the condemnation of the First and
Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported,
and that decision is therefore overruled.
Reversed.
Footnotes
[ Footnote � ] ERRATA: "omittted" should be "omitted."
[ Footnote 1 ] 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 Israel."
"Let's give them back to the dark garden."
"Save America."
"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."
110
"Nigger will have to fight for every inch he gets from now on."
[ Footnote 2 ] It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C. 2385, embodied such a
principle and that it had been applied only in conformity with it that this Court sustained the Act's
constitutionality. Dennis v. United States, 341 U.S. 494 (1951). That this was the basis for Dennis was
emphasized in Yates v. United States, 354 U.S. 298, 320 -324 (1957), in which the Court overturned
convictions [395 U.S. 444, 448] for advocacy of the forcible overthrow of the Government under the
Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to
its tendency to produce forcible action.
[ Footnote 3 ] 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 Ohio courts has brought it within constitutionally permissible limits.
The Ohio Supreme Court has considered the statute in only one previous case, State v. Kassay, 126 Ohio
St. 177, 184 N. E. 521 (1932), where the constitutionality of the statute was sustained.
[ Footnote 4 ] 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 United States v. Cruikshank, 92 U.S. 542, 552 (1876); Hague v.
CIO, 307 U.S. 496, 513 , 519 (1939); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 -461
(1958).
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 [395 U.S. 444, 450] in the interpretation of
the First Amendment. I join the Court's opinion, which, as I understand it, simply cites Dennis v. United
States, 341 U.S. 494 (1951), but does not indicate any agreement on the Court's part with the "clear and
present danger" doctrine on which Dennis purported to rely.
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.
United States, 249 U.S. 47, 52 , where the defendant was charged with attempts to cause
insubordination in the military and obstruction of enlistment. The pamphlets that were distributed
urged resistance to the draft, denounced conscription, and impugned the motives of those backing the
war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that
defense said:
111
"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." Id., at 206. And the conviction in
Frohwerk was sustained because "the circulation of the paper was [395 U.S. 444, 451] in quarters
where a little breath would be enough to kindle a flame." Id., at 209.
Debs v. United States, 249 U.S. 211 , was the third of the trilogy of the 1918 Term. Debs was convicted
of speaking in opposition to the war where his "opposition was so expressed that its natural and
intended effect would be to obstruct recruiting." Id., at 215.
"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. United States, 250 U.S. 616 , was one instance. Mr. Justice Holmes, with whom
Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts
a case for overriding the First Amendment had been made out:
"It is only the present danger of immediate evil or an intent to bring it about that warrants
Congress in 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." Id., at 628.
Another instance was Schaefer v. United States, 251 U.S. 466 , in which Mr. Justice Brandeis, joined by
Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U.S. 239 , in which again Mr.
Justice Brandeis, joined by Mr. Justice Holmes, dissented.
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. [395 U.S. 444, 452] The dissents in Abrams, Schaefer, and Pierce show how easily
"clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free
men to strive for better conditions through new legislation and new institutions" by argument and
discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the "clear and
present danger" test is congenial to the First 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. California, 274 U.S. 357 , which involved advocacy of ideas
which the majority of the Court deemed unsound and dangerous.
Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved
closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U.S. 652, 673 :
"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
112
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. [395 U.S. 444, 453]
The Court in Herndon v. Lowry, 301 U.S. 242 , overturned a conviction for exercising First Amendment
rights to incite insurrection because of lack of evidence of incitement. Id., at 259-261. And see Hartzel v.
United States, 322 U.S. 680 . In Bridges v. California, 314 U.S. 252, 261 -263, we approved the "clear and
present danger" test in an elaborate dictum that tightened it and confined it to a narrow category. But
in Dennis v. United States, 341 U.S. 494 , we opened wide the door, distorting the "clear and present
danger" test beyond recognition. 1
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.'" Id., at 509-511.
The Court sustained convictions under that charge, construing it to mean a determination of "`whether
the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is
necessary to avoid the danger.'" 2 Id., at 510, quoting from United States v. Dennis, 183 F.2d 201, 212.
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. United States,
354 U.S. 298, 318 . But an "active" member, who has a guilty knowledge and intent of the aim to
overthrow the Government [395 U.S. 444, 454] by violence, Noto v. United States, 367 U.S. 290 , may
be prosecuted. Scales v. United States, 367 U.S. 203, 228 . And the power to investigate, backed by the
powerful sanction of contempt, includes the power to determine which of the two categories fits the
particular witness. Barenblatt v. United States, 360 U.S. 109, 130 . And so the investigator roams at will
through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts.
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 the trial of those teachers of Marxism an allout 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.
113
Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court.
May he be indicted? [395 U.S. 444, 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 United States v. O'Brien, 391 U.S. 367, 382 , that a registrant under Selective
Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First
Amendment was tendered as a defense and rejected, the Court saying:
"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 U.S., at 377 -378.
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 U.S. 769, 775 (DOUGLAS, J., concurring); Giboney v. Empire
Storage Co., 336 U.S. 490, 501 ; Hughes v. Superior Court, 339 U.S. 460, 465 ; Labor Board v. Fruit
Packers, 377 U.S. 58, 77 (BLACK, J., concurring), and id., at 93 (HARLAN, J., dissenting); Cox v. Louisiana,
379 U.S. 559, 578 (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U.S. 308, 326 (DOUGLAS, J.,
concurring). That means that it can be regulated when it comes to the "plus" or "action" side of the
protest. It can be regulated as to [395 U.S. 444, 456] the number of pickets and the place and hours
(see Cox v. Louisiana, supra), because traffic and other community problems would otherwise suffer.
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 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.
114
This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S.
513, 536 -537 (DOUGLAS, J., concurring). They are indeed inseparable and a prosecution can be
launched for the overt [395 U.S. 444, 457] acts actually caused. Apart from rare instances of that kind,
speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy
of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns
on the depth of the conviction; and government has no power to invade that sanctuary of belief and
conscience. 3
[ Footnote 1 ] See McKay, The Preference For Freedom, 34 N. Y. U. L. Rev. 1182, 1203-1212 (1959).
[ Footnote 2 ] See Feiner v. New York, 340 U.S. 315 , where a speaker was arrested for arousing an
audience when the only "clear and present danger" was that the hecklers in the audience would break
up the meeting.
[ Footnote 3 ] See MR. JUSTICE BLACK, dissenting, in Communications Assn. v. Douds, 339 U.S. 382, 446 ,
449 et seq. [395 U.S. 444, 458]
115
U.S. Supreme Court
HESS v. INDIANA, 414 U.S. 105 (1973)
414 U.S. 105
HESS v. INDIANA
APPEAL FROM THE SUPREME COURT OF INDIANA
No. 73-5290.
Decided November 19, 1973
Appellant, who was arrested during an antiwar demonstration on a college campus for loudly stating,
"We'll take the fucking street later (or again)," was subsequently convicted for violating the Indiana
disorderly conduct statute. The State Supreme Court affirmed, relying primarily on the trial court's
finding that the statement "was intended to incite further lawless action on the part of the crowd in the
vicinity of appellant and was likely to produce such action." Held: Appellant's language did not fall within
any of the "narrowly limited classes of speech" that the States may punish without violating the First
and Fourteenth Amendments, and since the evidence showed that the words he used were not directed
to any person or group and there was no evidence that they were intended and likely to produce
imminent disorder, application of the statute to appellant violated his rights of free speech.
Brandenburg v. Ohio, 395 U.S. 444 . See also Terminiello v. Chicago, 337 U.S. 1, 4 .
___ Ind. ___, 297 N. E. 2d 413, reversed.
PER CURIAM.
Gregory Hess appeals from his conviction in the Indiana courts for violating the State's disorderly
conduct statute. 1 Appellant contends that his conviction should be reversed because the statute is
unconstitutionally vague, Connally v. General Construction Co., 269 U.S. [414 U.S. 105, 106] 385 (1926),
because the statute is overbroad in that it forbids activity that is protected under the First and
Fourteenth Amendments, Gooding v. Wilson, 405 U.S. 518 (1972), and because the statute, as applied
here, abridged his constitutionally protected freedom of speech, Terminiello v. Chicago, 337 U.S. 1
(1949). These contentions were rejected in the City Court, where Hess was convicted, and in the
Superior Court, which reviewed his conviction. 2 The Supreme Court of Indiana, with one dissent,
considered and rejected each of Hess' constitutional contentions, and accordingly affirmed his
conviction.
The events leading to Hess' conviction began with an antiwar demonstration on the campus of Indiana
University. In the course of the demonstration, approximately 100 to 150 of the demonstrators moved
onto a public street and blocked the passage of vehicles. When the demonstrators did not respond to
verbal directions from the sheriff to clear the street, the sheriff and his deputies began walking up the
street, and the demonstrators in their path moved to the curbs on either side, joining a large number of
spectators who had gathered. Hess was standing off the street as the sheriff passed him. [414 U.S. 105,
107] The sheriff heard Hess utter the word "fuck" in what he later described as a loud voice and
immediately arrested him on the disorderly conduct charge. It was later stipulated that what appellant
116
had said was "We'll take the fucking street later," or "We'll take the fucking street again." Two witnesses
who were in the immediate vicinity testified, apparently without contradiction, that they heard Hess'
words and witnessed his arrest. They indicated that Hess did not appear to be exhorting the crowd to go
back into the street, that he was facing the crowd and not the street when he uttered the statement,
that his statement did not appear to be addressed to any particular person or group, and that his tone,
although loud, was no louder than that of the other people in the area.
Indiana's disorderly conduct statute was applied in this case to punish only spoken words. It hardly
needs repeating that "[t]he constitutional guarantees of freedom of speech forbid the States to punish
the use of words or language not within `narrowly limited classes of speech.'" Gooding v. Wilson, supra,
at 521-522. The words here did not fall within any of these "limited classes." In the first place, it is clear
that the Indiana court specifically abjured any suggestion that Hess' words could be punished as obscene
under Roth v. United States, 354 U.S. 476 (1957), and its progeny. Indeed, after Cohen v. California, 403
U.S. 15 (1971), such a contention with regard to the language at issue would not be tenable. By the
same token, any suggestion that Hess' speech amounted to "fighting words," Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942), could not withstand scrutiny. Even if under other circumstances this
language could be regarded as a personal insult, the evidence is undisputed that Hess' statement was
not directed to any person or group in particular. Although the sheriff testified that he was offended by
the language, [414 U.S. 105, 108] he also stated that he did not interpret the expression as being
directed personally at him, and the evidence is clear that appellant had his back to the sheriff at the
time. Thus, under our decisions, the State could not punish this speech as "fighting words." Cantwell v.
Connecticut, 310 U.S. 296, 309 (1940); Cohen v. California, supra, at 20.
In addition, there was no evidence to indicate that Hess' speech amounted to a public nuisance in that
privacy interests were being invaded. "The ability of government, consonant with the Constitution, to
shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that
substantial privacy interests are being invaded in an essentially intolerable manner." Cohen v. California,
supra, at 21. The prosecution made no such showing in this case.
The Indiana Supreme Court placed primary reliance on the trial court's finding that Hess' statement "was
intended to incite further lawless action on the part of the crowd in the vicinity of appellant and was
likely to produce such action." ___ Ind. ___, ___, 297 N. E. 2d 413, 415 (1973). At best, however, the
statement could be taken as counsel for present moderation; at worst, it amounted to nothing more
than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to
punish Hess' speech. Under our decisions, "the constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). (Emphasis added.) See also
Terminiello v. Chicago, 337 U.S., at 4 . Since the uncontroverted evidence showed that Hess' statement
was not directed to any person or group of persons, it [414 U.S. 105, 109] cannot be said that he was
advocating, in the normal sense, any action. And since there was no evidence, or rational inference from
the import of the language, that his words were intended to produce, and likely to produce, imminent
disorder, those words could not be punished by the State on the ground that they had "a `tendency to
lead to violence.'" ___ Ind., at ___, 297 N. E. 2d, at 415.
Accordingly, the motion to proceed in forma pauperis is granted and the judgment of the Supreme
Court of Indiana is reversed.
117
Footnotes
[ Footnote 1 ] "Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace
and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive
behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of
disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars
[$500] to which may be added imprisonment for not to exceed one hundred eighty 180. days." Ind.
Code 35-27-2-1 (1971), Ind. Ann. Stat. 10-1510 (Supp. 1972).
[ Footnote 2 ] The State contends that Hess failed to preserve his constitutional contentions in the state
courts. But the record demonstrates that Hess moved to quash the affidavit for disorderly conduct in the
City Court on the constitutional grounds that he is asserting in this Court. The State points out that, on
appeal to the Superior Court, appellant received a trial de novo and did not again move to quash the
affidavit in that court. But the refusal of the City Court to quash the affidavit was asserted as error by
Hess on his appeal to the Superior Court, and his memorandum in support of his appeal pressed the
constitutional contentions. Since the Supreme Court of Indiana considered and resolved each of Hess'
constitutional contentions, it is apparent that it regarded Hess' actions in the state courts as sufficient
under state law to preserve his constitutional arguments on appeal.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
The Court's per curiam opinion rendered today aptly demonstrates the difficulties inherent in
substituting a different complex of factual inferences for the inferences reached by the courts below.
Since it is not clear to me that the Court has a sufficient basis for its action, I dissent.
It should be noted at the outset that the case was tried de novo in the Superior Court of Indiana upon a
stipulated set of facts, and, therefore, the record is perhaps unusually colorless and devoid of life.
Nevertheless, certain facts are clearly established. Appellant was arrested during the course of an
antiwar demonstration conducted at Indiana University in May 1970. The demonstration was of
sufficient size and vigor to require the summoning of police, and both the Sheriff's Department and the
Bloomington Police Department were asked to help university officials and police remove
demonstrators blocking doorways to a campus building. At the time the sheriff arrived, "approximately
200-300 persons" were assembled at that particular building.
The doorways eventually were cleared of demonstrators, but, in the process, two students were placed
under arrest. [414 U.S. 105, 110] This action did not go unnoticed by the demonstrators. As the
stipulation notes, "[i]n apparent response to these arrests, about 100-150 of the persons who had
gathered as spectators went into Indiana Avenue in front of Bryan Hall and in front of the patrol car in
which the two arrestees had been placed." Thus, by contrast to the majority's somewhat antiseptic
description of this massing as being "[i]n the course of the demonstration," the demonstrators' presence
in the street was not part of the normal "course of the demonstration" but could reasonably be
construed as an attempt to intimidate and impede the arresting officers. Furthermore, as the stipulation
also notes, the demonstrators "did not respond to verbal directions" from the sheriff to clear the street.
Thus, the sheriff and his deputies found it necessary to disperse demonstrators by walking up the street
directly into their path. Only at that point did the demonstrators move to the curbs.
118
The stipulation contains only one other declaration of fact: that Sheriff Thrasher arrested the appellant,
Gregory Hess, for disorderly conduct. The remainder of the stipulation merely summarizes testimony,
particularly the testimony of Sheriff Thrasher, two female witnesses (both students at Indiana
University) who were apparently part of the crowd, and Dr. Owen Thomas, a professor of English at the
university. The only "established" facts which emerge from these summaries are that "Hess was
standing off the street on the eastern curb of Indiana Avenue" and that he said, in the words of the trial
court, "We'll take the fucking street later (or again)." The two female witnesses testified, as the majority
correctly observes, that they were not offended by Hess' statement, that it was said no louder than
statements by other demonstrators, "that Hess did not appear to be exhorting the crowd to go back into
the street," that he was facing the crowd, and "that his statement [414 U.S. 105, 111] did not appear to
be addressed to any particular person or group." (Emphasis added.)
The majority makes much of this "uncontroverted evidence," but I am unable to find anywhere in the
opinion an explanation of why it must be believed. Surely the sentence "We'll take the fucking street
later (or again)" is susceptible of characterization as an exhortation, particularly when uttered in a loud
voice while facing a crowd. The opinions of two defense witnesses cannot be considered proof to the
contrary, since the trial court was perfectly free to reject this testimony if it so desired. Perhaps, as these
witnesses and the majority opinion seem to suggest, appellant was simply expressing his views to the
world at large, but that is surely not the only rational explanation.
The majority also places great emphasis on appellant's use of the word "later," even suggesting at one
point that the statement "could be taken as counsel for present moderation." The opinion continues:
"[A]t worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time."
From that observation, the majority somehow concludes that the advocacy was not directed towards
inciting imminent action. But whatever other theoretical interpretations may be placed upon the
remark, there are surely possible constructions of the statement which would encompass more or less
immediate and continuing action against the harassed police. They should not be rejected out of hand
because of an unexplained preference for other acceptable alternatives.
The simple explanation for the result in this case is that the majority has interpreted the evidence
differently from the courts below. In doing so, however, I believe the Court has exceeded the proper
scope of our review. Rather than considering the "evidence" in the light most [414 U.S. 105, 112]
favorable to the appellee and resolving credibility questions against the appellant, as many of our cases
have required, * the Court has instead fashioned its own version of events from a paper record, some
"uncontroverted evidence," and a large measure of conjecture. Since this is not the traditional function
of any appellate court, and is surely not a wise or proper use of the authority of this Court, I dissent.
[ Footnote * ] See, e. g., Glasser v. United States, 315 U.S. 60, 80 (1942). [414 U.S. 105, 113]
119
PRIOR RESTRAINTS
U.S. Supreme Court
NEAR v. STATE OF MINNESOTA EX REL. OLSON, 283 U.S. 697 (1931)
283 U.S. 697
NEAR
v.
STATE OF MINNESOTA ex rel. OLSON, Co. Atty.
No. 91.
Argued Jan. 30, 1930.
Decided June 1, 1931.
[283 U.S. 697, 699] Messrs. Weymouth Kirkland, of Chicago, Ill., and T. E. Latimer, of Minneapolis,
Minn., for appellant.
Messrs. James E. Markham, of St. Paul, Minn., and Arthur L. Markve, of Minneapolis, Minn., for appellee.
[283 U.S. 697, 701]
Mr. Chief Justice HUGHES delivered the opinion of the Court.
Chapter 285 of the Session Laws of Minnesota for the year 19251 provides for the abatement, as a
public nuisance, of a 'malicious, scandalous and defamatory news- [283 U.S. 697, 702] paper, magazine
or other periodical.' Section 1 of the act is as follows:
'Section 1. Any person who, as an individual, or as a member or employee of a firm, or
association or organization, or as an officer, director, member or employee of a corporation,
shall be engaged in the business of regularly or customarily producing, publishing or circulating,
having in possession, selling or giving away.
'(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or
'(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical,
-is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided.
'Participation in such business shall constitute a commission of such nuisance and render the
participant liable and subject to the proceedings, orders and judgments provided for in this Act.
Ownership, in whole or in part, directly or indirectly, of any such periodical, or of any stock of
interest in any corporation or organization which owns the same in whole or in part, or which
publishes the same, shall constitute such participation.
'In actions brought under (b) above, there shall be availabl the defense that the truth was
published with good motives and for justifiable ends and in such actions the plaintiff shall not
120
have the right to report (sic) to issues or editions or periodicals taking place more than three
months before the commencement of the action.'
Section 2 provides that, whenever any such nuisance is committed or exists, the county attorney of any
county where any such periodical is published or circulated, or, in case of his failure or refusal to
proceed upon written request in good faith of a reputable citizen, the Attorney General, or, upon like
failure or refusal of the latter, any citizen of the county, may maintain an action in the district court of
the county in the name of the state to enjoin [283 U.S. 697, 703] perpetually the persons committing or
maintaining any such nuisance from further committing or maintaining it. Upon such evidence as the
court shall deem sufficient, a temporary injunction may be granted. The defendants have the right to
plead by demurrer or answer, and the plaintiff may demur or reply as in other cases.
The action, by section 3, is to be 'governed by the practice and procedure applicable to civil actions for
injunctions,' and after trial the court may enter judgment permanently enjoining the defendants found
guilty of violating the act from continuing the violation, and, 'in and by such judgment, such nuisance
may be wholly abated.' The court is empowered, as in other cases of contempt, to punish disobedience
to a temporary or permanent injunction by fine of not more than $1,000 or by imprisonment in the
county jail for not more than twelve months.
Under this statute (section 1, clause (b), the county attorney of Hennepin county brought this action to
enjoin the publication of what was described as a 'malicious, scandalous and defamatory newspaper,
magazine or other periodical,' known as The Saturday Press. published by the defendants in the city of
Minneapolis. The complaint alleged that the defendants, on September 24, 1927, and on eight
subsequent dates in October and November, 1927, published and circulated editions of that periodical
which were 'largely devoted to malicious, scandalous and defamatory articles' concerning Charles G.
Davis, Frank W. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E.
Leach, the Jewish Race, the members of the grand jury of Hennepin county impaneled in November,
1927, and then holding office, and other persons, as more fully appeared in exhibits annexed to the
complaint, consisting of copies of the articles described and constituting 327 pages of the record. While
the complaint did not so allege, it [283 U.S. 697, 704] appears from the briefs of both parties that
Charles G. Davis was a special law enforcement officer employed by a civic organization, that George E.
Leach was mayor of Minneapolis, that Frank W. Brunskill was its chief of police, and that Floyd B. Olson,
the relator in this action, was county attorney.
Without attempting to summarize the contents of the voluminous exhibits attached to the complaint,
we deem it sufficient to say that the articles charged, in substance, that a Jewish gangster was in control
of gambling, bootlegging, and racketeering in Minneapolis, and that law enforcing officers and agencies
were not energetically performing their duties. Most of the charges were directed against the chief of
police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation
in graft. The county attorney was charged with knowing the existing conditions and with failure to take
adequate measures to remedy them. The mayor was accused of inefficiency and dereliction. On
member of the grand jury was stated to be in sympathy with the gangsters. A special grand jury and a
special prosecutor were demanded to deal with the situation in general, and, in particular, to investigate
an attempt to assassinate one Guilford, one of the original defendants, who, it appears from the articles,
was shot by gangsters after the first issue of th per iodical had been published. There is no question but
that the articles made serious accusations against the public officers named and others in connection
with the prevalence of crimes and the failure to expose and punish them.
121
At the beginning of the action on November 22, 1927, and upon the verified complaint, an order was
made directing the defendants to show cause why a temporary injunction should not issue and
meanwhile forbidding the defendants to publish, circulate, or have in their possession any editions of
the periodical from September [283 U.S. 697, 705] 24, 1927, to November 19, 1927, inclusive, and from
publishing, circulating or having in their possession, 'any future editions of said The Saturday Press' and
'any publication, known by any other name whatsoever containing malicious, scanadalous and
defamatory matter of the kind alleged in plaintiff's complaint herein or otherwise.'
The defendants demurred to the complaint upon the ground that it did not state facts sufficient to
constitute a cause of action, and on this demurrer challenged the constitutionality of the statute. The
district court overruled the demurrer and certified the question of constitutionality to the Supreme
Court of the state. The Supreme Court sustained the statute (174 Minn. 457, 219 N. W. 770, 58 A. L. R.
607), and it is conceded by the appellee that the act was thus held to be valid over the objection that it
violated not only the State Constitution, but also the Fourteenth Amendment of the Constitution of the
United States.
Thereupon the defendant Near, the present appellant, answered the complaint. He averred that he was
the sole owner and proprietor of the publication in question. He admitted the publication of the articles
in the issues described in the complaint, but denied that they were malicious, scandalous, or defamatory
as alleged. He expressly invoked the protection of the due process clause of the Fourteenth
Amendment. The case then came on for trial. The plaintiff offered in evidence the verified complaint,
together with the issues of the publication in question, which were attached to the complaint as
exhibits. The defendant objected to the introduction of the evidence, invoking the constitutional
provisions to which his answer referred. The objection was overruled, no further evidence was
presented, and the plaintiff rested. The defendant then rested, without offering evidence. The plaintiff
moved that the court direct the issue of a permanent injunction, and this was done. [283 U.S. 697, 706]
The district court made findings of fact, which followed the allegations of the complaint and found in
general terms that the editions in question were 'chiefly devoted to malicious, scandalous and
defamatory articles' concerning the individuals named. The court further found that the defendants
through these publications 'did engage in the business of regularly and customarily producing,
publishing and circulating a malicious, scandalous and defamatory newspaper,' and that 'the said
publication' 'under said name of The Saturday Press, or any other name, constitutes a public nuisance
under the laws of the State.' Judgment was thereupon entered adjudging that 'the newspaper, magazine
and periodical known as The Saturday Press,' as a public nuisance, 'be and is hereby abated.' The
judgment perpetually enjoined the defendants 'from producing, editing, publishing, circulating, having in
their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or
defamatory newspaper, as defined by law,' and also 'from further conducting said nuisance under the
name and title of said The Saturday Press or any other name or title.'
The defendant Near appealed from this judgment to the Supreme Court of the State, again asserting his
right under the Federal Constitution, and the judgment was affirmed upon the authority of the former
decision. 179 Minn. 40, 228 N. W. 326. With respect to the contention that the judgment went too far,
and prevented the defendants from publishing any kind of a newspaper, th cou rt observed that the
assignments of error did not go to the form of the judgment, and that the lower court had not been
asked to modify it. The court added that it saw no reason 'for defendants to construe the judgment as
restraining them from operating a newspaper in harmony with the public welfare, to which all must
yield,' that the allegations of the complaint had been [283 U.S. 697, 707] found to be true, and though
122
this was an equitable action defendants had not indicated a desire 'to conduct their business in the
usual and legitimate manner.'
From the judgment as thus affirmed, the defendant Near appeals to this Court.
This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not
unique, and raises questions of grave importance transcending the local interests involved in the
particular action. It is no longer open to doubt that the liberty of the press and of speech is within the
liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state
action. It was found impossible to conclude that this essential personal liberty of the citizen was left
unprotected by the general guaranty of fundamental rights of person and property. Gitlow v. New York,
268 U.S. 652, 666 , 45 S. CT. 625; Whitney v. California, 274 U.S. 357, 362 , 373 S., 47 S. Ct. 641; Fiske v.
Kansas, 274 U.S. 380, 382 , 47 S. Ct. 655; Stromberg v. California, 283 U.S. 359 , 51 S. Ct. 532, decided
May 18, 1931. In maintaining this guaranty, the authority of the state to enact laws to promote the
health, safety, morals, and general welfare of its people is necessarily administered. The limits of this
sovereign power must always be determined with appropriate regard to the particular subject of its
exercise. Thus, while recognizing the broad discretion of the Legislature in fixing rates to be charged by
those undertaking a public service, this Court has decided that the owner cannot constitutionally be
deprived of his right to a fair return, because that is deemed to be of the essence of ownership. Railroad
Commission Cases, 116 U.S. 307, 331 , 6 S. Ct. 334, 388, 1191; Northern Pacific Railway Company v.
North Dakota, 236 U.S. 585, 596 , 35 S. Ct. 429, L. R. A. 1917F, 1148 Ann. Cas. 1916A, 1. So, while liberty
of contract is not an absolute right, and the wide field of activity in the making of contracts is subject to
legislative supervision (Frisbie v. United States, 157 U.S. 161, 165 , 15 S. Ct. 586), this Court has held that
the power of the state stops short of interference with what are deemed [283 U.S. 697, 708] to be
certain indispensable requirements of the liberty assured, notably with respect to the fixing of prices
and wages (Tyson v. Banton, 273 U.S. 418 , 47 S. Ct. 426, 58 A. L. R. 1236; Ribnik v. McBride, 277 U.S. 350
, 48 S. Ct. 545, 56 A. L. R. 1327; Adkins v. Children's Hospital, 261 U.S. 525, 560 , 561 S., 43 S. Ct. 394, 24
A. L. R. 1238). Liberty of speech and of the press is also not an absolute right, and the state may punish
its abuse. Whitney v. California, supra; Stromberg v. California, supra. Liberty, in each of its phases, has
its history and connotation, and, in the present instance, the inquiry is as to the historic conception of
the liberty of the press and whether the statute under review violates the essential attributes of that
liberty.
The appellee insists that the equstions of the application of the statute to appellant's periodical, and of
the construction of the judgment of the trial court, are not presented for review; that appellant's sold
attack was upon the constitutionality of the statute, however it might be applied. The appellee contends
that no question either of motive in the publication, or whether the decree goes beyond the direction of
the statute, is before us. The appellant replies that, in his view, the plain terms of the statute were not
departed from in this case, and that eve n if they were, the statute is nevertheless unconstitutional
under any reasonable construction of its terms. The appellant states that he has not argued that the
temporary and permanent injunctions were broader than were warranted by the statute; he insists that
what was done was properly done if the statute is valid, and that the action taken under the statute is a
fair indication of its scope.
With respect to these contentions it is enough to say that in passing upon constitutional questions the
court has regard to substance and not to mere matters of form, and that, in accordance with familiar
principles, the state must be tested by its operation and effect. Henderson v. Mayor, 92 U.S. 259 , 268;
Bailey v. Alabama, 219 [283 U.S. 697, 709] U. S. 219, 244, 31 S. Ct. 145; United States v. Reynolds, 235
123
U.S. 133, 148 , 149 S., 35 S. Ct. 86; St. Louis Southwestern Railway Company v. Arkansas, 235 U.S. 350,
362 , 35 S. Ct. 99; Mountain Timber Company v. Washington, 243 U.S. 219, 237 , 37 S. Ct. 260, Ann. Cas.
1917D, 642. That operation and effect we think is clearly shown by the record in this case. We are not
concerned with mere errors of the trial court, if these be such, in going beyond the direction of the
statute as construed by the Supreme Court of the state. It is thus important to note precisely the
purpose and effect of the statute as the state court has construed it.
First. The statute is not aimed at the redress of individual or private wrongs. Remedies for libel remain
available and unaffected. The Statute, said the state court (174 Minn. 457, 219 N. W. 770, 772, 58 A. L.
R. 607), 'is not directed at threatened libel but at an existing business which, generally speaking, involves
more than libel.' It is aimed at the distribution of scandalous matter as 'detrimental to public morals and
to the general welfare,' tending 'to disturb the peace of the community' and 'the provoke assaults and
the commission of crime.' In order to obtain an injunction to suppress the future publication of the
newspaper or periodical, it is not necessary to prove the falsity of the charges that have been made in
the publication condemned. In the present action there was no allegation that the matter published was
not true. It is alleged, and the statute requires the allegation that the publication was 'malicious.' But, as
in prosecutions for libel, there is no requirement of proof by the state of malice in fact as distinguished
from malice inferred from the mere publication of the defamatory matter. 2 The judgment in this case
proceeded upon the mere proof of publication. The statute permits the defense, not of the truth alone,
but only that the truth was published with good motives and [283 U.S. 697, 710] for justificable ends. It
is apparent that under the statute the publication is to be regarded as defamatory if it injures
reputation, and that it is scandalous if it circulates charges of reprehensible conduct, whether criminal
or otherwise, and the publication is thus deemed to invite public reprodation and to constitute a public
scandal. The court sharply defined the purpose of the statute, bringing out the precise point, in these
words: 'There is no constitutional right to publish a fact merely because it is true. It is a matter of
common knowledge that prosecutions under the criminal libel statutes do not result in efficient
repression or suppression of the evils of scandal. Men who are the victims of such assaults seldom resort
to the courts. This is especially true if their sins are exposed and the only question relates to whether it
was done with good motive and for justifiable ends. This law is not for the protection of the person
attacked nor to punish the wrongdoer. It is for the protection of the public welfare.'
Second. The statute is directed not simply at the circulation of scandalou and defamatory statements
with regard to private citizens, but at the continued publication by newspapers and periodical of charges
against public officers of corruption, malfeasance in office, or serious neglect of duty. Such charges by
their very nature create a public scandal. They are scandalous and defamatory within the meaning of the
statute, which has its normal operation in relation to publications dealing prominently and chiefly with
the alleged derelictions of public officers. 3 [283 U.S. 697, 711] Third. The object of the statute is not
punishment, in the ordinary sense, but suppression of the offending newspaper or periodical. The
reason for the enactment, as the state court has said, is that prosecutions to enforce penal statutes for
libel do not result in 'efficient repression or suppression of the evils of scandal.' Describing the business
of publication as a public nuisance does not obscure the substance of the proceeding which the statute
authorizes. It is the continued publication of scandalous and defamatory matter that constitutes the
business and the declared muisance. In the case of public officers, it is the reiteration of charges of
official misconduct, and the fact that the newspaper or periodical is principally devoted to that purpose,
that exposes it to suppression. In the present instance, the proof was that nine editions of the
newspaper or periodical in question were published on successive dates, and that they were chiefly
devoted to charges against public officers and in relation to the prevalence and protection of crime. In
such a case, these officers are not left to their ordinary remedy in a suit for libel, or the authorities to a
124
prosecution for criminal libel. Under this statute, a publisher of a newspaper or periodical, undertaking
to conduct a campaign to expose and to censure official derelictions, and devoting his publication
principally to that purpose, must face not simply the possibility of a verdict against him in a suit or
prosecution for libel, but a determination that his newspaper or periodical is a public nuisance to be
abated, and that this abatement and suppression will follow unless he is prepared with legal evidence to
prove the truth of the charges and also to satisfy the court that, in [283 U.S. 697, 712] addition to being
true, the matter was published with good motives and for justifiable ends.
This suppression is accomplished by enjoining publication, and that restraint is the object and effect of
the statute.
Fourth. The statute not only operates to suppress the offending newspaper or periodical, but to put the
publisher under an effective censorship. When a newspaper or periodical is found to be 'malicious,
scandalous and defamatory,' and is suppressed as such, resumption of publication is punishable as a
contempt of court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed
because of the circulation of charges against public officers of official misconduct, it would seem to be
clear that the renewal of the publication of such charges would constitute a contempt, and that the
judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court
as to the character of a new publication. Whether he would be permitted again to publish matter
deemed to be derogatory to the same or other public officers would depend upon the court's ruling. In
the present instance the judgment restrained the defendants from 'publishing, circulating, having in
their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or
defamatory newspaper, as defined by law.' The law gives no definition except that covered by the words
'scandalous and defamatory,' and publications charging official misconduct are of the class. While the
court, answering the objection that the judgment was too broad, saw no reason for construing it as
restraining the defendants 'from operating a newspaper in harmony with the public welfare to which all
must yield,' and said that the defendants had not indicated 'any desire to conduct their business in the
usual and legitimate manner,' the manifest inference is that, at least with respect to a [283 U.S. 697,
713] new publication directed against official misconduct, the defendant would be held, under penalty
of punishment for contempt as provided in the statute, to a manner of publication which the court
considered to be 'usual and legitimate' and consistent with the public welfare.
If we cut through mere details of procedure, the operation and effect of the statute in substance is that
public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a
charge of conducting a business of publishing scandalous and defamatory matter-in particular that the
matter consists of charges against public officers of official dereliction-and, unless the owner or
publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true
and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed
and further publication is made punishable as a contempt. This is of the essence of consorship.
The question is whether a statute authorizing such proceedings in restraint of publication is consistent
with the conception of the liberty of the press as historically conceived and guaranteed. In determining
the extent of the constitutional protection, it has been generally, if not universally, considered that it is
the chief purpose of the guaranty to prevent previous restraints upon publication. The struggle in
England, directed against the legislative power of the licenser, resulted in renuciation of the censorship
of the press. 4 The liberty deemed to be established was thus described by Blackstone: 'The liberty of
the press is indeed essential to the nature of a free state; but this consists in laying no previous
restraints upon publications, and not in freedom from censure for criminal matter when published.
125
Every freeman has an [283 U.S. 697, 714] undoubted right to lay what sentiments he pleases before the
public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper,
mischievous or illegal, he must take the consequence of his own temerity.' 4 Bl. Com. 151, 152. See
Story on the Constitution, 1884, 1889. The distinction was early pointed out between the extent of the
freedom with respect to censorship under our constitutional system and that enjoyed in England. Here,
as Madison said, 'the great and essential rights of the people are secured against legislative as well as
against executive ambition. They are secured, not by laws paramount to prerogative, but by
constitutions paramont to laws. This security of the freedom of the press requires that it should be
exempt not only from previous restraint by the Executive, as in Great Britain, but from legislative
restraint also.' Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court said, in
Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 558, 10 Ann. Cas. 689: 'In the first place, the
main purpose of such constitutional provisions is 'to prevent all such previous restraints upon
publications as had been practiced by other governments,' and they do not prevent the subsequent
punishment of such as may be deemed contrary to the public welfare. Commonwealth v. Blanding, 3
Pick. (Mass.) 304, 313, 314 (15 Am. Dec. 214); Respublica v. Oswald, 1 Dall. 319, 325, 158. The
preliminary fredom extends as well to the false as to the true; the subsequent punishment may extend
as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if
not in all. Commonwealth v. Blanding, ubi supra; 4 Bl. Com. 150.'
The criticism upon Blackstone's statement has not been because immunity from previous restraint upon
publication has not been regarded as deserving of special emphasis, but chiefly because that immunity
cannot be deemed to exhaust the conception of the liberty guaranteed by [283 U.S. 697, 715] State
and Federal Constitutions. The point of criticism has been 'that the mere exemption from restraints
cannot be all that is secured by the constitutional provisions,' and that 'the liberty of the press might be
rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to
publish what he pleased, the public authorities might nevertheless punish him for harmless
publications.' 2 Cooley, Const. Lim. (8th Ed.) pp. 885. But it is recognized that punishment for the abuse
of the liberty accorded to the press is essential to the protection of the public, and that the common-law
rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are
not abolished by the protection extended in our Constitutions Id. pp. 883, 884. The law of criminal libel
rests upon that secure foundation. There is also the conceded authority of courts to punish for
contempt when publications directly tend to prevent the proper discharge of judicial functions.
Patterson v. Colorado, supra; Toledo Newspaper Company v. United States, 247 U.S. 402, 419 , 38 S. Ct.
560.5 In the present case, we have no occasion to inquire as to the permissible scope of subsequent
punishment. For whatever wrong the appellant has committed or may commit, by his publications, the
state appropriately affords both public and private redress by its libel laws. As has been noted, the
statute in question does not deal with punishments; it provides for no punishment, except in case of
contempt for violation of the court's order, but for suppression and injunction-that is, for restraint upon
publication.
The objection has also been made that the principle as to immunity from previous restraint is stated too
[283 U.S. 697, 716] broadly, if every such restraint is deemed to be prohibited. That is undoubtedly
true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been
recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of
peace are such a hindrance to its errort that their utterance will not be endured so long as men fignt and
that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249
U.S. 47, 52 , 39 S. Ct. 247, 249. No one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates of transports or the number
126
and location of troops. 6 On similar grounds, the primary requirements of decency may be enforced
against obscene publications. The security of the community life may be protected against incitements
to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of
free speech does not 'protect a man from an injunction against uttering words that may have all the
effect of frce. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 139 , 31 S. Ct. 492, 34 L. R. A. (N. S.)
874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now
concerned with questions as to the extent of authority to prevent publications in order to protect
private rights according to the principles governing the exercise of the jurisdiction of courts of equity. 7
The exceptional nature of its limitations places in a strong light the general conception that liberty of the
press, historically considered and taken up by the Federal Constitution, has meant, principally although
not exclusively, immunity from previous restraints or censorship. The conception of the liberty of the
press in this country had broadened with the exigencies of the colonial [283 U.S. 697, 717] period and
with the efforts to secure freedom from oppressive administration. 8 That liberty was especially
charished for the immunity it afforded from previous restraint of the publication of censure of public
officers and charges of official misconduct. As was said by Chief Justice Parker, in Commonwealth v.
Blanding, 3 Pick. (Mass.) 304, 313, 15 Am. Dec. 214, with respect to the Constitution of Massachusetts:
'Besides, it is well understood and received as a commentary on this provision for the liberty of the
press, that it was intended to prevent all such previous restraints upon publications as had been
practiced by other governments, and in early times here, to stifle the efforts of patriots towards
enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was
to be unrestrained, but he who used it was to be responsible in case of its abuse.' In the letter sent by
the Continental Congress (October 26, 1774) to the Inhabitants of Quebec, referring to the 'five grate
rights' it was said:9 'The last right we shall mention, regards the freedom of the press. The importance of
this consists, besiders the advancement of truth, science, morality, and arts in general, in its diffusion of
liberal sentiments on the administration of Government, its ready communication of thoughts between
subjects, and its consequential promotion of union among them, whereby oppressive officers are
shamed or intimidated, into more honourable and just modes of conducting affairs.' Madison, who was
the leading spirit in the preparation of the First Amendment of the Federal Constitution, thus described
the practice and sentiment which led to the guaranties of liberty of the press in State Constitutions:10
[283 U.S. 697, 718] 'In every State, probable, in the Union, the press has exerted a freedom in
canvassing the merits and measures of public men of every description which has not been confined to
the strict limits of the common law. On this footing the freedom of the press has stood; on this footing it
yet stands. ... Some degree of abuse is inseparable from the proper use of everything, and in no instance
is this more true than in that of the press. It has accordingly been decided by the practice of the States,
that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them
away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be
doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted
for all the triumphs which have been gained by reason and humanity over error and oppression; who
reflect that to the same beneficent source the United States owe much of the lights which conducted
them to the ranks of a free and independent nation, and which have improved their political system ito
a shape so auspicious to their happiness? Had 'Sedition Acts,' forbidding every publication that might
bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people
against the authors of unjust or pernicious measures, been uniformly enforced against the press, might
not the United States have been languishing at this day under the infirmities of a sickly Confederation?
Might they not, possibly, be miserable colonies, graning under a foreign yoke?'
127
The fact that for approximately one hundred and fifty years there has been almost an entire absence of
attempts to impose previous restraints upon publications relating to the malfeasance of public officers is
significant of the deep-seated conviction that such restraints would violate constitutional right. Public
officers, whose character and [283 U.S. 697, 719] conduct remain open to debate and free discussion in
the press, find their remedies for false accusations in actions under libel laws providing for redress and
punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The
general principle that the constitutional guaranty of the liberty of the press gives immunity from
previous restraints has been approved in many decisions under the provisions of state constitutions. 11
The importance of this immunity has not lessened. While reckless assaults upon public men, and efforts
to bring obloquy upon those whon are endeavoring faithfully to discharge official duties, exert a baleful
influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is
greater, and it is believed to be less, than that which characterized the period in which our institutions
took shape. Meanwhile, the administration of government has become more complex, the
opportunities for malfeasance and corruption have multiplied, crime has grown to most serious
proportions, and the danger of its protection by unfaithful officials and of the impairment of the
fundamental security of life and [283 U.S. 697, 720] property by criminal alliances and official neglect,
emphasizes the primary need of a vigilant and courageous press, expecially in great cities. The fact that
the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less
necessary the immunity of the press from previous restraint in dealing with offical misconduct.
Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with
constitutional privilege.
In attempted justification of the statute, it is said that it deals not with publcati on per se, but with the
'business' of publishing defamation. If, however, the publisher has a constitutional right to publish,
without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied
that he may publish subsequent editions for the same purpose. He does not lose his right by exercising
it. If his right exists, it may be exercised in publishing nine editions, as in this case, as well as in one
edition. If previous restraint is permissible, it may be imposed at once; indeed, the wrong may be as
serious in one publication as in several. Characterizing the publication as a business, and the business as
a nuisance, does not permit an invasion of the constitutional immunity against restraint. Similarly, it
does not matter that the newspaper or periodical is found to be 'largely' or 'chiefly' devoted to the
publication of such derelictions. If the publisher has a right, without previous restraint, to publish them,
his right cannot be deemed to be dependent upon his publishing something else, more or less, with the
matter to which objection is made.
Nor can it be said that the constitutional freedom from previous restraint is lost because charges are
made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of
municipal charters and ordinances carrying penal sanctions, the conduct of [283 U.S. 697, 721] public
officers is very largely within the purview of criminal statutes. The freedom of the press from previous
restraint has never been regarded as limited to such animadversions as lay outside the range of renal
enactments. Historically, there is no such limitation; it is inconsistent with the reason which underlies
the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be
established.
The statute in question cannot be justified by reason of the fact that the publisher is permitted to show,
before injunction issues, that the matter published is true and is published with good motives and for
justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is
128
constitutionally valid, it would be equally permissible for the Legislature to provide that at any time the
publisher of any newspaper could be brought before a court, or even an administrative officer (as the
constitutional protection may not be regarded as resting on mere procedural details), and required to
produce proof of the truth of his publication, or of what he intended to publish and of his motives, or
stand enjoined. If this can be done, the Legislature may provide machinery for determining in the
complete exercise of its discretion what are justifiable ends and restrain publication accordingly. And it
would be but a step to a complete system of censorship. The recognition of authority to impose
previous restraint upon publication in order to protect the community against the circulation of charges
of misconduct, and especially of official misconduct, necessarily would carry with it the admission of the
authority of the censor against which the constitutional barrier was erected. The preliminary freedom,
by virtue of the very reason for its existence, does not depend, as this court has said, on proof of truth.
Patterson v. Colorado, supra.
Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal
which tends [283 U.S. 697, 722] to disturb the public peace and to provoke assaults and the
commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance,
unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more
serious public evil would be caused by authority to prevent publication. 'To prohibit the intent to excite
those unfavorable sentiments against those who administer the Government, is equivalent to a
prohibition of the actual excitement of them; and to prohibit the actual excitement of them is
equivalent to a prohibition of discussions having that tendeny an d effect; which, again, is equivalent to
a protection of those who administer the Government, if they should at any time deserve the contempt
or hatrad of the people, against being exposed to it by free animadversions on their characters and
conduct.' 12 There is nothing new in the fact that charges of reprehensible conduct may create
resentment and the disposition to resort to violent means of redress, but this well-understood tendency
did not alter the determination to protect the press against censorship and restrain upon publication. As
was said in New Yorker Staats-Zeitung v. Nolan, 89 N. J. Eq. 387, 388, 105 A. 72: 'If the township may
prevent the circulation of a newspaper for no reason other than that some of its inhabitants may
violently disagree with it, and resent it circulation by resorting to physical violence, there is no limit to
what may be prohibited.' The danger of violent reactions becomes greater with effective organization of
defiant groups resenting exposure, and, if this consideration warranted legislative interference with the
initial freedom of publication, the constitutional protection would be reduced to a mere form of words.
For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause
(b) [283 U.S. 697, 723] of section 1, to be an infringement of the liberty of the press guaranteed by the
Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the
statute, without regard to the question of the truth of the charges contained in the particular periodical.
The fact that the public officers named in this case, and those associated with the charges of official
dereliction, may be deemed to be impeccable, cannot affect the conclusion that the statute imposes an
unconstitutional restraint upon publication.
Judgment reversed.
Mr. Justice BUTLER (dissenting).
The decision of the Court in this case declares Minnesota and every other state powerless to restrain by
injunction the business of publishing and circulating among the people malicious, scandalous, and
defamatory periodicals that in due course of judicial procedure has been adjudged to the a public
129
nuisance. It gives to freedom of the press a meaning and a scope not heretofore recognized, and
construes 'liberty' in the due process clause of the Fourteenth Amendment to put upon the states a
federal restriction that is without precedent.
Confessedly, the Federal Constitution, prior to 1868, when the Fourteenth Amendment was adopted,
did not protect the right of free speech of press against state action. Barron v. Baltimore, 7 Pet. 243,
250; Fox v. Ohio, 5 How. 410, 434; Smith v. Maryland, 18 How. 71, 76; Withers v. Buckley, 20 How. 84,
89-91. Up to that time the right was safeguarded solely by the Constitutions and laws of the states, and,
it may be added, they operated adequately to protect it. This court was not called on until 1925 to
decide whether the 'liberty' protected by the Fourteenth Amendment includes the right of free speech
and press. That question has been finally an- [283 U.S. 697, 724] swered in the affirmative. Cf.
Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas. 689; Prudential Ins. Co. v. Cheek,
259 U.S. 530, 538 , 543 S., 42 S. Ct. 516, 27 A. L. R. 27. See Gitlow v. New York, 268 U.S. 652 , 45 S. Ct.
625; Fiske v. Kansas, 274 U.S. 380 , 47 S. Ct. 655; Stromberg v. California, 283 U.S. 359 , 51 S. Ct. 532
The record shows, and it is conceded, that defendants' regular business was the publication of
malicious, scandalous, and defamatory articles concerning the principal public officers, leading
newspapers of the city, many private persons, and the Jewish race. It also shows that it was their
purpose at all hazards to continue to carry on the business. In every edition slanderous and defamatory
matter predominates to the practical exclusion of all else. Many of the statements are so highly
improbable as to compel a finding that they are false. The articles themselves show malice. 1 [283 U.S.
697, 725] The defendant here has no standing to assert that the statute is invalid because it might be
construed so as to violate the Constitution. His right is limited solely to [283 U.S. 697, 726] the inquiry
whether, having regard to the points properly raised in his case, the effect of applying the statute is to
deprive him of his liberty without die process of law. [283 U.S. 697, 727] This court should not reverse
the judgment below upon the ground that in some other case the statute may be applied in a way that is
repugnant to the freedom of the press protected by the Fourteenth Amendment. Castillo v. McConnico,
168 U.S. 674, 680 , 18 S. Ct. 229; Williams v. Mississippi, 170 U.S. 213, 225 , 18 S. Ct. 583; Yazoo & Miss.
R. R. v. Jackson Vinegar Co., 226 U.S. 217 , 219-220, 33 S. Ct. 40. Plymouth Coal Co. v. Pennsylvania, 232
U.S. 531 , 544-546, 34 S. Ct. 359.
This record requires the Court to consider the statute as applied to the business of publishing articles
that are in fact malicious, scandalous, and defamatory.
The statute provides that any person who 'shall be engaged in the business of regularly or customarily
producing, publishing or circulating' a newspaper, magazine or other periodical that is (a) 'obscene, lewd
and lascivious' or (b) 'malicious, scandalous and defama- [283 U.S. 697, 728] tory' is guilty of a nuisance
and may be enjoined as provided in the act. It will be observed that the qualifying words are used
conjunctively. In actions brought under (b) 'there shall be available the defense that the truth was
published with good motives and for justificable ends.'
The complaint charges that defendants were engaged in the business of regularly and customarily
publishing 'malicious, scandalous and defamatory newspapers' known as the Saturday Press, and nine
editions dated, respectively, on each Saturday commencing September 25 and ending November 19,
1927, were made a part of the complaint. These are all that were published.
On appeal from the order of the district court overruling defendants' demurrer to the complaint, the
state Supreme Court said (174 Minn. 457, 461, 219 N. W. 770, 772, 58 A. L. R. 607):
130
'The constituent elements of the declared nuisance are the customary and regular dissemination
by means of a newspaper, which finds its way into families, reaching the young as well as the
mature, of a selection of scandalous and defamatory articles treated in such a way as to excite
attention and interest so as to command circulation . ... The statute is not directed at
threatened libel but at an existing business which, generally speaking, involves more than libel.
The distribution of scandalous matter is detrimental to public morals and to the general welfare.
It tends to disturb the peace of the community. Being defamatory and malicious, it tends to
provoke assaults and the commission of crime. It has no concern with the publication of the
truth, with good motives and for justifiable ends . ... In Minnesota no agency can hush the
sincere and honest voice of the press, but our Constitution was never intended to protect
malice, scandal, and defamation when untrue or published with bad motive or without
justifiable ends. ... It was never the intention of the Constitution to afford protec- [283 U.S. 697,
729] tion to a publication devoted to scandal and defamation. ... Defendants stand before us
upon the record as being regularly and customarily engaged in a business of conducting a
newspaper sending to the public malicious, scandalous, and defamatory printed matter.'
The case was remanded to the district court.
Near's answer made no allegations to excuse or justify the business or the articles complained of. It
formally denied that the publications were malicious, scandalous, or defamatory, admitted that they
were made as alleged, and attacked the statute as unconstitutional. At the trial the plaintiff introduced
evidence unquestionably sufficient to support the complaint. The defendant offered none. The court
found the facts as alleged in the complaint and specifically that each edition 'was chiefly devoted to
malicious, scandalous and defamatory articles' and that the last edition was chiefly devoted to
malicious, scandalous, and defamatory articles concerning Leach (mayor of Minneapolis), Davis
(representative of the law enforcement league of citizens), Brunskill (chief of police), Olson (county
attorney), the Jewish race, and members of the grand jury then serving in that court; that defendants in
and through the several publications 'did thereby engage in the business of regularly and customarily
producing, publishing and circulating a malicious, scandalous and defamatory newspaper.'
Defendant Near again appealed to the Supreme Court. In its opinion ( 179 Minn. 40, 228 N. W. 326) the
court said: 'No claim is advanced that the method and character of the operation of the newspaper in
question was not a nuisance if the statute is constitutional. It was regularly and customarily devoted
largely to malicious, scandalous, and defamatory matter. ... The record presents the same questions
upon which we have already passed.' [283 U.S. 697, 730] Defendant concedes that the editions of the
newspaper complained of are 'defamatory per se.' And he says: 'It has been asserted that the
constitution was never intended to be a shield for malice, scandal, and defamation when unrue, or
published with bad motives, or for unjustificable ends. ... The contrary is true; every person does have a
constitutional right to publish malicious, scandalous, and defamatory matter though untrue, and with
bad motives, and for unjustifiable ends, in the first instance, though he is subject to responsibility
therefor afterwards.' The record, when the substance of the articles is regarded, requires that
concession here. And this Court is required to pass on the validity of the state law on that basis.
No question was raised below, and there is none here, concerning the relevancy or weight of evidence,
burden of proof, justification or other matters of defense, the scope of the judgment or proceedings to
enforce it, or the character of the publications that may be made notwithstanding the injunction.
131
There is no basis for the suggestion that defendants may not interpose any defense or introduce any
evidence that would be open to them in a libel case or that malice may not be negatived by showing
that the publication was made in good faith in belief of its truth or that at the time and under the
circumstances it was justified as a fair comment on public affairs or upon the conduct of public officers
in respect of their duties as such. See Mason's Minnesota States 1927, 10112, 10113.
The scope of the judgment is not reviewable here. The opinion of the state Supreme Court shows that it
was not reviewable there because defendants' assignments of error in that court did not go to the form
of the judgment and because the lower court had not been asked to modify the judgment. [283 U.S.
697, 731] The act was passed in the exertion of the state's power of police, and this court is by wellestablished rule required to assume, until the contrary is clearly made to appear, that there exists in
Minnesota a state of affairs that justifies this measure for the preservation of the peace and good order
of the state. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 79 , 31 S. Ct. 337, Ann. Cas. 1912C, 160;
Gitlow v. New York, supra, 268 U.S. 668 -669, 45 S. Ct. 625; Corporation Commission v. Lowe, 281 U.S.
431, 438 , 50 S. Ct. 397; O'Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 , 257-258, 51 S. Ct. 130.
The publications themselves disclose the need and propriety of the legislation. They show:
In 1913 one Guilford, originally a defendant in this suit, commenced the publication of a scandal sheet
called the Twin City Reporter. In 1916 Near joined him in the enterprise, later bought him out, and
engaged the services of the Bevans. In 1919 Bevans acquired Near's interest, and has since, alone or
with others, continued the publication. Defendants admit that they published some reprehensible
articles in the Twin City Reporter, deny that they personally used it for blackmailing purposes, admit
that, by reason of their connection with the paper, their reputation did become tainted, and state that
Bevans, while so associated with Near, did use the paper for blackmailing purposes. And Near says it was
for that reason he sold his interest to Bevans.
In a number of the editions, defendants charge that, ever since Near sold his interest to Bevans in 1919,
the Twin City Reporter has been used for blackmail, to dominate public gambling and other criminal
activities, and as well to exert a kind of control over public officers and the government of the city.
The articles in question also state that, when defendants announced their intention to publish the
Saturday Press, they were threatened, and that soon after the first pub- [283 U.S. 697, 732] lication
Guilford was waylaid and shot down before he could use the firearm which he had at hand for the
purpose of defending himself against anticipated assaults. It also appears that Near apprehended
violence and was not unprepared to repel it. There is much more of like significance.
The long criminal career of the Twin City Reporter-if it is in fact as described by defendants-and the
arming and shooting ariing out of the publication of the Saturday Press, serve to illustrate the kind of
conditions in respect of the business of publishing malicious, scandalous, and defamatory periodicals by
which the state Legislature presumably was moved to enact the law in question. It must be deemed
appropriate to deal with conditions existing in Minnesota.
It is of the greatest importance that the states shall be untrammeled and free to employ all just and
appropriate measures to prevent abuses of the liberty of the press.
132
In his work on the Constitution (5th Ed.) Justice Story, expounding the First Amendment which declares:
'Congress shall make no law ... abridging the freedom of speech, or of the press' said (section 1880):
'That this amendment was intended to secure to every citizen an absolute right to speak, or
write, or print whatever he might please, without any responsibility, public or private, therefor,
is a supposition too wild to be indulged by any rational man. This would be to allow to every
citizen a right to destroy at his pleasure the reputation, the peace, the property, and even the
personal safety of every other citizen. A man might, out of mere malice and revenge, accuse
another of the most infamous crimes; might excite against him the indignation of all his fellowcitizens by the most atrocious calumnies; might disturb, nay, overturn, all his domestic peace,
and embitter his parental affections; might inflict the most distressing punishments upon the
weak, the timid, and the inno- [283 U.S. 697, 733] cent; might prejudice all a man's civil, and
political, and private rights; and might stir up sedition, rebellion, and treason even against the
government itself, in the wantonness of his passions or the corruption of his heart. Civil society
could not go on under such circumstances. Men would then be obliged to resort to private
vengenance to make up for the deficiencies of the law; and assassination and savage cruelties
would be perpetrated with all the frequency belonging to barbarous and brutal communities. It
is plain, then, that the language of this amendment imports no more than that every man shall
have a right to speak, write, and print his opinions upon any subject whatsoever, without any
prior restraint, so always that he does not injure any other person in his rights, person, property,
or reputation; and so always that he does not thereby disturb the public peace, or attempt to
subvert the government. It is neither more nor less than an expansion of the great doctrine
recently brought into operation in the law of libel, that every man shall be at liberty to publish
what is true, with good motives and for justifiable ends. And with this reasonable limitation it is
not only right in itself, but it is an inestimable privilege in a free government. Without such a
limitation, it might become the scourge of the republic, first denouncing the principles of liberty,
and then, by rendering the most virtuous patriots odious through the terrors of the press,
introducing despotism in its worst form.' (Italicizing added.)
The Court quotes Blackstone in support of its condemnation of the statute as imposing a previous
restraint upon publication. But the previous restraints referred to by him subjected the press to the
arbitrary will of an administrative officer. He describes the practice ( book IV, p. 152): 'To subject the
press to the restrictive power of a licenser, as was formerly done, both before and since the revolution,
(of 1688) is to subject all free- [283 U.S. 697, 734] dom of sentiment to the prejudices of one man, and
make him the arbitrary and infallible judge of all controverted points in learning, religion, and
government.' 2
Story gives the history alluded to by Blackstone (section 1882):
'The art of printing soon after its introduction, unless previously approved by proper well in
England as in other countries, as merely a matter of state, and subject to the coercion of the
crown. It was, therefore, regulated in England by the king's proclamations, prohibitions, charters
of privilege, and licenses, and finally by the decrees of the Court of Star-Chamber, which limited
the number of printers and of presses which each should employ, and prohibited new
publications, unless priviously approved by proper licensers. On the demolition of this odious
jurisdiction, in 1641, the Long Parliament of Charles the First, after their rupture with that
prince, assumed the same powers which the Star-Chamber exercised with respect to licensing
books; and during the Commonwealth (such is human frailty and the love of power even in
133
republics!) they issued their ordinances for that purpose, founded principally upon a StarChamber decree of 1937. After the restoration of Charles the Second, a statute on the same
subject was passed, copied, with some few alterations, from the parliamentary ordinances. The
act expired in 1679, and was revived and continued for a few years after the revolution of 1688.
Many attempts were made by the government to keep it in force; but it was [283 U.S. 697, 735]
so strongly resisted by Parliament that it expired in 1694, and has never since been revived.'
It is plain that Blackstone taught that under the common law liberty of the press means simply the
absence of restraint upon publication in advance as distinguished from liability, civil or criminal, for
libelous or improper matter so published. And, as above shown, Story defined freedom of the press
guaranteed by the First Amendment to mean that 'every man shall be at liberty to publish what is true,
with good motives and for justifiable ends.' His statement concerned the definite declaration of the First
Amendment. It is not suggested that the freedom of press included in the liberty protected by the
Fourteenth Amendment, which was adopted after Story's definition, is greater than that protected
against congressional action. And see 2 Cooley's Constitutional Limitations (8th Ed.) p. 886; 2 Kent's
Commentaries (14th Ed.) Lect. XXIV, p. 17.
The Minnesota statute does not operate as a previous restraint on publication within the proper
meaning of that phrase. It does not authorize administrative control in advance such as was formerly
exercised by the licensers and censors, but prescribes a remedy to be enforced by a suit in equity. In this
case there was previous publication made in the course of the business of regularly producing malicious,
scandalous, and defamatory periodicals. The business and publications unquestionably constitute an
abuse of the right of free press. The statute denounces the things done as a nuisance on the ground, as
stated by the state Supreme Court, that they threaten morals, peace, and good order. There is no
question of the power of the state to denounce such transgressions. The restraint authorized is only in
respect of continuing to do what has been duly adjudged to constitute a nuisance. The controlling words
are: 'All persons guilty of such nuisance may be enjoined, as here- [283 U.S. 697, 736] inafter provided.
... Whenever any such nuisance is committed ... an action in the name of the State' may be brought 'to
perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance,
from further committing, conducting, or maintaining any such nuisance . ... The court may make its
order and judgment permanently enjoining ... defendants found guilty ... from further committing or
continuing the acts prohibited hereby, and in and by such judgment, such nuisance may be wholly
abated. ...' There is nothing in the statute3 purporting to prohibit publications that have not been
adjudged to constitute a nuisance. It is fancful to suggest similarity between the granting or
enforcement of the decree authorized by this statute to prevent further publication of malicious,
scandalous, and defamatory articles and the previous restraint upon the press by licensers as referred to
by Blackstone and described in the history of the times to which he alludes. [283 U.S. 697, 737] The
opinion seems to concede that under clause (a) of the Minnesota law the business of regularly
publishing and circulating an obscene periodical may be enjoined as a nuisance. It is difficult to perceive
any distinction, having any relation to constitutionality, between clause (a) and clause (b) under which
this action was brought. Both nuisances are offensive to morals, order, and good government. As that
resulting from lewd publications constitutionally may be enjoined, it is hard to understand why the one
resulting from a regular business of malicious defamation may not.
It is well known, as found by the state Supreme Court, that existing libel laws are inadequate effectively
to suppress evils resulting from the kind of business and publications that are shown in this case. The
doctrine that measures such as the one before us are invalid because they operate as revious restraints
to infringe freedom of press exposes the peace and good order of every community and the business
134
and private affairs of every individual to the constant and protracted false and malicious [283 U.S. 697,
738] assaults of any insolvent publisher who may have purpose and sufficient capacity to contrive and
put into effect a scheme or program for oppression, blackmail or extortion.
The judgment should be affirmed.
Mr. Justice VAN DEVANTER, Mr. Justice McREYNOLDS, and Mr. Justice SUTHERLAND concur in this
opinion.
Footnotes
[ Footnote 1 ] Mason's Minnesota Statutes, 1927, 10123-1 to 10123-3.
[ Footnote 2 ] Mason's Minn. Stats. 1927, 10112, 10113; State v. Shippman, 83 Minn. 441, 445, 86 N. W.
431; State v. Minor, 163 Minn. 109, 110, 203 N. W. 596.
[ Footnote 3 ] It may also be observed that in a prosecution for libel the applicable Minnesota statute
(Mason's Minn. Stats. 1927, 10112, 10113) provides that the publication is justified 'whenever the
matter charged as libelous is true and was published with good motives and for justificable ends,' and
also 'is excused when honestly made, in belief of its truth, and upon reasonable grounds for such belief,
and consists of fair comments upon the conduct of a person in respect of public affairs.' The clause last
mentioned is not found in the statute in question.
[ Footnote 4 ] May, Constitutional History of England, vol. 2, c. IX, p. 4; De Lolme, Commentaries on the
Constitution of England, c. IX, pp. 318, 319.
[ Footnote 5 ] See Huggonson's Case, 2 Atk. 469; Respublica v. Oswald, 1 Dall. 319; Cooper v. People, 13
Colo. 337, 373, 22 P. 790, 6 L. R. A. 430; Nebraska v. Rosewater, 60 Neb. 438, 80 N. W. 353; State v.
Tugwell, 19 Wash. 238, 52 P. 1056, 43 L. R. A. 717; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; Storey
v. People, 79 Ill. 45, 22 Am. Rep. 158; State v. Circuit Court, 97 Wis. 1, 72 N. W. 193, 38 L. R. A. 554, 65
Am. St. Rep. 90.
[ Footnote 6 ] Chafee, Freedom of Speech, p. 10.
[ Footnote 7 ] See 29 Harvard Law Review, 640.
[ Footnote 8 ] See Duniway 'The Development of Freedom of the Press in Massachusetts,' p. 123;
Bancroft's History of the United States, vol. 2, 261.
[ Footnote 9 ] Journal of the Continental Congress (1904 Ed.) vol. I, pp. 104, 108.
[ Footnote 10 ] Report on the Virginia Resolutions, Madison's Works, vol. iv, 544.
[ Footnote 11 ] Dailey v. Superior Court, 112 Cal. 94, 98, 44 P. 458, 32 L. R. A. 273, 53 Am. St. Rep. 160;
Jones, Varnum & Co. v. Towsend's Adm'x, 21 Fla. 431, 450, 58 Am. Rep. 676; State ex rel. Liversey v.
Judge, 34 La. Ann. 741, 743; Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313, 15 Am. Dec. 214;
Lindsay v. Montana Federation of Labor, 37 Mont. 264, 275, 277, 96 P. 127, 18 L. R. A. (N. S.) 707. 127
135
Am. St. Rep. 722; Howell v. Bee Publishing Co., 100 Neb. 39, 42, 158 N. W. 358, L. R. A. 1917A, 160, Ann.
Cas. 1917D, 655; New Yorker Staats-Zeitung v. Nolan, 89 N. J. Eq. 384, 105 A. 72; Brandreth v. Lance, 8
Paige (N. Y.) 24, 34 Am. Dec. 368; New York Juvenile Guardian Society v. Roosevelt, 7 Daly (N. Y.) 188;
Ulster Square Dealer v. Fowler, 58 Misc. Rep. 325, 111 N. Y. S. 16; Star Co. v. Brush, 103 Misc. Rep. 631,
170 N. Y. S. 987; Id., 104 Misc. Rep. 404, 172 N. Y. S. 320; Id., 185 App. Div. 261, 172 N. Y. S. 851; Dopp v.
Doll, 9 Ohio Dec. 428; Respublica v. Oswald, 1 Dall. 319, 325; Respublica V. Dennie, 4 Yeates (Pa.) 267,
269, 2 Am. Dec. 402; Ex parte Neill, 32 Tex. Cr. R. 275, 22 S. W. 923, 40 Am. St. Rep. 776; Mitchell v.
Grand Lodge, 56 Tex Civ. App. 306, 309, 121 S. W. 178; Sweeney v. Baker, 13 W. Va. 158, 182, 31 Am.
Rep. 757; Citizens Light, Heat & Power Co. v. Montgomery Light & Water Co. (C. C.) 171 F. 553, 556;
Willis v. O'Connell (D. C.) 231 F. 1004, 1010; Dearborn Publishing Co. v. Fitzgerald (D. C.) 271 F. 479, 485.
[ Footnote 12 ] Madison, op. cit. p. 549.
[ Footnote 1 ] The following articles appear in the last edition published, dated November 19, 1927:
'FACTS NOT THEORIES.
"I am a bosom friend of Mr. Olson,' snorted a gentleman of Yiddish blood, 'and I want to protest
against your article,' and blah, blah, blah, ad infinitum, ad nauseam.
'I am not taking orders from men of Barnett faith, at least right now. There have been too many
men in this city and especially those in official life, who HAVE been taking orders and
suggestions from JEW GANGSTERS, therefore we HAVE Jew Gangters, practically ruling
Minneapolis.
'It was buzzards of the Barnett stripe who shot down my buddy. It was Barnett gunmen who
staged the assault on Samuel Shapiro. It is Jew thugs who have 'pulled' practically every robbery
in this city. It was a member of the Barnett gang who shot down George Rubenstein (Ruby)
while he stood in the shelter of Mose Barnett's ham-cavern on Hennepin avenue. It was Mose
Barnett himself who shot down Roy Rogers on Hennepin avenue. It was at Mose Barnett's place
of 'business' that the '13 dollar Jew' found a refuge while the police of New York were combing
the country for him. It was a gang of Jew gunmen who boasted that for five hundred dollars they
would kill any man in the city. It was Mose Barnett, a
Jew, who boasted that he held the chief of police of Minnoapolis in his hand-had bought and paid for
him.
'It is Jewish men and women-pliant tools of the Jew gangster, Mose Barnett, who stand charged
with having falsified the election records and returns in the Third ward. And it is Mose Barnett
himself, who, indicted for his part in the Shapiro assault, is a fugitive from justice today.
'Practically every vendor of vile hooch, every owner of a moonshine still, every snake-faced
gangster and exbryonic yegg in the Twin Cities is a JEW.
'Having these examples before me, I feel that I am justified in my refusal to take orders from a
Jew who boasts that he is a 'bosom friend' of Mr. Olson.
'I find in the mail at least twice per week, letters from gentlemen of Jewish faith who advise me
against 'launching an attack on the Jewish people.' These gentlemen have the cart before the
house. I am launching, nor is Mr. Guilford, no attack against any race, BUT:
'When I find men of a certain race banding themselves together for the purpose of preying upon
Gentile or Jew; gunmen, KILLERS, roaming our streets shooting down men against whom they
have no personal grudge (or happen to have); defying OUR laws; corrupting OUR officials;
assaulting business men; beating up unarmed citizens; spreading a reign of terror through every
136
walk of life, then I say to you in all sincerity, that I refuse to back up a single step from that
'issue'-if they choose to make it so.
'If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I
rightfully calls 'Jews' they can easily do so BY THEMSELVES CLEANING HOUSE.
'I'm not out to cleanse Israel of the filth that clings to Israel's skirts. I'm out to 'hew to the line,
let the chips fly where they may.'
'I simply state a fact when I say that ninety per cent of the crimes committed against society in
this city are committed by Jew gangsters.
'It was a Jew who employed JEWS to shoot down Mr. Guilford. It was a Jew who employed a Jew
to intimidate Mr. Shapiro
and a Jew who employed JEWS to assault that gentleman when he refused to yield to their threats. It
was a JEW who wheedled or employed Jews to manipulate the election records and returns in the Third
ward in flagrant violation of law. It was a Jew who left two hundred dollars with another Jew to pay to
our chief of police just before the last municipal election, and:
'It is Jew, Jew, as long as one cares to comb over the records.
'I am launching no attack against the Jewish people AS A RACE. I am merely calling attention to a
FACT. And if the people of that race and faith with to rid themselvs of the odium and stigma THE
RODENTS OF THEIR OWN RACE HAVE BROUGHT UPON THEM, they need only to step to the
front and help the decent citizens of Minneapolis rid the city of these criminal Jews.
'Either Mr. Guilford or myself stand ready to do battle for a MAN, regardless of his race, color or
creed, but neither of us will step one inch out of our chosen path to avoid a fight IF the Jews
want to battle.
'Both of use have some mighty loyal friends among the Jewish people but not one of them
comes whining to ask that we 'lay off' criticism of Jewish gangsters and none of them who
comes carping to us of their 'bosom friendship' for any public official now under our journalistic
guns.'
'GIL'S (Guilford's) CHATTERBOX.
'I headed into the city on September 26th, ran across three Jews in a Chrevolet; stopped a lot of
lead and won a bed for myself in St. Barnabas Hospital for six weeks. ...
'Whereupon I have withdrawn all allegiance to anything with a hook nose that east herring. I
have adopted the sparrow as my national bird unit Davis' law enforcement league or the K. K. K.
hammers the eagle's beak out straight. So if I seem to act crazy as I ankle down the street, bear
in mind that I am merely saluting MY national emblem.
'All of which has nothing to do with the present whereabouts of Big Mose Barnett. Methinks he
headed the local delegation to the new Palestine- for-Jews-only. He went ahead of the boys so
he could do a little fixing with the Yiddish chief of police and get his twenty-five per cent of the gambling
take-off. Boys will be boys and 'ganefs' will be ganefs.'
GRAND JURIES AND DITTO.
'There are grand juries, and there are grand juries. The last one was a real grand jury. It acted.
The present one is like the scion who is labelled 'Junior.' That means not so good. There are a
few mighty good folks on it-there are some who smell bad. One petty peanut polician whose
graft was almost pitiful in its size when he was a public official, has already shot his mouth off in
137
several places. He is establishing his alibi in advance for what he intends to keep from taking
place.
'But George, we won't bother you. (Meaning a grand juror.) We are aware that the gambling
syndicate was waiting for your body to convene before the big crap game opened again. The
Yids has your dimensions, apparently, and we always go by the judgment of a dog in appraising
people.
'We will call for a special grand jury and a special prosecutor within a short time, as soon as half
of the staff can navigate to advantage, and then we'll show you what a real grand jury can do.
Up to the present we have been merely tapping on the window. Very soon we shall start
smashing glass.'
[ Footnote 2 ] May, Constitutional History of England, c. 1X. Duniway, Freedom of the Press in
Massachusetts, cc. I and II; Cooley, Constitutional Limitations (8th Ed.) vol. II, pp. 880, 881; Pound,
Equitable Relief against Defamation, 29 Harv. L. Rev. 640, 650, et seq.; Madison, Letters and Other
Writings (1865 Ed.) Vol. IV, pp. 542, 543; Respublica v. Oswald, 1 Dall. 319; Rawle, A iew of the
Constitution (2d Ed. 1829) p. 124; Paterson, Liberty of the Press, c. III.
[ Footnote 3 ] 1. Any person who, as an individual, or as a member or employee of a firm, or association
or organization, ganization, or as an officer, director, member or employee of a corporation, shall be
engaged in the business of regularly or customarily producing, publishing or circulating, having in
possession, selling or giving away.
(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or
(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical, is guilty of a
nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided. ...
In actions brought under (b) above, there shall be available the defense that the truth was published
with good motives and for justifiable ends and in such actions the plaintiff shall not have the right to
report ( resort) to issues or editions of periodicals taking place more than three months before the
commencement of the action.
2. Whenever any such nuisance is committed or is kept, maintained, or exists, as above provided for, the
County Attorney of any county where any such periodical is published or circulated ... may commence
and maintain in the District Court of said county, an action in the name of the State of Minnesota ... to
perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance,
from further committing, conducting, or maintaining any such nuisance. ...
3. The action may be brought to trial and tried as in the case of other actions in such District Court, and
shall be governed by the practice and procedure applicable to civil actions for injunctions.
After trial the court may make its order and judgment permanently enjoining any and all defendants
found guilty of violating this act from further committing or continuing the acts prohibited hereby, and
in and by such judgment, such nuisance may be wholly abated.
138
The court may, as in other cases of contempt, at any time punish, by fine of not more than $1,000, or by
imprisonment in the county jail for not more than twelve months, any person or persons violating any
injunction, temporary or permanent, made or issued pursuant to this act. Laws Minn. 1925, c. 285.
139
U.S. Supreme Court
NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)
403 U.S. 713
NEW YORK TIMES CO. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 1873.
Argued June 26, 1971
Decided June 30, 1971 *
[ Footnote * ] Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the
United States Court of Appeals for the District of Columbia Circuit.
The United States, which brought these actions to enjoin publication in the New York Times and in the
Washington Post of certain classified material, has not met the "heavy burden of showing justification
for the enforcement of such a [prior] restraint."
No. 1873, 444 F.2d 544, reversed and remanded; No. 1885, ___ U.S. App. D.C. ___, 446 F.2d 1327,
affirmed.
Alexander M. Bickel argued the cause for petitioner in No. 1873. With him on the brief were William E.
Hegarty and Lawrence J. McKay.
Solicitor General Griswold argued the cause for the United States in both cases. With him on the brief
were Assistant Attorney General Mardian and Daniel M. Friedman.
William R. Glendon argued the cause for respondents in No. 1885. With him on the brief were Roger A.
Clark, Anthony F. Essaye, Leo P. Larkin, Jr., and Stanley Godofsky.
Briefs of amici curiae were filed by Bob Eckhardt and Thomas I. Emerson for Twenty-Seven Members of
Congress; by Norman Dorsen, Melvin L. Wulf, Burt Neuborne, Bruce J. Ennis, Osmond K. Fraenkel, and
Marvin M. Karpatkin for the American Civil Liberties Union; and by Victor Rabinowitz for the National
Emergency Civil Liberties Committee. [403 U.S. 713, 714]
PER CURIAM.
We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and
the Washington Post from publishing the contents of a classified study entitled "History of U.S. DecisionMaking Process on Viet Nam Policy." Post, pp. 942, 943.
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also
Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of
showing justification for the imposition of such a restraint." Organization for a Better Austin v.
Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the
140
New York Times case and the District Court for the District of Columbia and the Court of Appeals
for the District of Columbia Circuit in the Washington Post case held that the Government had
not met that burden. We agree.
The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order
of the Court of Appeals for the Second Circuit is reversed and the case is remanded with directions to
enter a judgment affirming the judgment of the District Court for the Southern District of New York. The
stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.
So ordered.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
I adhere to the view that the Government's case against the Washington Post should have been
dismissed and that the injunction against the New York Times should have been vacated without oral
argument when the cases were first presented to this Court. I believe [403 U.S. 713, 715] that every
moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible,
and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely
that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and
reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my
Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently
willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a
shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights,
including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the
founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean
what it says, but rather means that the Government can halt the publication of current news of vital
importance to the people of this country.
In seeking injunctions against these newspapers and in its presentation to the Court, the Executive
Branch seems to have forgotten the essential purpose and history of the First Amendment. When the
Constitution was adopted, many people strongly opposed it because the document contained no Bill of
Rights to safeguard certain basic freedoms. 1 They especially feared that the [403 U.S. 713, 716] new
powers granted to a central government might be interpreted to permit the government to curtail
freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James
Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe
and beyond the power of government to abridge. Madison proposed what later became the First
Amendment in three parts, two of which are set out below, and one of which proclaimed: "The people
shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the
freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." 2 (Emphasis added.)
The amendments were offered to curtail and restrict the general powers granted to the Executive,
Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed
the original Constitution into a new charter under which no branch of government could abridge the
people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some
members of the Court appear to agree that the general powers of the Government adopted in the
original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of
the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other
Framers of the First Amendment, able men [403 U.S. 713, 717] that they were, wrote in language they
earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the
freedom . . . of the press . . . ." Both the history and language of the First Amendment support the view
141
that the press must be left free to publish news, whatever the source, without censorship, injunctions,
or prior restraints.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve the governed, not the governors. The
Government's power to censor the press was abolished so that the press would remain forever free to
censure the Government. The press was protected so that it could bare the secrets of government and
inform the people. Only a free and unrestrained press can effectively expose deception in government.
And paramount among the responsibilities of a free press is the duty to prevent any part of the
government from deceiving the people and sending them off to distant lands to die of foreign fevers and
foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the
New York Times, the Washington Post, and other newspapers should be commended for serving the
purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to
the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they
would do.
The Government's case here is based on premises entirely different from those that guided the Framers
of the First Amendment. The Solicitor General has carefully and emphatically stated:
"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I
certainly respect it. You say that no law means no law, and that should be obvious. I can only
[403 U.S. 713, 718] say, Mr. Justice, that to me it is equally obvious that `no law' does not mean
`no law', and I would seek to persuade the Court that is true. . . . [T]here are other parts of the
Constitution that grant powers and responsibilities to the Executive, and . . . the First
Amendment was not intended to make it impossible for the Executive to function or to protect
the security of the United States." 3
And the Government argues in its brief that in spite of the First Amendment, "[t]he authority of the
Executive Department to protect the nation against publication of information whose disclosure would
endanger the national security stems from two interrelated sources: the constitutional power of the
President over the conduct of foreign affairs and his authority as Commander-in-Chief." 4
In other words, we are asked to hold that despite the First Amendment's emphatic command, the
Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news
and abridging freedom of the press in the name of "national security." The Government does not even
attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching
contention that the courts should take it upon themselves to "make" a law abridging freedom of the
press in the name of equity, presidential power and national security, even when the representatives of
the people in Congress have adhered to the command of the First Amendment and refused to make
such a law. 5 See concurring opinion of MR. JUSTICE DOUGLAS, [403 U.S. 713, 719] post, at 721-722. To
find that the President has "inherent power" to halt the publication of news by resort to the courts
would wipe out the First Amendment and destroy the fundamental liberty and security of the very
people the Government hopes to make "secure." No one can read the history of the adoption of the
First Amendment without being convinced beyond any doubt that it was injunctions like those sought
here that Madison and his collaborators intended to outlaw in this Nation for all time.
The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the
fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at
the expense of informed representative government provides no real security for our Republic. The
142
Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of
the English and Colonial governments, sought to give this new society strength and security by providing
that freedom of speech, press, religion, and assembly should not be abridged. This thought was
eloquently expressed in 1937 by Mr. Chief Justice Hughes - great man and great Chief Justice that he
was - when the Court held a man could not be punished for attending a meeting run by Communists.
"The greater the importance of safeguarding the community from incitements to the overthrow
of our institutions by force and violence, the more imperative is the need to preserve inviolate
the constitutional rights of free speech, free press and free [403 U.S. 713, 720] assembly in
order to maintain the opportunity for free political discussion, to the end that government may
be responsive to the will of the people and that changes, if desired, may be obtained by
peaceful means. Therein lies the security of the Republic, the very foundation of constitutional
government." 6
Footnotes
[ Footnote 1 ] In introducing the Bill of Rights in the House of Representatives, Madison said: "[B]ut I
believe that the great mass of the people who opposed [the Constitution], disliked it because it did not
contain effectual provisions against the encroachments on particular rights . . . ." 1 Annals of Cong. 433.
Congressman Goodhue added: "[I]t is the wish of many of our constituents, that something should be
added to the Constitution, to secure in a stronger manner their liberties from the inroads of power." Id.,
at 426.
[ Footnote 2 ] The other parts were:
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any
national religion be established, nor shall the full and equal rights of conscience be in any
manner, or on any pretext, infringed."
"The people shall not be restrained from peaceably assembling and consulting for their common
good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their
grievances." 1 Annals of Cong. 434.
[ Footnote 3 ] Tr. of Oral Arg. 76.
[ Footnote 4 ] Brief for the United States 13-14.
[ Footnote 5 ] Compare the views of the Solicitor General with those of James Madison, the author of
the First Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison
said: "If they [the first ten amendments] are incorporated into the Constitution, [403 U.S. 713, 719]
independent tribunals of justice will consider themselves in a peculiar manner the guardians of those
rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or
Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in
the Constitution by the declaration of rights." 1 Annals of Cong. 439.
[ Footnote 6 ] De Jonge v. Oregon, 299 U.S. 353, 365 .
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
143
While I join the opinion of the Court I believe it necessary to express my views more fully.
It should be noted at the outset that the First Amendment provides that "Congress shall make no law . . .
abridging the freedom of speech, or of the press." That leaves, in my view, no room for governmental
restraint on the press. 1
There is, moreover, no statute barring the publication by the press of the material which the Times and
the Post seek to use. Title 18 U.S.C. 793 (e) provides that "[w]hoever having unauthorized possession of,
access to, or control over any document, writing . . . or information relating to the national defense
which information the possessor has reason to believe could be used to the injury of the United States
or to the advantage of any foreign nation, willfully communicates . . . the same to any person not
entitled to receive it . . . [s]hall be fined [403 U.S. 713, 721] not more than $10,000 or imprisoned not
more than ten years, or both."
The Government suggests that the word "communicates" is broad enough to encompass publication.
There are eight sections in the chapter on espionage and censorship, 792-799. In three of those eight
"publish" is specifically mentioned: 794 (b) applies to "Whoever, in time of war, with intent that the
same shall be communicated to the enemy, collects, records, publishes, or communicates . . . [the
disposition of armed forces]."
Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs of defense
installations.
Section 798 relating to cryptography applies to whoever: "communicates, furnishes, transmits, or
otherwise makes available . . . or publishes" the described material. 2 (Emphasis added.)
Thus it is apparent that Congress was capable of and did distinguish between publishing and
communication in the various sections of the Espionage Act.
The other evidence that 793 does not apply to the press is a rejected version of 793. That version read:
"During any national emergency resulting from a war to which the United States is a party, or from
threat of such a war, the President may, by proclamation, declare the existence of such emergency and,
by proclamation, prohibit the publishing or communicating of, or the attempting to publish or
communicate any information relating to the national defense which, in his judgment, is of such
character that it is or might be useful to the [403 U.S. 713, 722] enemy." 55 Cong. Rec. 1763. During the
debates in the Senate the First Amendment was specifically cited and that provision was defeated. 55
Cong. Rec. 2167.
Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore
preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. 793 states in 1 (b)
that:
"Nothing in this Act shall be construed to authorize, require, or establish military or civilian
censorship or in any way to limit or infringe upon freedom of the press or of speech as
guaranteed by the Constitution of the United States and no regulation shall be promulgated
hereunder having that effect." 64 Stat. 987.
144
Thus Congress has been faithful to the command of the First Amendment in this area.
So any power that the Government possesses must come from its "inherent power."
The power to wage war is "the power to wage war successfully." See Hirabayashi v. United States, 320
U.S. 81, 93 . But the war power stems from a declaration of war. The Constitution by Art. I, 8, gives
Congress, not the President, power "[t]o declare War." Nowhere are presidential wars authorized. We
need not decide therefore what leveling effect the war power of Congress might have.
These disclosures 3 may have a serious impact. But that is no basis for sanctioning a previous restraint
on [403 U.S. 713, 723] the press. As stated by Chief Justice Hughes in Near v. Minnesota, 283 U.S. 697,
719 -720:
"While reckless assaults upon public men, and efforts to bring obloquy upon those who are
endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the
severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is
believed to be less, than that which characterized the period in which our institutions took
shape. Meanwhile, the administration of government has become more complex, the
opportunities for malfeasance and corruption have multiplied, crime has grown to most serious
proportions, and the danger of its protection by unfaithful officials and of the impairment of the
fundamental security of life and property by criminal alliances and official neglect, emphasizes
the primary need of a vigilant and courageous press, especially in great cities. The fact that the
liberty of the press may be abused by miscreant purveyors of scandal does not make any the
less necessary the immunity of the press from previous restraint in dealing with official
misconduct."
As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 , "[a]ny
prior restraint on expression comes to this Court with a `heavy presumption' against its constitutional
validity."
The Government says that it has inherent powers to go into court and obtain an injunction to protect
the national interest, which in this case is alleged to be national security.
Near v. Minnesota, 283 U.S. 697 , repudiated that expansive doctrine in no uncertain terms.
The dominant purpose of the First Amendment was to prohibit the widespread practice of
governmental suppression [403 U.S. 713, 724] of embarrassing information. It is common knowledge
that the First Amendment was adopted against the widespread use of the common law of seditious libel
to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The
System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941).
The present cases will, I think, go down in history as the most dramatic illustration of that principle. A
debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated
the disclosure of the contents of the present documents. The latter are highly relevant to the debate in
progress.
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open
debate and discussion of public issues are vital to our national health. On public questions there should
be "uninhibited, robust, and wide-open" debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269 -270.
145
I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of the Court of
Appeals in the Times case and direct that it affirm the District Court.
The stays in these cases that have been in effect for more than a week constitute a flouting of the
principles of the First Amendment as interpreted in Near v. Minnesota.
[ Footnote 1 ] See Beauharnais v. Illinois, 343 U.S. 250, 267 (dissenting opinion of MR. JUSTICE BLACK),
284 (my dissenting opinion); Roth v. United States, 354 U.S. 476, 508 (my dissenting opinion which MR.
JUSTICE BLACK joined); Yates v. United States, 354 U.S. 298, 339 (separate opinion of MR. JUSTICE BLACK
which I joined); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (concurring opinion of MR. JUSTICE
BLACK which I joined); Garrison v. Louisiana, 379 U.S. 64, 80 (my concurring opinion which MR. JUSTICE
BLACK joined).
[ Footnote 2 ] These documents contain data concerning the communications system of the United
States, the publication of which is made a crime. But the criminal sanction is not urged by the United
States as the basis of equity power.
[ Footnote 3 ] There are numerous sets of this material in existence and they apparently are not under
any controlled custody. Moreover, the President has sent a set to the Congress. We start then with a
case where there already is rather wide distribution of the material that is destined for publicity, not
secrecy. I have gone over the material listed in the in camera brief of the United States. It is all history,
not future events. None of it is more recent than 1968.
MR. JUSTICE BRENNAN, concurring.
I
I write separately in these cases only to emphasize what should be apparent: that our judgments in the
present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and
restraining [403 U.S. 713, 725] orders to block the publication of material sought to be suppressed by
the Government. So far as I can determine, never before has the United States sought to enjoin a
newspaper from publishing information in its possession. The relative novelty of the questions
presented, the necessary haste with which decisions were reached, the magnitude of the interests
asserted, and the fact that all the parties have concentrated their arguments upon the question whether
permanent restraints were proper may have justified at least some of the restraints heretofore imposed
in these cases. Certainly it is difficult to fault the several courts below for seeking to assure that the
issues here involved were preserved for ultimate review by this Court. But even if it be assumed that
some of the interim restraints were proper in the two cases before us, that assumption has no bearing
upon the propriety of similar judicial action in the future. To begin with, there has now been ample time
for reflection and judgment; whatever values there may be in the preservation of novel questions for
appellate review may not support any restraints in the future. More important, the First Amendment
stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented
by these cases.
II
146
The error that has pervaded these cases from the outset was the granting of any injunctive relief
whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases
has been that publication of the material sought to be enjoined "could," or "might," or "may" prejudice
the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial
restraints of the press predicated upon surmise or conjecture that untoward consequences [403 U.S.
713, 726] may result. * Our cases, it is true, have indicated that there is a single, extremely narrow class
of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases
have thus far indicated that such cases may arise only when the Nation "is at war," Schenck v. United
States, 249 U.S. 47, 52 (1919), during which times "[n]o one would question but that a government
might prevent actual obstruction to its recruiting service or the publication of the sailing dates of
transports or the number and location of troops." Near v. Minnesota, 283 U.S. 697, 716 (1931). Even if
the present world situation were assumed to be tantamount to a time of war, or if the power of
presently available armaments would justify even in peacetime the suppression of information that
would set in motion a nuclear holocaust, in neither of these actions has the Government presented or
even alleged that publication of items from or based upon the material at issue would cause the
happening of an event of that nature. "[T]he chief purpose of [the First Amendment's] guaranty [is] to
prevent previous restraints upon publication." Near v. Minnesota, supra, at 713. Thus, only
governmental allegation and proof that publication must inevitably, directly, [403 U.S. 713, 727] and
immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at
sea can support even the issuance of an interim restraining order. In no event may mere conclusions be
sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably
submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every restraint
issued in this case, whatever its form, has violated the First Amendment - and not less so because that
restraint was justified as necessary to afford the courts an opportunity to examine the claim more
thoroughly. Unless and until the Government has clearly made out its case, the First Amendment
commands that no injunction may issue.
[ Footnote * ] Freedman v. Maryland, 380 U.S. 51 (1965), and similar cases regarding temporary
restraints of allegedly obscene materials are not in point. For those cases rest upon the proposition that
"obscenity is not protected by the freedoms of speech and press." Roth v. United States, 354 U.S. 476,
481 (1957). Here there is no question but that the material sought to be suppressed is within the
protection of the First Amendment; the only question is whether, notwithstanding that fact, its
publication may be enjoined for a time because of the presence of an overwhelming national interest.
Similarly, copyright cases have no pertinence here: the Government is not asserting an interest in the
particular form of words chosen in the documents, but is seeking to suppress the ideas expressed
therein. And the copyright laws, of course, protect only the form of expression and not the ideas
expressed.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
In the governmental structure created by our Constitution, the Executive is endowed with enormous
power in the two related areas of national defense and international relations. This power, largely
unchecked by the Legislative 1 and Judicial 2 branches, has been pressed to the very hilt since the
advent of the nuclear missile age. For better or for worse, the simple fact is that a [403 U.S. 713, 728]
President of the United States possesses vastly greater constitutional independence in these two vital
areas of power than does, say, a prime minister of a country with a parliamentary from of government.
147
In the absence of the governmental checks and balances present in other areas of our national life, the
only effective restraint upon executive policy and power in the areas of national defense and
international affairs may lie in an enlightened citizenry - in an informed and critical public opinion which
alone can here protect the values of democratic government. For this reason, it is perhaps here that a
press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For
without an informed and free press there cannot be an enlightened people.
Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an
effective national defense require both confidentiality and secrecy. Other nations can hardly deal with
this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be
kept. And within our own executive departments, the development of considered and intelligent
international policies would be impossible if those charged with their formulation could not
communicate with each other freely, frankly, and in confidence. In the area of basic national defense the
frequent need for absolute secrecy is, of course, self-evident.
I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where
the power is. 3 If the Constitution gives the Executive [403 U.S. 713, 729] a large degree of unshared
power in the conduct of foreign affairs and the maintenance of our national defense, then under the
Constitution the Executive must have the largely unshared duty to determine and preserve the degree
of internal security necessary to exercise that power successfully. It is an awesome responsibility,
requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical
considerations would dictate that a very first principle of that wisdom would be an insistence upon
avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the
system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those
intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly
effective internal security system would be the maximum possible disclosure, recognizing that secrecy
can best be preserved only when credibility is truly maintained. But be that as it may, it is clear to me
that it is the constitutional duty of the Executive - as a matter of sovereign prerogative and not as a
matter of law as the courts know law - through the promulgation and enforcement of executive
regulations, to protect [403 U.S. 713, 730] the confidentiality necessary to carry out its responsibilities
in the fields of international relations and national defense.
This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the
power to enact specific and appropriate criminal laws to protect government property and preserve
government secrets. Congress has passed such laws, and several of them are of very colorable relevance
to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the
responsibility of the courts to decide the applicability of the criminal law under which the charge is
brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the
courts would likewise have the duty to decide the constitutionality of such a law as well as its
applicability to the facts proved.
But in the cases before us we are asked neither to construe specific regulations nor to apply specific
laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the
Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the
Executive Branch insists should not, in the national interest, be published. I am convinced that the
Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of
any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people.
148
That being so, there can under the First Amendment be but one judicial resolution of the issues before
us. I join the judgments of the Court.
[ Footnote 1 ] The President's power to make treaties and to appoint ambassadors is, of course, limited
by the requirement of Art. II, 2, of the Constitution that he obtain the advice and consent of the Senate.
Article I, 8, empowers Congress to "raise and support Armies," and "provide and maintain a Navy." And,
of course, Congress alone can declare war. This power was last exercised almost 30 years ago at the
inception of World War II. Since the end of that war in 1945, the Armed Forces of the United States have
suffered approximately half a million casualties in various parts of the world.
[ Footnote 2 ] See Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103 ; Hirabayashi v.
United States, 320 U.S. 81 ; United States v. Curtiss-Wright Corp., 299 U.S. 304 ; cf. Mora v. McNamara,
128 U.S. App. D.C. 297, 387 F.2d 862, cert. denied, 389 U.S. 934 .
[ Footnote 3 ] "It is quite apparent that if, in the maintenance of our international relations,
embarrassment - perhaps serious embarrassment - is to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through negotiation and inquiry within the
international field must often accord to the President a degree of discretion and freedom from statutory
restriction which [403 U.S. 713, 729] would not be admissible were domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect
of information gathered by them may be highly necessary, and the premature disclosure of it productive
of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to
lay before the House of Representatives the instructions, correspondence and documents relating to the
negotiation of the Jay Treaty - a refusal the wisdom of which was recognized by the House itself and has
never since been doubted. . . ." United States v. Curtiss-Wright Corp., 299 U.S. 304, 320 .
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
I concur in today's judgments, but only because of the concededly extraordinary protection against prior
restraints [403 U.S. 713, 731] enjoyed by the press under our constitutional system. I do not say that in
no circumstances would the First Amendment permit an injunction against publishing information about
government plans or operations. 1 Nor, after examining the materials the Government characterizes as
the most sensitive and destructive, can I deny that revelation of these documents will do substantial
damage to public interests. Indeed, I am confident that their disclosure will have that result. But I
nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to
warrant an injunction against publication in these cases, at least in the absence of express and
appropriately limited congressional authorization for prior restraints in circumstances such as these.
[403 U.S. 713, 732]
The Government's position is simply stated: The responsibility of the Executive for the conduct of the
foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction
against publication of a newspaper story whenever he can convince a court that the information to be
revealed threatens "grave and irreparable" injury to the public interest; 2 and the injunction should
issue whether or not the material to be published is classified, whether or not publication would be
lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by
which the newspaper came into possession of the information.
149
At least in the absence of legislation by Congress, based on its own investigations and findings, I am
quite unable to agree that the inherent powers of the Executive and the courts reach so far as to
authorize remedies having such sweeping potential for inhibiting publications by the press. Much of the
difficulty inheres in the "grave and irreparable danger" standard suggested by the United States. If the
United States were to have judgment under such a standard in these cases, our decision would be of
little guidance to other courts in other cases, for the material at issue here would not be available from
the Court's opinion or from public records, nor would it be published by the press. Indeed, even today
where we hold that the United States has not met its burden, the material remains sealed in court
records and it is [403 U.S. 713, 733] properly not discussed in today's opinions. Moreover, because the
material poses substantial dangers to national interests and because of the hazards of criminal
sanctions, a responsible press may choose never to publish the more sensitive materials. To sustain the
Government in these cases would start the courts down a long and hazardous road that I am not willing
to travel, at least without congressional guidance and direction.
It is not easy to reject the proposition urged by the United States and to deny relief on its good-faith
claims in these cases that publication will work serious damage to the country. But that discomfiture is
considerably dispelled by the infrequency of prior-restraint cases. Normally, publication will occur and
the damage be done before the Government has either opportunity or grounds for suppression. So
here, publication has already begun and a substantial part of the threatened damage has already
occurred. The fact of a massive breakdown in security is known, access to the documents by many
unauthorized people is undeniable, and the efficacy of equitable relief against these or other
newspapers to avert anticipated damage is doubtful at best.
What is more, terminating the ban on publication of the relatively few sensitive documents the
Government now seeks to suppress does not mean that the law either requires or invites newspapers or
others to publish them or that they will be immune from criminal action if they do. Prior restraints
require an unusually heavy justification under the First Amendment; but failure by the Government to
justify prior restraints does not measure its constitutional entitlement to a conviction for criminal
publication. That the Government mistakenly chose to proceed by injunction does not mean that it
could not successfully proceed in another way.
When the Espionage Act was under consideration in [403 U.S. 713, 734] 1917, Congress eliminated
from the bill a provision that would have given the President broad powers in time of war to proscribe,
under threat of criminal penalty, the publication of various categories of information related to the
national defense. 3 Congress at that time was unwilling to clothe the President with such far-reaching
powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary
concomitant of such power was the power to "filter out the news to the people through some man." 55
Cong. Rec. 2008 (remarks of Sen. Ashurst). However, these same members of congress appeared to
have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing
information of the type Congress had itself determined should not be revealed. Senator Ashurst, for
example, was quite sure that the editor of such a newspaper "should be punished if he did publish
information as to the movements of the fleet, the troops, the aircraft, the location of powder factories,
the location of defense works, and all that sort of thing." Id., at 2009. 4 [403 U.S. 713, 735]
The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 5
makes it a crime to publish certain photographs or drawings of military installations. Section 798, 6 also
in precise language, proscribes knowing and willful publication of any classified information concerning
the cryptographic systems [403 U.S. 713, 736] or communication intelligence activities of the United
150
States as well as any information obtained from communication intelligence operations. 7 If any of the
material here at issue is of this nature, the newspapers are presumably now on full notice of the
position of the United States and must face the consequences if they [403 U.S. 713, 737] publish. I
would have no difficulty in sustaining convictions under these sections on facts that would not justify
the intervention of equity and the imposition of a prior restraint.
The same would be true under those sections of the Criminal Code casting a wider net to protect the
national defense. Section 793 (e) 8 makes it a criminal act for any unauthorized possessor of a document
"relating to the national defense" either (1) willfully to communicate or cause to be communicated that
document to any person not entitled to receive it or (2) willfully to retain the document and fail to
deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950
because pre-existing law provided no [403 U.S. 713, 738] penalty for the unauthorized possessor unless
demand for the documents was made. 9 "The dangers surrounding the unauthorized possession of such
items are self-evident, [403 U.S. 713, 739] and it is deemed advisable to require their surrender in such
a case, regardless of demand, especially since their unauthorized possession may be unknown to the
authorities who would otherwise make the demand." S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9
(1950). Of course, in the cases before us, the unpublished documents have been demanded by the
United States and their import has been made known at least to counsel for the newspapers involved. In
Gorin v. United States, 312 U.S. 19, 28 (1941), the words "national defense" as used in a predecessor of
793 were held by a unanimous Court to have "a well understood connotation" - a "generic concept of
broad connotations, referring to the military and naval establishments and the related activities of
national preparedness" - and to be "sufficiently definite to apprise the public of prohibited activities"
[403 U.S. 713, 740] and to be consonant with due process. 312 U.S., at 28 . Also, as construed by the
Court in Gorin, information "connected with the national defense" is obviously not limited to that
threatening "grave and irreparable" injury to the United States. 10
It is thus clear that Congress has addressed itself to the problems of protecting the security of the
country and the national defense from unauthorized disclosure of potentially damaging information. Cf.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 -586 (1952); see also id., at 593-628
(Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against threatened
publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on
the responsible as well as the irresponsible press. I am not, of course, saying that either of these
newspapers has yet committed a crime or that either would commit a crime if it published all the
material now in its possession. That matter must await resolution in the context of a criminal proceeding
if one is instituted by the United States. In that event, the issue of guilt or innocence would be
determined by procedures and standards quite different from those that have purported to govern
these injunctive proceedings.
[ Footnote 1 ] The Congress has authorized a strain of prior restraints against private parties in certain
instances. The National Labor Relations Board routinely issues cease-and-desist orders against
employers who it finds have threatened or coerced employees in the exercise of protected rights. See
29 U.S.C. 160 (c). Similarly, the Federal Trade Commission is empowered to impose cease-and-desist
orders against unfair methods of competition. 15 U.S.C. 45 (b). Such orders can, and quite often do,
restrict what may be spoken or written under certain circumstances. See, e. g., NLRB v. Gissel Packing
Co., 395 U.S. 575, 616 -620 (1969). Article I, 8, of the Constitution authorizes Congress to secure the
"exclusive right" of authors to their writings, and no one denies that a newspaper can properly be
enjoined from publishing the copyrighted works of another. See Westermann Co. v. Dispatch Co., 249
U.S. 100 (1919). Newspapers do themselves rely from time to time on the copyright as a means of
151
protecting their accounts of important events. However, those enjoined under the statutes relating to
the National Labor Relations Board and the Federal Trade Commission are private parties, not the press;
and when the press is enjoined under the copyright laws the complainant is a private copyright holder
enforcing a private right. These situations are quite distinct from the Government's request for an
injunction against publishing information about the affairs of government, a request admittedly not
based on any statute.
[ Footnote 2 ] The "grave and irreparable danger" standard is that asserted by the Government in this
Court. In remanding to Judge Gurfein for further hearings in the Times litigation, five members of the
Court of Appeals for the Second Circuit directed him to determine whether disclosure of certain items
specified with particularity by the Government would "pose such grave and immediate danger to the
security of the United States as to warrant their publication being enjoined."
[ Footnote 3 ] "Whoever, in time of war, in violation of reasonable regulations to be prescribed by the
President, which he is hereby authorized to make and promulgate, shall publish any information with
respect to the movement, numbers, description, condition, or disposition of any of the armed forces,
ships, aircraft, or war materials of the United States, or with respect to the plans or conduct of any naval
or military operations, or with respect to any works or measures undertaken for or connected with, or
intended for the fortification or defense of any place, or any other information relating to the public
defense calculated to be useful to the enemy, shall be punished by a fine . . . or by imprisonment . . . ."
55 Cong. Rec. 2100.
[ Footnote 4 ] Senator Ashurst also urged that "`freedom of the press' means freedom from the
restraints of a censor, means the absolute liberty and right to publish whatever you wish; but you take
your chances of punishment in the courts of your country for the violation of the laws of libel, slander,
and treason." 55 Cong. Rec. 2005.
[ Footnote 5 ] Title 18 U.S.C. 797 provides:
"On and after thirty days from the date upon which the President defines any vital military or
naval installation or equipment as being within the category contemplated under section 795 of
this title, whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture,
drawing, map, or graphical representation of the vital military or naval installations or
equipment so defined, without first obtaining permission of the commanding officer of the
military or naval post, camp, or station concerned, or higher authority, unless such photograph,
sketch, picture, drawing, map, or graphical representation has clearly indicated thereon that it
has been censored by the proper military or naval authority, shall be fined not more than $1,000
or imprisoned not more than one year, or both."
[ Footnote 6 ] In relevant part 18 U.S.C. 798 provides:
"(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes
available to an unauthorized person, or publishes, or uses in any manner prejudicial to the
safety or interest of the United States or for the benefit of any foreign government to the
detriment of the United States any classified information "(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of
the United States or any foreign government; or
152
"(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus,
or appliance used or prepared or planned for use by the United States or any foreign
government for cryptographic or communication intelligence purposes; or
"(3) concerning the communication intelligence activities of the United States or any foreign
government; or
"(4) obtained by the process of communication intelligence from the communications of any
foreign government, knowing the same to have been obtained by such processes "Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
[ Footnote 7 ] The purport of 18 U.S.C. 798 is clear. Both the House and Senate Reports on the bill, in
identical terms, speak of furthering the security of the United States by preventing disclosure of
information concerning the cryptographic systems and the communication intelligence systems of the
United States, and explaining that "[t]his bill makes it a crime to reveal the methods, techniques, and
material used in the transmission by this Nation of enciphered or coded messages. . . . Further, it makes
it a crime to reveal methods used by this Nation in breaking the secret codes of a foreign nation. It also
prohibits under certain penalties the divulging of any information which may have come into this
Government's hands as a result of such a code-breaking." H. R. Rep. No. 1895, 81st Cong., 2d Sess., 1
(1950). The narrow reach of the statute was explained as covering "only a small category of classified
matter, a category which is both vital and vulnerable to an almost unique degree." Id., at 2. Existing
legislation was deemed inadequate.
"At present two other acts protect this information, but only in a limited way. These are the
Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122). Under the first,
unauthorized revelation of information of this kind can be penalized only if it can be proved that
the person making the revelation did so with an intent to injure the United States. Under the
second, only diplomatic codes and messages transmitted in diplomatic codes are protected. The
present bill is designed to protect against knowing and willful publication or any other revelation
of all important information affecting the United States communication intelligence operations
and all direct information about all United States codes and ciphers." Ibid.
Section 798 obviously was intended to cover publications by nonemployees of the Government and to
ease the Government's burden in obtaining convictions. See H. R. Rep. No. 1895, supra, at 2-5. The
identical Senate Report, not cited in parallel in the text of this footnote, is S. Rep. No. 111, 81st Cong.,
1st Sess. (1949).
[ Footnote 8 ] Section 793 (e) of 18 U.S.C. provides that:
"(e) Whoever having unauthorized possession of, access to, or control over any document,
writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan,
map, model, instrument, appliance, or note relating to the national defense, or information
relating to the national defense which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or
attempts to communicate, deliver, transmit or cause to be communicated, delivered, or
transmitted the same to any person not entitled to receive it, or willfully retains the same and
fails to deliver it to the officer or employee of the United States entitled to receive it;"
is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be noted
that 18 U.S.C. 793 (g), added in 1950 (see 64 Stat. 1004; S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9
(1950)), provides that "[i]f two or more persons conspire to violate any of the foregoing provisions of
153
this section, and one or more of such persons do any act to effect the object of the conspiracy, each of
the parties to such conspiracy shall be subject to the punishment provided for the offense which is the
object of such conspiracy."
[ Footnote 9 ] The amendment of 793 that added subsection (e) was part of the Subversive Activities
Control Act of 1950, which was in turn Title I of the Internal Security Act of 1950. See 64 Stat. 987. The
report of the Senate Judiciary Committee best explains the purposes of the amendment:
"Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage
statute). The several paragraphs of section 793 of title 18 are designated as subsections (a)
through (g) for purposes of convenient reference. The significant changes which would be made
in section 793 of title 18 are as follows:
"(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful
dissemination of `information relating to the national defense which information the possessor
has reason to believe could be used to the injury of the United States or to the advantage of any
foreign nation.' The phrase `which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any foreign nation' would modify
only `information relating to the national defense' and not the other items enumerated in the
subsection. The fourth paragraph of section 793 is also amended to provide that only those with
lawful possession of the items relating to national defense enumerated therein may retain them
subject to demand therefor. Those who have unauthorized possession of such items are treated
in a separate subsection.
"(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items
enumerated in paragraph 4 of section 793 must surrender possession thereof to the proper
authorities without demand. Existing law provides no penalty for the unauthorized possession of
such items unless a demand for them is made by the person entitled to receive them. The
dangers surrounding the unauthorized possession of such items are self-evident, and it is
deemed advisable to require their surrender in such a case, regardless of demand, especially
since their unauthorized possession may be unknown to the authorities who would otherwise
make the demand. The only difference between subsection (d) and subsection (e) of section 793
is that a demand by the person entitled to receive the items would be a necessary element of an
offense under subsection (d) where the possession is lawful, whereas such [403 U.S. 713, 739]
a demand would not be a necessary element of an offense under subsection (e) where the
possession is unauthorized." S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis
added).
It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern
District of New York in this case, that in prosecuting for communicating or withholding a "document" as
contrasted with similar action with respect to "information" the Government need not prove an intent
to injure the United States or to benefit a foreign nation but only willful and knowing conduct. The
District Court relied on Gorin v. United States, 312 U.S. 19 (1941). But that case arose under other parts
of the predecessor to 793, see 312 U.S., at 21 -22 - parts that imposed different intent standards not
repeated in 793 (d) or 793 (e). Cf. 18 U.S.C. 793 (a), (b), and (c). Also, from the face of subsection (e) and
from the context of the Act of which it was a part, it seems undeniable that a newspaper, as well as
others unconnected with the Government, are vulnerable to prosecution under 793 (e) if they
communicate or withhold the materials covered by that section. The District Court ruled that
"communication" did not reach publication by a newspaper of documents relating to the national
defense. I intimate no views on the correctness of that conclusion. But neither communication nor
publication is necessary to violate the subsection.
154
[ Footnote 10 ] Also relevant is 18 U.S.C. 794. Subsection (b) thereof forbids in time of war the collection
or publication, with intent that it shall be communicated to the enemy, of any information with respect
to the movements of military forces, "or with respect to the plans or conduct . . . of any naval or military
operations . . . or any other information relating to the public defense, which might be useful to the
enemy . . . ."
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these cases is whether in a suit by the United States,
"the First Amendment bars a court from prohibiting a newspaper [403 U.S. 713, 741] from publishing
material whose disclosure would pose a `grave and immediate danger to the security of the United
States.'" Brief for the United States 7. With all due respect, I believe the ultimate issue in these cases is
even more basic than the one posed by the Solicitor General. The issue is whether this Court or the
Congress has the power to make law.
In these cases there is no problem concerning the President's power to classify information as "secret"
or "top secret." Congress has specifically recognized Presidential authority, which has been formally
exercised in Exec. Order 10501 (1953), to classify documents and information. See, e. g., 18 U.S.C. 798;
50 U.S.C. 783. 1 Nor is there any issue here regarding the President's power as Chief Executive and
Commander in Chief to protect national security by disciplining employees who disclose information and
by taking precautions to prevent leaks.
The problem here is whether in these particular cases the Executive Branch has authority to invoke the
equity jurisdiction of the courts to protect what it believes to be the national interest. See In re Debs,
158 U.S. 564, 584 (1895). The Government argues that in addition to the inherent power of any
government to protect itself, the President's power to conduct foreign affairs and his position as
Commander in Chief give him authority to impose censorship on the press to protect his ability to deal
effectively with foreign nations and to conduct the military affairs of the country. Of course, it is beyond
cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our
foreign affairs and his position as Commander in Chief. Chicago & Southern Air Lines v. Waterman S. S.
Corp., 333 U.S. 103 (1948); Hirabayashi v. United States, 320 U.S. 81, 93 (1943); United States v. CurtissWright [403 U.S. 713, 742] Corp., 299 U.S. 304 (1936). 2 And in some situations it may be that under
whatever inherent powers the Government may have, as well as the implicit authority derived from the
President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the
invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material
damaging to "national security," however that term may be defined.
It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use
its power of contempt to prevent behavior that Congress has specifically declined to prohibit. There
would be a similar damage to the basic concept of these co-equal branches of Government if when the
Executive Branch has adequate authority granted by Congress to protect "national security" it can
choose instead to invoke the contempt power of a court to enjoin the threatened conduct. The
Constitution provides that Congress shall make laws, the President execute laws, and courts interpret
laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). It did not provide for government by
injunction in which the courts and the Executive Branch can "make law" without regard to the action of
Congress. It may be more convenient for the Executive Branch if it need only convince a judge to
prohibit conduct rather than ask the Congress to pass a law, and it may be more convenient to enforce a
contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered
155
politically wise to get a court to share the responsibility for arresting those who the Executive Branch
has probable cause to believe are violating the law. But convenience and political considerations of the
[403 U.S. 713, 743] moment do not justify a basic departure from the principles of our system of
government.
In these cases we are not faced with a situation where Congress has failed to provide the Executive with
broad power to protect the Nation from disclosure of damaging state secrets. Congress has on several
occasions given extensive consideration to the problem of protecting the military and strategic secrets
of the United States. This consideration has resulted in the enactment of statutes making it a crime to
receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments,
appliances, and information. The bulk of these statutes is found in chapter 37 of U.S.C., Title 18, entitled
Espionage and Censorship. 3 In that chapter, [403 U.S. 713, 744] Congress has provided penalties
ranging from a $10,000 fine to death for violating the various statutes.
Thus it would seem that in order for this Court to issue an injunction it would require a showing that
such an injunction would enhance the already existing power of the Government to act. See Bennett v.
Laman, 277 N. Y. 368, 14 N. E. 2d 439 (1938). It is a traditional axiom of equity that a court of equity will
not do a useless thing just as it is a traditional axiom that equity will not enjoin the commission of a
crime. See Z. Chafee & E. Re, Equity 935-954 (5th ed. 1967); 1 H. Joyce, Injunctions 58-60a (1909). Here
there has been no attempt to make such a showing. The Solicitor General does not even mention in his
brief whether the Government considers that there is probable cause to believe a crime has been
committed or whether there is a conspiracy to commit future crimes.
If the Government had attempted to show that there was no effective remedy under traditional criminal
law, it would have had to show that there is no arguably applicable statute. Of course, at this stage this
Court could not and cannot determine whether there has been a violation of a particular statute or
decide the constitutionality of any statute. Whether a good-faith prosecution could have been instituted
under any statute could, however, be determined. [403 U.S. 713, 745]
At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18
U.S.C. 793 (e) that whoever "having unauthorized possession of, access to, or control over any
document, writing, code book, signal book . . . or note relating to the national defense, or information
relating to the national defense which information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign nation, willfully communicates,
delivers, transmits . . . the same to any person not entitled to receive it, or willfully retains the same and
fails to deliver it to the officer or employee of the United States entitled to receive it . . . [s]hall be fined
not more than $10,000 or imprisoned not more than ten years, or both." Congress has also made it a
crime to conspire to commit any of the offenses listed in 18 U.S.C. 793 (e).
It is true that Judge Gurfein found that Congress had not made it a crime to publish the items and
material specified in 793 (e). He found that the words "communicates, delivers, transmits . . ." did not
refer to publication of newspaper stories. And that view has some support in the legislative history and
conforms with the past practice of using the statute only to prosecute those charged with ordinary
espionage. But see 103 Cong. Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's view of the
statute is not, however, the only plausible construction that could be given. See my Brother WHITE'S
concurring opinion.
156
Even if it is determined that the Government could not in good faith bring criminal prosecutions against
the New York Times and the Washington Post, it is clear that Congress has specifically rejected passing
legislation that would have clearly given the President the power he seeks here and made the current
activity of the newspapers unlawful. When Congress specifically declines to make conduct unlawful it is
not for this Court [403 U.S. 713, 746] to redecide those issues - to overrule Congress. See Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
On at least two occasions Congress has refused to enact legislation that would have made the conduct
engaged in here unlawful and given the President the power that he seeks in this case. In 1917 during
the debate over the original Espionage Act, still the basic provisions of 793, Congress rejected a proposal
to give the President in time of war or threat of war authority to directly prohibit by proclamation the
publication of information relating to national defense that might be useful to the enemy. The proposal
provided that:
"During any national emergency resulting from a war to which the United States is a party, or
from threat of such a war, the President may, by proclamation, declare the existence of such
emergency and, by proclamation, prohibit the publishing or communicating of, or the
attempting to publish or communicate any information relating to the national defense which,
in his judgment, is of such character that it is or might be useful to the enemy. Whoever violates
any such prohibition shall be punished by a fine of not more than $10,000 or by imprisonment
for not more than 10 years, or both: Provided, That nothing in this section shall be construed to
limit or restrict any discussion, comment, or criticism of the acts or policies of the Government
or its representatives or the publication of the same." 55 Cong. Rec. 1763.
Congress rejected this proposal after war against Germany had been declared even though many
believed that there was a grave national emergency and that the threat of security leaks and espionage
was serious. The Executive Branch has not gone to Congress and requested that the decision to provide
such power be reconsidered. Instead, [403 U.S. 713, 747] the Executive Branch comes to this Court and
asks that it be granted the power Congress refused to give.
In 1957 the United States Commission on Government Security found that "[a]irplane journals, scientific
periodicals, and even the daily newspaper have featured articles containing information and other data
which should have been deleted in whole or in part for security reasons." In response to this problem
the Commission proposed that "Congress enact legislation making it a crime for any person willfully to
disclose without proper authorization, for any purpose whatever, information classified `secret' or `top
secret,' knowing, or having reasonable grounds to believe, such information to have been so classified."
Report of Commission on Government Security 619-620 (1957). After substantial floor discussion on the
proposal, it was rejected. See 103 Cong. Rec. 10447-10450. If the proposal that Sen. Cotton championed
on the floor had been enacted, the publication of the documents involved here would certainly have
been a crime. Congress refused, however, to make it a crime. The Government is here asking this Court
to remake that decision. This Court has no such power.
Either the Government has the power under statutory grant to use traditional criminal law to protect
the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that
Congress has specifically refused to grant the authority the Government seeks from this Court. In either
case this Court does not have authority to grant the requested relief. It is not for this Court to fling itself
into every breach perceived by some Government official nor is it for this Court to take on itself the
burden of enacting law, especially a law that Congress has refused to pass.
157
I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit
should [403 U.S. 713, 748] be affirmed and the judgment of the United States Court of Appeals for the
Second Circuit should be reversed insofar as it remands the case for further hearings.
[ Footnote 1 ] See n. 3, infra.
[ Footnote 2 ] But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952).
[ Footnote 3 ] There are several other statutory provisions prohibiting and punishing the dissemination
of information, the disclosure of which Congress thought sufficiently imperiled national security to
warrant that result. These include 42 U.S.C. 2161 through 2166 relating to the authority of the Atomic
Energy Commission to classify and declassify "Restricted Data" ["Restricted Data" is a term of art
employed uniquely by the Atomic Energy Act]. Specifically, 42 U.S.C. 2162 authorizes the Atomic Energy
Commission to classify certain information. Title 42 U.S.C. 2274, subsection (a), provides penalties for a
person who "communicates, transmits, or discloses [restricted data] . . . with intent to injure the United
States or with intent to secure an advantage to any foreign nation . . . ." Subsection (b) of 2274 provides
lesser penalties for one who "communicates, transmits, or discloses" such information "with reason to
believe such data will be utilized to injure the United States or to secure an advantage to any foreign
nation . . . ." Other sections of Title 42 of the United States Code dealing with atomic energy prohibit and
punish acquisition, removal, concealment, tampering with, alteration, mutilation, or destruction of
documents incorporating "Restricted Data" and provide penalties for employees and former employees
of the Atomic Energy Commission, the armed services, contractors and licensees of the Atomic Energy
Commission. Title 42 U.S.C. 2276, 2277. Title 50 U.S.C. App. 781, 56 Stat. 390, prohibits the making of
any sketch or other representation of military installations or any military equipment located on any
military [403 U.S. 713, 744] installation, as specified; and indeed Congress in the National Defense Act
of 1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred jurisdiction on federal district courts over civil
actions "to enjoin any violation" thereof. 50 U.S.C. App. 1152 (6). Title 50 U.S.C. 783 (b) makes it
unlawful for any officers or employees of the United States or any corporation which is owned by the
United States to communicate material which has been "classified" by the President to any person who
that governmental employee knows or has reason to believe is an agent or representative of any foreign
government or any Communist organization.
MR. CHIEF JUSTICE BURGER, dissenting.
So clear are the constitutional limitations on prior restraint against expression, that from the time of
Near v. Minnesota, 283 U.S. 697 (1931), until recently in Organization for a Better Austin v. Keefe, 402
U.S. 415 (1971), we have had little occasion to be concerned with cases involving prior restraints against
news reporting on matters of public interest. There is, therefore, little variation among the members of
the Court in terms of resistance to prior restraints against publication. Adherence to this basic
constitutional principle, however, does not make these cases simple. In these cases, the imperative of a
free and unfettered press comes into collision with another imperative, the effective functioning of a
complex modern government and specifically the effective exercise of certain constitutional powers of
the Executive. Only those who view the First Amendment as an absolute in all circumstances - a view I
respect, but reject - can find such cases as these to be simple or easy.
158
These cases are not simple for another and more immediate reason. We do not know the facts of the
cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of
this Court knows all the facts.
Why are we in this posture, in which only those judges to whom the First Amendment is absolute and
permits of no restraint in any circumstances or for any reason, are really in a position to act?
I suggest we are in this posture because these cases have been conducted in unseemly haste. MR.
JUSTICE HARLAN covers the chronology of events demonstrating the hectic pressures under which these
cases have been processed and I need not restate them. The prompt [403 U.S. 713, 749] setting of
these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not
mean unjudicial haste.
Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded
from the date it obtained the purloined documents. It seems reasonably clear now that the haste
precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The
precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that
ought to attend the disposition of a great issue.
The newspapers make a derivative claim under the First Amendment; they denominate this right as the
public "right to know"; by implication, the Times asserts a sole trusteeship of that right by virtue of its
journalistic "scoop." The right is asserted as an absolute. Of course, the First Amendment right itself is
not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout
"fire" in a crowded theater if there was no fire. There are other exceptions, some of which Chief Justice
Hughes mentioned by way of example in Near v. Minnesota. There are no doubt other exceptions no
one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases
and would have been flushed had they been properly considered in the trial courts, free from
unwarranted deadlines and frenetic pressures. An issue of this importance should be tried and heard in
a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of
hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication. 1
[403 U.S. 713, 750]
It is not disputed that the Times has had unauthorized possession of the documents for three to four
months, during which it has had its expert analysts studying them, presumably digesting them and
preparing the material for publication. During all of this time, the Times, presumably in its capacity as
trustee of the public's "right to know," has held up publication for purposes it considered proper and
thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of
complex material drawn from a vastly greater volume of material would inevitably take time and the
writing of good news stories takes time. But why should the United States Government, from whom this
information was illegally acquired by someone, along with all the counsel, trial judges, and appellate
judges be placed under needless pressure? After these months of deferral, the alleged "right to know"
has somehow and suddenly become a right that must be vindicated instanter.
Would it have been unreasonable, since the newspaper could anticipate the Government's objections to
release of secret material, to give the Government an opportunity to review the entire collection and
determine whether agreement could be reached on publication? Stolen or not, if security was not in fact
jeopardized, much of the material could no doubt have been declassified, since it spans a period ending
in 1968. With such an approach - one that great newspapers have in the past practiced and stated
159
editorially to be the duty of an honorable press - the newspapers and Government might well have
narrowed [403 U.S. 713, 751] the area of disagreement as to what was and was not publishable,
leaving the remainder to be resolved in orderly litigation, if necessary. To me it is hardly believable that
a newspaper long regarded as a great institution in American life would fail to perform one of the basic
and simple duties of every citizen with respect to the discovery or possession of stolen property or
secret government documents. That duty, I had thought - perhaps naively - was to report forthwith, to
responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course
followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the
issues. If the action of the judges up to now has been correct, that result is sheer happenstance. 2
Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District
Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the
Second Circuit.
The consequence of all this melancholy series of events is that we literally do not know what we are
acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude
without an adequate record, and surely without time for adequate treatment either in the prior
proceedings or in this Court. It is interesting to note that counsel on both sides, in oral argument before
this Court, were frequently unable to respond to questions on factual points. Not surprisingly they
pointed out that they had been working literally "around the clock" and simply were unable to review
the documents that give rise to these cases and [403 U.S. 713, 752] were not familiar with them. This
Court is in no better posture. I agree generally with MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN
but I am not prepared to reach the merits. 3
I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the
trial aborted by our grant of certiorari, meanwhile preserving the status quo in the Post case. I would
direct that the District Court on remand give priority to the Times case to the exclusion of all other
business of that court but I would not set arbitrary deadlines.
I should add that I am in general agreement with much of what MR. JUSTICE WHITE has expressed with
respect to penal sanctions concerning communication or retention of documents or information relating
to the national defense.
We all crave speedier judicial processes but when judges are pressured as in these cases the result is a
parody of the judicial function.
[ Footnote 1 ] As noted elsewhere the Times conducted its analysis of the 47 volumes of Government
documents over a period of several months and did so with a degree of security that a government
might envy. Such security was essential, of course, to protect the enterprise [403 U.S. 713, 750] from
others. Meanwhile the Times has copyrighted its material and there were strong intimations in the oral
argument that the Times contemplated enjoining its use by any other publisher in violation of its
copyright. Paradoxically this would afford it a protection, analogous to prior restraint, against all others a protection the Times denies the Government of the United States.
[ Footnote 2 ] Interestingly the Times explained its refusal to allow the Government to examine its own
purloined documents by saying in substance this might compromise its sources and informants! The
160
Times thus asserts a right to guard the secrecy of its sources while denying that the Government of the
United States has that power.
[ Footnote 3 ] With respect to the question of inherent power of the Executive to classify papers,
records, and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the
courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court
express power to establish and enforce the utmost security measures for the secrecy of our
deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the
confidentiality of its internal operations by whatever judicial measures may be required.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern
Securities Co. v. United States, 193 U.S. 197, 400 -401 (1904):
"Great cases like hard cases make bad law. For great cases are called great, not by reason of
their [403 U.S. 713, 753] real importance in shaping the law of the future, but because of some
accident of immediate overwhelming interest which appeals to the feelings and distorts the
judgment. These immediate interests exercise a kind of hydraulic pressure which makes what
previously was clear seem doubtful, and before which even well settled principles of law will
bend."
With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these
cases.
Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia
Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for
accelerated consideration thereof, and its application for interim relief were filed in this Court on June
24 at about 11 a. m. The application of the United States for interim relief in the Post case was also filed
here on June 24 at about 7:15 p. m. This Court's order setting a hearing before us on June 26 at 11 a. m.,
a course which I joined only to avoid the possibility of even more peremptory action by the Court, was
issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 p.
m. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that same night. The briefs
of the parties were received less than two hours before argument on June 26.
This frenzied train of events took place in the name of the presumption against prior restraints created
by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in
these litigations should have led the Court to shun such a precipitate timetable. In order to decide the
merits of these cases properly, some or all of the following questions should have been faced:
1. Whether the Attorney General is authorized to bring these suits in the name of the United States.
Compare [403 U.S. 713, 754] In re Debs, 158 U.S. 564 (1895), with Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952). This question involves as well the construction and validity of a singularly
opaque statute - the Espionage Act, 18 U.S.C. 793 (e).
2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would
present a serious threat to national security. See Near v. Minnesota, 283 U.S. 697, 716 (1931) (dictum).
161
3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national
security to justify an injunction on the theory that regardless of the contents of the documents harm
enough results simply from the demonstration of such a breach of secrecy.
4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the
national security.
5. What weight should be given to the opinion of high officers in the Executive Branch of the
Government with respect to questions 3 and 4.
6. Whether the newspapers are entitled to retain and use the documents notwithstanding the
seemingly uncontested facts that the documents, or the originals of which they are duplicates, were
purloined from the Government's possession and that the newspapers received them with knowledge
that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U.S. App. D.C. 74, 390
F.2d 489 (1967, amended 1968).
7. Whether the threatened harm to the national security or the Government's possessory interest in the
documents justifies the issuance of an injunction against publication in light of a. The strong First Amendment policy against prior restraints on publication; [403 U.S. 713, 755]
b. The doctrine against enjoining conduct in violation of criminal statutes; and
c. The extent to which the materials at issue have apparently already been otherwise disseminated.
These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous
decision are enormous. The time which has been available to us, to the lower courts, * and to the
parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a
reflection on the stability of the judicial process that these great issues - as important as any that have
arisen during my time on the Court - should have been decided under the pressures engendered by the
torrent of publicity that has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court.
Within the severe limitations imposed by the time constraints under which I have been required to
operate, I can only state my reasons in telescoped form, even though in different circumstances I would
have felt constrained to deal with the cases in the fuller sweep indicated above.
It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to
observe that its order must rest on the conclusion that because of the time elements the Government
had not been given an adequate opportunity to present its case [403 U.S. 713, 756] to the District
Court. At the least this conclusion was not an abuse of discretion.
In the Post litigation the Government had more time to prepare; this was apparently the basis for the
refusal of the Court of Appeals for the District of Columbia Circuit on rehearing to conform its judgment
to that of the Second Circuit. But I think there is another and more fundamental reason why this
judgment cannot stand - a reason which also furnishes an additional ground for not reinstating the
judgment of the District Court in the Times litigation, set aside by the Court of Appeals. It is plain to me
162
that the scope of the judicial function in passing upon the activities of the Executive Branch of the
Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated by the
concept of separation of powers upon which our constitutional system rests.
In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a member of
that body, stated:
"The President is the sole organ of the nation in its external relations, and its sole representative
with foreign nations." 10 Annals of Cong. 613 (1800).
From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge
to this description of the scope of executive power. See United States v. Curtiss-Wright Corp., 299 U.S.
304, 319 -321 (1936), collecting authorities.
From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions
necessarily follow. Some of these were stated concisely by President Washington, declining the request
of the House of Representatives for the papers leading up to the negotiation of the Jay Treaty:
"The nature of foreign negotiations requires caution, and their success must often depend on
secrecy; [403 U.S. 713, 757] and even when brought to a conclusion a full disclosure of all the
measures, demands, or eventual concessions which may have been proposed or contemplated
would be extremely impolitic; for this might have a pernicious influence on future negotiations,
or produce immediate inconveniences, perhaps danger and mischief, in relation to other
powers." 1 J. Richardson, Messages and Papers of the Presidents 194-195 (1896).
The power to evaluate the "pernicious influence" of premature disclosure is not, however, lodged in the
Executive alone. I agree that, in performance of its duty to protect the values of the First Amendment
against political pressures, the judiciary must review the initial Executive determination to the point of
satisfying itself that the subject matter of the dispute does lie within the proper compass of the
President's foreign relations power. Constitutional considerations forbid "a complete abandonment of
judicial control." Cf. United States v. Reynolds, 345 U.S. 1, 8 (1953). Moreover, the judiciary may
properly insist that the determination that disclosure of the subject matter would irreparably impair the
national security be made by the head of the Executive Department concerned - here the Secretary of
State or the Secretary of Defense - after actual personal consideration by that officer. This safeguard is
required in the analogous area of executive claims of privilege for secrets of state. See id., at 8 and n. 20;
Duncan v. Cammell, Laird & Co., 1942. A. C. 624, 638 (House of Lords).
But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine for
itself the probable impact of disclosure on the national security.
"[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such
decisions [403 U.S. 713, 758] are wholly confided by our Constitution to the political
departments of the government, Executive and Legislative. They are delicate, complex, and
involve large elements of prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil. They are decisions of a kind
for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been
held to belong in the domain of political power not subject to judicial intrusion or inquiry."
Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (Jackson,
J.).
163
Even if there is some room for the judiciary to override the executive determination, it is plain that the
scope of review must be exceedingly narrow. I can see no indication in the opinions of either the District
Court or the Court of Appeals in the Post litigation that the conclusions of the Executive were given even
the deference owing to an administrative agency, much less that owing to a co-equal branch of the
Government operating within the field of its constitutional prerogative.
Accordingly, I would vacate the judgment of the Court of Appeals for the District of Columbia Circuit on
this ground and remand the case for further proceedings in the District Court. Before the
commencement of such further proceedings, due opportunity should be afforded the Government for
procuring from the Secretary of State or the Secretary of Defense or both an expression of their views
on the issue of national security. The ensuing review by the District Court should be in accordance with
the views expressed in this opinion. And for the reasons stated above I would affirm the judgment of the
Court of Appeals for the Second Circuit.
Pending further hearings in each case conducted under the appropriate ground rules, I would continue
the [403 U.S. 713, 759] restraints on publication. I cannot believe that the doctrine prohibiting prior
restraints reaches to the point of preventing courts from maintaining the status quo long enough to act
responsibly in matters of such national importance as those involved here.
[ Footnote * ] The hearing in the Post case before Judge Gesell began at 8 a. m. on June 21, and his
decision was rendered, under the hammer of a deadline imposed by the Court of Appeals, shortly before
5 p. m. on the same day. The hearing in the Times case before Judge Gurfein was held on June 18 and
his decision was rendered on June 19. The Government's appeals in the two cases were heard by the
Courts of Appeals for the District of Columbia and Second Circuits, each court sitting en banc, on June
22. Each court rendered its decision on the following afternoon.
MR. JUSTICE BLACKMUN, dissenting.
I join MR. JUSTICE HARLAN in his dissent. I also am in substantial accord with much that MR. JUSTICE
WHITE says, by way of admonition, in the latter part of his opinion.
At this point the focus is on only the comparatively few documents specified by the Government as
critical. So far as the other material - vast in amount - is concerned, let it be published and published
forthwith if the newspapers, once the strain is gone and the sensationalism is eased, still feel the urge so
to do.
But we are concerned here with the few documents specified from the 47 volumes. Almost 70 years ago
Mr. Justice Holmes, dissenting in a celebrated case, observed:
"Great cases like hard cases make bad law. For great cases are called great, not by reason of
their real importance in shaping the law of the future, but because of some accident of
immediate overwhelming interest which appeals to the feelings and distorts the judgment.
These immediate interests exercise a kind of hydraulic pressure . . . ." Northern Securities Co. v.
United States, 193 U.S. 197, 400 -401 (1904).
The present cases, if not great, are at least unusual in their posture and implications, and the Holmes
observation certainly has pertinent application.
164
The New York Times clandestinely devoted a period of three months to examining the 47 volumes that
came into its unauthorized possession. Once it had begun publication [403 U.S. 713, 760] of material
from those volumes, the New York case now before us emerged. It immediately assumed, and ever
since has maintained, a frenetic pace and character. Seemingly, once publication started, the material
could not be made public fast enough. Seemingly, from then on, every deferral or delay, by restraint or
otherwise, was abhorrent and was to be deemed violative of the First Amendment and of the public's
"right immediately to know." Yet that newspaper stood before us at oral argument and professed
criticism of the Government for not lodging its protest earlier than by a Monday telegram following the
initial Sunday publication.
The District of Columbia case is much the same.
Two federal district courts, two United States courts of appeals, and this Court - within a period of less
than three weeks from inception until today - have been pressed into hurried decision of profound
constitutional issues on inadequately developed and largely assumed facts without the careful
deliberation that, one would hope, should characterize the American judicial process. There has been
much writing about the law and little knowledge and less digestion of the facts. In the New York case the
judges, both trial and appellate, had not yet examined the basic material when the case was brought
here. In the District of Columbia case, little more was done, and what was accomplished in this respect
was only on required remand, with the Washington Post, on the excuse that it was trying to protect its
source of information, initially refusing to reveal what material it actually possessed, and with the
District Court forced to make assumptions as to that possession.
With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a lawsuit
of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and to be
required to adjudicate, issues that allegedly concern the Nation's [403 U.S. 713, 761] vital welfare. The
country would be none the worse off were the cases tried quickly, to be sure, but in the customary and
properly deliberative manner. The most recent of the material, it is said, dates no later than 1968,
already about three years ago, and the Times itself took three months to formulate its plan of procedure
and, thus, deprived its public for that period.
The First Amendment, after all, is only one part of an entire Constitution. Article II of the great
document vests in the Executive Branch primary power over the conduct of foreign affairs and places in
that branch the responsibility for the Nation's safety. Each provision of the Constitution is important,
and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of
downgrading other provisions. First Amendment absolutism has never commanded a majority of this
Court. See, for example, Near v. Minnesota, 283 U.S. 697, 708 (1931), and Schenck v. United States, 249
U.S. 47, 52 (1919). What is needed here is a weighing, upon properly developed standards, of the broad
right of the press to print and of the very narrow right of the Government to prevent. Such standards
are not yet developed. The parties here are in disagreement as to what those standards should be. But
even the newspapers concede that there are situations where restraint is in order and is constitutional.
Mr. Justice Holmes gave us a suggestion when he said in Schenck,
"It is a question of proximity and degree. When a nation is at war many things that might be said
in time of peace are such a hindrance to its effort that their utterance will not be endured so
long as men fight and that no Court could regard them as protected by any constitutional right."
249 U.S., at 52 .
165
I therefore would remand these cases to be developed expeditiously, of course, but on a schedule
permitting the [403 U.S. 713, 762] orderly presentation of evidence from both sides, with the use of
discovery, if necessary, as authorized by the rules, and with the preparation of briefs, oral argument,
and court opinions of a quality better than has been seen to this point. In making this last statement, I
criticize no lawyer or judge. I know from past personal experience the agony of time pressure in the
preparation of litigation. But these cases and the issues involved and the courts, including this one,
deserve better than has been produced thus far.
It may well be that if these cases were allowed to develop as they should be developed, and to be tried
as lawyers should try them and as courts should hear them, free of pressure and panic and
sensationalism, other light would be shed on the situation and contrary considerations, for me, might
prevail. But that is not the present posture of the litigation.
The Court, however, decides the cases today the other way. I therefore add one final comment.
I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate
responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia
case, after a review of only the affidavits before his court (the basic papers had not then been made
available by either party), concluded that there were a number of examples of documents that, if in the
possession of the Post, and if published, "could clearly result in great harm to the nation," and he
defined "harm" to mean "the death of soldiers, the destruction of alliances, the greatly increased
difficulty of negotiation with our enemies, the inability of our diplomats to negotiate . . . ." I, for one,
have now been able to give at least some cursory study not only to the affidavits, but to the material
itself. I regret to say that from this examination I fear that Judge Wilkey's statements have possible
foundation. I therefore share [403 U.S. 713, 763] his concern. I hope that damage has not already been
done. If, however, damage has been done, and if, with the Court's action today, these newspapers
proceed to publish the critical documents and there results therefrom "the death of soldiers, the
destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of
our diplomats to negotiate," to which list I might add the factors of prolongation of the war and of
further delay in the freeing of United States prisoners, then the Nation's people will know where the
responsibility for these sad consequences rests.
[403 U.S. 713, 1]
166
United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland
No. 79-C-98
UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WISCONSIN
467 F. Supp. 990
March 28, 1979
MEMORANDUM AND ORDER [991]
WARREN, District Judge
On March 9, 1979, this Court, at the request of the government, but after hearing from both parties,
issued a temporary restraining order enjoining defendants, their employees, and agents from publishing
or otherwise communicating or disclosing in any manner any restricted data contained in the article:
"The H-Bomb Secret: How We Got It, Why We're Telling It."
In keeping with the Court's order that the temporary restraining order should be in effect for the
shortest time possible, a preliminary injunction hearing was scheduled for one week later, on March 16,
1979. At the request of the parties and with the Court's acquiescence, the preliminary injunction hearing
was rescheduled for 10:00 A.M. today in order that both sides might have additional time to file
affidavits and arguments. The Court continued the temporary restraining order until 5:00 P.M. today.
In order to grant a preliminary injunction, the Court must find that plaintiff has a reasonable likelihood
of success on the merits, and that the plaintiff will suffer irreparable harm if the injunction does not
issue. In addition, the Court must consider the interest of the public and the balance of the potential
harm to plaintiff and defendants.
Jurisdiction in this action is grounded on 42 U.S.C. § 2280, the Atomic Energy Act and 28 U.S.C. § 1345.
Under the facts here alleged, the question before this Court involves a clash between allegedly vital
security interests of the United States and the competing constitutional doctrine against prior restraint
in publication.
In its argument and briefs, plaintiff relies on national security, as enunciated by Congress in The Atomic
Energy Act of 1954, as the basis for classification of certain documents. Plaintiff contends that, in certain
areas, national preservation and self-interest permit the retention and classification of government
secrets. The government argues that its national security interest also permits it to impress classification
and censorship upon information originating in the public domain, if when drawn together, synthesized
and collated, such information acquires the character of presenting immediate, direct and irreparable
harm to the interests of the United States.
167
Defendants argue that freedom of expression as embodied in the First Amendment is so central to the
heart of liberty that prior restraint in any form becomes anathema. They contend that this is particularly
true when a nation is not at war and where the prior restraint is based on surmise or conjecture. While
acknowledging [992] that freedom of the press is not absolute, they maintain that the publication of the
projected article does not rise to the level of immediate, direct and irreparable harm which could justify
incursion into First Amendment freedoms.
Hence, although embodying deep and fundamental principles of democratic philosophy, the issue also
requires a factual determination by a federal court sitting in equity. At the level of a temporary
restraining order, or a preliminary injunction, such matters are customarily dealt with through affidavits.
Thus far the affidavits filed are numerous and complex. They come from individuals of learning and
renown. They deal with how the information at issue was assembled, what it means, and how injurious
the affiant believes it to be.
The Court notes the Amici curiae briefs filed by the American Civil Liberties Union, the Wisconsin Civil
Liberties Union, the Federation of American Scientists and the Fund for Open Information and
Accountability, Inc., and expresses thanks for them. The Court gave consideration to the suggestion that
a panel of experts be appointed to serve as witnesses for the Court to assist it in determining whether
the dangers of publication are as great as the government asserts or as inconsequential as The
Progressive states. However, the Court concluded that such a procedure really would merely proliferate
the opinions of experts arrayed on both sides of the issue.
Both parties have already marshaled impressive opinions covering all aspects of the case. The Court has
read all this material and has now heard extensive argument. It is time for decision.
From the founding days of this nation, the rights to freedom of speech and of the press have held an
honored place in our constitutional scheme. The establishment and nurturing of these rights is one of
the true achievements of our form of government.
Because of the importance of these rights, any prior restraint on publication comes into court under a
heavy presumption against its constitutional validity. New York Times v. United States, 403 U.S. 713, 91
S.Ct. 2140, 29 L. Ed. 2d 822 (1971).
However, First Amendment rights are not absolute. They are not boundless.
Justice Frankfurter dissenting in Bridges v. California, 314 U.S. 252, 282, 62 S. Ct. 190, 203, 86 L. Ed. 192
(1941), stated it in this fashion: "Free speech is not so absolute or irrational a conception as to imply
paralysis of the means for effective protection of all the freedoms secured by the Bill of Rights." In the
Schenck case, Justice Holmes recognized: "The character of every act depends upon the circumstances
in which it is done." Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470 (1931).
In Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Supreme Court specifically
recognized an extremely narrow area, involving national security, in which interference with First
Amendment rights might be tolerated and a prior restraint on publication might be appropriate. The
Court stated:
168
"When a nation is at war many things that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men fight and that no Court could regard them
as protected by any constitutional right." No one would question but that a government might prevent
actual obstruction to its recruiting service or the publication of the sailing dates of transports or the
number and location of troops. Id. at 716, 51 S. Ct. at 631 (citation omitted).
Thus, it is clear that few things, save grave national security concerns, are sufficient to override First
Amendment interests. A court is well admonished to approach any requested prior restraint with a great
deal of skepticism.
Juxtaposed against the right to freedom of expression is the government's contention that the national
security of this country could be jeopardized by publication of the article.
[993] The Court is convinced that the government has a right to classify certain sensitive documents to
protect its national security. The problem is with the scope of the classification system.
Defendants contend that the projected article merely contains data already in the public domain and
readily available to any diligent seeker. They say other nations already have the same information or the
opportunity to obtain it. How then, they argue, can they be in violation of 42 U.S.C. §§ 2274(b) and 2280
which purport to authorize injunctive relief against one who would disclose restricted data "with reason
to believe such data will be utilized to injure the United States or to secure an advantage to any foreign
nation . . ."?
Although the government states that some of the information is in the public domain, it contends that
much of the data is not, and that the Morland article contains a core of information that has never
before been published.
Furthermore, the government's position is that whether or not specific information is "in the public
domain" or has been "declassified" at some point is not determinative. The government states that a
court must look at the nature and context of prior disclosures and analyze what the practical impact of
the prior disclosures are as contrasted to that of the present revelation.
The government feels that the mere fact that the author, Howard Morland, could prepare an article
explaining the technical processes of thermonuclear weapons does not mean that those processes are
available to everyone. They lay heavy emphasis on the argument that the danger lies in the exposition of
certain concepts never heretofore disclosed in conjunction with one another.
In an impressive affidavit, Dr. Hans A. Bethe, whose affidavit was introduced by the government and
whose article, The Hydrogen Bomb: II, was a source document for Theodore Postol's affidavit I filed by
the defendants states that sizeable portions of the Morland text should be classified as restricted data
because the processes outlined in the manuscript describe the essential design and operation of
thermonuclear weapons. He later concludes "that the design and operational concepts described in the
manuscript are not expressed or revealed in the public literature nor do I believe they are known to
scientists not associated with the government weapons programs."
169
The Court has grappled with this difficult problem and has read and studied the affidavits and other
documents on file. After all this, the Court finds concepts within the article that it does not find in the
public realm concepts that are vital to the operation of the hydrogen bomb.
Even if some of the information is in the public domain, due recognition must be given to the human
skills and expertise involved in writing this article. The author needed sufficient expertise to recognize
relevant, as opposed to irrelevant, information and to assimilate the information obtained. The right
questions had to be asked or the correct educated guesses had to be made.
The ability of G. I. Taylor to calculate the yield of the first nuclear explosion from a Life magazine photo
demonstrates that certain individuals with some knowledge, ability to reason and extraordinary
perseverance may acquire additional knowledge without access to classified information, even though
the information thus acquired may not be obvious to others not so equipped or motivated. All of this
must be considered in resolving the issues before the Court.
Does the article provide a "do-it yourself" guide for the hydrogen bomb? Probably not. A number of
affidavits make quite clear that a Sine qua non to thermonuclear capability is a large, sophisticated
industrial capability coupled with a coterie of imaginative, resourceful scientists and technicians. One
does not build a hydrogen bomb in the basement. However, the article could possibly provide sufficient
information to allow a medium size nation to move faster in developing a hydrogen weapon. It could
provide a ticket to by-pass blind alleys.
[994] The Morland piece could accelerate the membership of a candidate nation in the thermonuclear
club. Pursuit of blind alleys or failure to grasp seemingly basic concepts have been the cause of many
inventive failures.
For example, in one of the articles submitted to the Court, the author described how, in the late 1930's,
physicists in various countries were simultaneously, but independently, working on the idea of a nuclear
chain reaction. The French physicists in their equation neglected to take full account of the fact that the
neutrons produced by fission could go on to provoke further fissions in a many-step process which is the
essence of a chain reaction. Even though this idea seems so elementary, the concept of neutron
multiplication was so novel that no nuclear physicists saw through the French team's oversight for about
a year.
Thus, once basic concepts are learned, the remainder of the process may easily follow.
Although the defendants state that the information contained in the article is relatively easy to obtain,
only five countries now have a hydrogen bomb. Yet the United States first successfully exploded the
hydrogen bomb some twenty-six years ago.
The point has also been made that it is only a question of time before other countries will have the
hydrogen bomb. That may be true. However, there are times in the course of human history when time
itself may be very important. This time factor becomes critical when considering mass annihilation
weaponry witness the failure of Hitler to get his V-1 and V-2 bombs operational quickly enough to
materially affect the outcome of World War II.
170
Defendants have stated that publication of the article will alert the people of this country to the false
illusion of security created by the government's futile efforts at secrecy. They believe publication will
provide the people with needed information to make informed decisions on an urgent issue of public
concern.
However, this Court can find no plausible reason why the public needs to know the technical details
about hydrogen bomb construction to carry on an informed debate on this issue. Furthermore, the
Court believes that the defendants' position in favor of nuclear non-proliferation would be harmed, not
aided, by the publication of this article.
The defendants have also relied on the decision in the New York Times case. In that case, the Supreme
Court refused to enjoin the New York Times and the Washington Post from publishing the contents of a
classified historical study of United States decision-making in Viet Nam, the so-called "Pentagon Papers."
This case is different in several important respects. In the first place, the study involved in the New York
Times case contained historical data relating to events that occurred some three to twenty years
previously. Secondly, the Supreme Court agreed with the lower court that no cogent reasons were
advanced by the government as to why the article affected national security except that publication
might cause some embarrassment to the United States.
A final and most vital difference between these two cases is the fact that a specific statute is involved
here. Section 2274 of The Atomic Energy Act prohibits anyone from communicating, transmitting or
disclosing any restricted data to any person "with reason to believe such data will be utilized to injure
the United States or to secure an advantage to any foreign nation."
Section 2014 of the Act defines restricted data. " "Restricted Data' means all data concerning 1) design,
manufacture, or utilization of atomic weapons; 2) the production of special nuclear material; or 3) the
use of special nuclear material in the production of energy, but shall not include data declassified or
removed from the Restricted Data category pursuant to section 2162 of this title."
As applied to this case, the Court finds that the statute in question is not vague or overbroad. The Court
is convinced that the terms used in the statute "communicates, transmits or discloses" include
publishing in a magazine.
[995] The Court is of the opinion that the government has shown that the defendants had reason to
believe that the data in the article, if published, would injure the United States or give an advantage to a
foreign nation. Extensive reading and studying of the documents on file lead to the conclusion that not
all the data is available in the public realm in the same fashion, if it is available at all.
What is involved here is information dealing with the most destructive weapon in the history of
mankind, information of sufficient destructive potential to nullify the right to free speech and to
endanger the right to life itself.
Stripped to its essence then, the question before the Court is a basic confrontation between the First
Amendment right to freedom of the press and national security.
171
Our Founding Fathers believed, as we do, that one is born with certain inalienable rights which, as the
Declaration of Independence intones, include the right to life, liberty and the pursuit of happiness. The
Constitution, including the Bill of Rights, was enacted to make those rights operable in everyday life.
The Court believes that each of us is born seized of a panoply of basic rights, that we institute
governments to secure these rights and that there is a hierarchy of values attached to these rights which
is helpful in deciding the clash now before us.
Certain of these rights have an aspect of imperativeness or centrality that make them transcend other
rights. Somehow it does not seem that the right to life and the right to not have soldiers quartered in
your home can be of equal import in the grand scheme of things. While it may be true in the long-run, as
Patrick Henry instructs us, that one would prefer death to life without liberty, nonetheless, in the shortrun, one cannot enjoy freedom of speech, freedom to worship or freedom of the press unless one first
enjoys the freedom to live.
Faced with a stark choice between upholding the right to continued life and the right to freedom of the
press, most jurists would have no difficulty in opting for the chance to continue to breathe and function
as they work to achieve perfect freedom of expression.
Is the choice here so stark? Only time can give us a definitive answer. But considering another aspect of
this panoply of rights we all have is helpful in answering the question now before us. This aspect is the
disparity of the risk involved.
The destruction of various human rights can come about in differing ways and at varying speeds.
Freedom of the press can be obliterated overnight by some dictator's imposition of censorship or by the
slow nibbling away at a free press through successive bits of repressive legislation enacted by a nation's
lawmakers. Yet, even in the most drastic of such situations, it is always possible for a dictator to be
overthrown, for a bad law to be repealed or for a judge's error to be subsequently rectified. Only when
human life is at stake are such corrections impossible.
The case at bar is so difficult precisely because the consequences of error involve human life itself and
on such an awesome scale.
The Secretary of State states that publication will increase thermonuclear proliferation and that this
would "irreparably impair the national security of the United States." The Secretary of Defense says that
dissemination of the Morland paper will mean a substantial increase in the risk of thermonuclear
proliferation and lead to use or threats that would "adversely affect the national security of the United
States."
Howard Morland asserts that "if the information in my article were not in the public domain, it should
be put there . . . so that ordinary citizens may have informed opinions about nuclear weapons."
Erwin Knoll, the editor of The Progressive, states he is "totally convinced that publication of the article
will be of substantial benefit to the United States because it will demonstrate that this country's security
does not lie in an oppressive and ineffective system of secrecy and classification but [996] in open,
honest, and informed public debate about issues which the people must decide."
172
The Court is faced with the difficult task of weighing and resolving these divergent views.
A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights. If a
preliminary injunction is issued, it will constitute the first instance of prior restraint against a publication
in this fashion in the history of this country, to this Court's knowledge. Such notoriety is not to be
sought. It will curtail defendants' First Amendment rights in a drastic and substantial fashion. It will
infringe upon our right to know and to be informed as well.
A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us
all. In that event, our right to life is extinguished and the right to publish becomes moot.
In the Near case, the Supreme Court recognized that publication of troop movements in time of war
would threaten national security and could therefore be restrained. Times have changed significantly
since 1931 when Near was decided. Now war by foot soldiers has been replaced in large part by war by
machines and bombs. No longer need there be any advance warning or any preparation time before a
nuclear war could be commenced.
In light of these factors, this Court concludes that publication of the technical information on the
hydrogen bomb contained in the article is analogous to publication of troop movements or locations in
time of war and falls within the extremely narrow exception to the rule against prior restraint.
Because of this "disparity of risk," because the government has met its heavy burden of showing
justification for the imposition of a prior restraint on publication of the objected-to technical portions of
the Morland article, and because the Court is unconvinced that suppression of the objected-to technical
portions of the Morland article would in any plausible fashion impede the defendants in their laudable
crusade to stimulate public knowledge of nuclear armament and bring about enlightened debate on
national policy questions, the Court finds that the objected-to portions of the article fall within the
narrow area recognized by the Court in Near v. Minnesota in which a prior restraint on publication is
appropriate.
The government has met its burden under section 2274 of The Atomic Energy Act. In the Court's
opinion, it has also met the test enunciated by two Justices in the New York Times case, namely grave,
direct, immediate and irreparable harm to the United States.
The Court has just determined that if necessary it will at this time assume the awesome responsibility of
issuing a preliminary injunction against The Progressive's use of the Morland article in its current form.
However, the Court is acutely aware of the old legal adage that "bad cases make bad law." This case in
its present posture will undoubtedly go to the Supreme Court because it does present so starkly the
clash between freedom of press and national security. Does it go there with the blessing of the entire
press? The Court thinks not. Many elements of the press see grave risk of permanent damage to First
Amendment freedoms if this case goes forward. They feel appellate courts will find, as this Court has,
that the risk is simply too great to permit publication.
Furthermore, if there is any one inescapable conclusion that one arrives at after wading through all
these experts' affidavits, it is that many wise, intelligent, patriotic individuals can hold diametrically
opposite opinions on the issues before us.
173
Recognizing that both sides at the moment may seem adamant, the Court nonetheless was greatly
impressed by the arguments in the Amicus brief submitted by the Federation of American Scientists
through its director, Dr. Jeremy J. Stone.
This group, with half of America's Nobel laureates in its ranks, urged The Progressive To recognize the
damage the article [997] could do to both nuclear non-proliferation policies and First Amendment rights.
It sees the dangers of the present confrontation and suggests that similar cases can arise in the future
involving this or other technologies. The group notes that it is possible for example, that a technology
such as recombinant DNA could someday surface means of destruction that ought not be published
while, at the same time, provoking crucial issues of public policy that badly need to be publicly
discussed.
The group suggests that the accommodating of such conflicting interests is not best done in the glare of
a judicial spotlight, but that the parties, seemingly at odds can, with effort, satisfy both their interests
with a non-legal resolution.
The government seeks only the deletion of certain technical material and, in the Court's opinion, would
have an interest in settling this case out of court. On the other hand, the Court believes that The
Progressive Has an obligation to its colleagues in the press and does not really require the objected-to
material in order to ventilate its views on government secrecy and the hydrogen bomb.
In this context, the Federation urges that the Court give the parties every last chance to try to resolve
the matter out-of-court, so as to simultaneously moot the case and set a desirable precedent for the
future.
NOW THEREFORE, acting on this suggestion, the Court herewith poses to the parties a final choice:
We will now adjourn until 2:00 P.M. At that time the case will be recalled. In the interim, each party is to
consider whether it would be willing to meet with a panel of five mediators appointed by the Court to
attempt to resolve the parties' differences.
The Court recognizes that today is the deadline for the May issue of The Progressive and that the
temporary restraining order expires at 5:00 P.M. this afternoon. If everyone is willing to attempt
mediation, the temporary restraining order would have to be extended by mutual agreement.
If the parties agree to mediation, each side will be asked to submit to the Court the names of two senior
weapons scientists and two representatives of the media. From these names the Court will select two
people from each category and will then itself approach a respected lawyer or retired jurist and ask that
person to chair the group. The given individuals would compose a mediating panel. This panel would
have to receive appropriate clearance.
The panel would meet with the parties and report back to the Court in 10 days on its progress or lack of
it, in dealing with the specific deletions at issue.
At the time of the report, the Court will then either dismiss the case by stipulation of the parties, or in
the event of inability to agree, issue a preliminary injunction.
174
If, at 2:00 P.M. either or both sides are unable to agree to this proposal, the Court will regretfully issue
the preliminary injunction.
SO ORDERED this 26th day of March, 1979, at Milwaukee, Wisconsin.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court, having this day entered a preliminary injunction restraining defendants, Pendente lite, from
publishing or otherwise disseminating restricted data contained in the manuscript which is the subject
of this action, hereby makes the following findings, of fact and conclusions of law pursuant to Rule 52(a)
of the Federal Rules of Civil Procedure:
FINDINGS OF FACT
1. The defendant Howard Morland is a free-lance writer specializing in energy and nuclear weapons
issues. His article, "Tritium; the New Genie" appeared in the February, 1979, issue of The Progressive
magazine.
2. Defendant, The Progressive, Inc., which publishes The Progressive magazine, has its principal place of
business in Madison, Wisconsin. [998]
3. Defendant Erwin Knoll is editor of The Progressive Magazine.
4. Defendant Samuel H. Day, Jr., is the managing editor of The Progressive magazine.
5. While on assignment for The Progressive magazine, defendant Morland completed, at the end of
February, an article describing the operation of a hydrogen bomb. The article was entitled, "The H-Bomb
Secret How We Got It, Why We're Telling It."
6. On February 27, 1979, a copy of the Morland article was delivered to the Department of Energy (DOE)
offices in Germantown, Maryland. Defendant Day stated in a letter to the Department of Energy
accompanying the article that the article contained technical information pertaining to hydrogen
weapon design and manufacture. In this letter Mr. Day stated that he would appreciate the Department
verifying the technical accuracy of the enclosures. Copies of this article were forwarded for review to
John A. Griffin, Director of Classification of the Department of Energy and to Duane C. Sewell, Assistant
Secretary of Energy for Defense Programs.
7. Based on their review of the article, Mr. Griffin and Mr. Sewell determined that a significant portion
of the article contained information that the Atomic Energy Act, 42 U.S.C. § 2014(y), requires to be
classified as Restricted Data. The Restricted Data contained in the article has not been declassified and
remains classified as Secret Restricted Data.
8. On March 1, 1979, Lynn R. Coleman, General Counsel of the Department of Energy, telephoned The
Progressive magazine and spoke with defendant Day and defendant Knoll. Mr. Coleman informed Mr.
Day and Mr. Knoll that he was in possession of a copy of the Morland article, and that, in the opinion of
the Department, the article contained Restricted Data, as defined in the Atomic Energy Act of 1954, as
amended. He further informed Mr. Day and Mr. Knoll that, in the view of the Department of Energy, the
175
Department of State and the Arms Control and Disarmament Agency, publication of the Restricted Data
contained in this article would injure the United States and would give an advantage to other nations.
He stated that the release of this information would be contrary to the United States' effort to prevent
the proliferation of nuclear weapons and requested that The Progressive refrain from publishing the
article.
9. On March 2, 1979, Duane Sewell met with representatives of The Progressive, including Mr. Day, Mr.
Knoll, and Ronald Carbon, publisher. He advised them that the Department of Energy had reviewed the
Morland manuscript and, based upon that review, had determined that it contains material which is
Secret Restricted Data. He further told the magazine's representatives that publication of the article
would constitute a violation of the Atomic Energy Act and would give an advantage to foreign nations in
the development of thermonuclear technology. Mr. Sewell assured the magazine's representatives that
the Department of Energy did not want to stop the publication of the entire manuscript but only those
portions which contained Secret Restricted Data. He suggested to The Progressive that they permit the
Government to work with them to recast the Secret Restricted Data portions of the manuscript so that
they would no longer be classified and publication could go forward.
10. On March 7, 1979, Mr. Gordon Sinykin, counsel for The Progressive, advised Mr. Coleman of the
Department of Energy that, after careful review of the matter, The Progressive intended to publish the
article. He stated that publication would proceed unless the United States promptly obtained a
temporary restraining order.
11. The complaint in this action was filed by the plaintiff, United States of America, in the United States
District Court, Western District of Wisconsin, on March 8, 1979.
12. On March 9, 1979, the Honorable James E. Doyle, United States District Judge, Western District of
Wisconsin, disqualified himself from this proceeding pursuant [999] to 28 U.S.C. § 455(a). The case was
subsequently transferred to the United States District Court for the Eastern District of Wisconsin.
13. On March 9, 1979, this Court held a hearing on the Government's request for a temporary
restraining order to enjoin the defendants, their employees, and agents from publishing or otherwise
disclosing in any manner any of the Restricted Data contained in the Morland article. After hearing from
both parties, the Court issued a temporary restraining order to be in effect for the shortest time possible
consistent with the opportunity for the Government to substantiate its claim at a hearing on the request
for a preliminary injunction. A preliminary injunction hearing was scheduled for one week later, on
March 16, 1979.
14. At the request of the parties, and with the Court's acquiescence, the preliminary injunction hearing
was rescheduled from March 16, 1979, to March 26, 1979, in order that both sides might have
additional time to file affidavits and briefs. The Court continued the temporary restraining order until
5:00 P.M. on Monday, March 26, 1979.
15. The Court has carefully read and studied the affidavits and other documents on file in this action and
concludes that the article in question contains concepts that are not found in the public realm, concepts
that are vital to the operation of the bomb. Although the Restricted Data portions of the article also
contain some information that has been previously disclosed in scattered public sources, the article
provides a more comprehensive, accurate, and detailed analysis of the overall construction and
176
operation of a thermonuclear weapon than any publication to date in the public literature. Although
various information in the public realm suggests a number of possible designs for a thermonuclear
weapon, nowhere in the public domain is there a correct description of the type of design used in
United States thermonuclear weapons.
16. Publication of the Restricted Data contained in the Morland article would be extremely important to
a nation seeking a thermonuclear capability, for it would provide vital information on key concepts
involved in the construction of a practical thermonuclear weapon. Once basic concepts are learned, the
remainder of the process may easily follow. The article could provide sufficient information to allow a
medium-size nation to move faster in developing a hydrogen weapon.
17. Publication of the Restricted Data contained in the article could materially reduce the time required
by certain countries to achieve a thermonuclear weapon capability.
18. Defendants have reason to believe that publication, or any other disclosure of the Secret Restricted
Data, would injure the United States or secure an advantage to a foreign nation, within the meaning of §
2274(b) of the Atomic Energy Act.
19. After careful review of the Morland article and other documents filed in this case, the Court finds
that publication or other disclosure of the Secret Restricted Data contained in the Morland article would
irreparably harm the national security of the United States.
20. The United States and its citizens will suffer irreparable harm and the public interest will be
disserved if a preliminary injunction, Pendente lite, is not issued. On balance, the defendants will not be
substantially harmed by the issuance of such a preliminary injunction.
21. Publication of the Restricted Data in the Morland article will result in direct, immediate and
irreparable damage to the United States by accelerating the capacity of certain non-thermonuclear
nations to manufacture thermonuclear weapons.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the subject matter of this action pursuant to 42 U.S.C. § 2280 and 28
U.S.C. § 1345.
2. Publication or other disclosure or communication of the Restricted Data contained in the Morland
article would likely constitute a violation of the Atomic Energy Act, 42 U.S.C. § 2274(b).
3. The pertinent provisions of the Atomic Energy Act, 42 U.S.C. § 2274(b) and § 2280, apply to the
defendants and are not constitutionally vague or over broad.
4. Because defendants intend imminently to publish the Restricted Data contained in the Morland
article, unless restrained by order of the court, plaintiff, United States of America, is entitled to a
preliminary injunction, Pendente lite, prohibiting publication or disclosure of the article pursuant to 42
U.S.C. § 2280.
177
5. In view of the showing of harm made by the United States, a preliminary injunction would be
warranted even in the absence of statutory authorization because of the existence of the likelihood of
direct, immediate and irreparable injury to our nation and its people. New York Times Co. v. United
States, 403 U.S. 713, 730, 91 S. Ct. 2140, 2149, 29 L. Ed. 2d 822 (Justice Stewart concurring); See also,
Near v. Minnesota, 283 U.S. 697, 716, 51 S. Ct. 625, 75 L. Ed. 1357 (1931).
6. The facts and circumstances as presented here fall within the extremely narrow recognized area,
involving national security, in which a prior restraint on publication is appropriate. Issuance of a
preliminary injunction does not, under the circumstances presented to the Court, violate defendants'
First Amendment rights.
7. Plaintiff has proven all necessary prerequisites for issuance of a preliminary injunction restraining
defendants from publishing or disclosing any Restricted Data contained in the Morland article until a
final determination in this action has been made by the Court.
SO ORDERED this 28th day of March, 1979, at Milwaukee, Wisconsin.
178
U.S. Supreme Court
NEBRASKA PRESS ASS'N v. STUART , 423 U.S. 1319 (1975)
423 U.S. 1319
NEBRASKA PRESS ASSOCIATION et al., Applicants,
v.
Hugh STUART, Judge, District Court of Lincoln County, Nebraska.
No. A-426.
Nov. 13, 1975.
Mr. Justice BLACKMUN, Circuit Justice.
This is an application for stay of an order of the District Court of Lincoln County, Neb., that restricts
coverage by the media of details concerning alleged sexual assaults upon and murders of six members of
a family in their home in Sutherland, Neb.; concerning the investigation and development of the case
against the accused; and concerning the forthcoming trial of the accused. The applicants are Nebraska
newspaper publishers, national newswire services, media associations, a radio station, and employees of
these entities.
The accused is the subject of a complaint filed in the County Court of Lincoln County, Neb., on October
19, 1975. The complaint was amended on October 22 and, as so amended, charged the accused with
having perpetrated the assaults and murders on October 18. On October 21, the prosecution filed with
the County Court a motion for a restrictive order. This notion alleged "a reasonable lik(e)lihood of
prejudicial news which would make difficult, if not impossible, the impaneling of an impartial jury and
tend to prevent a fair trial should the defendant be bound over to trial in the District Court if testimony
of witnesses at the preliminary hearing is [423 U.S. 1319 , 1320] reported to the public." The defense
joined in the prosecution's request and also moved that the preliminary hearing be closed to the public
and the press.
Refusing the latter request, the County Court held an open preliminary hearing on October 22. On that
day it bound the accused over to the District Court. It however, did issue a protective order. The court
found that there was "a reasonable likelihood of prejudicial news which would make difficult, if not
impossible, the impaneling of an impartial jury." The court then ordered that no party to the action, no
attorney connected with the defense or prosecution, no judicial officer or employee, and no witness or
"any other person present in Court" was to "release or authorize the release for public dissemination in
any form or matter whatsoever any testimony given or evidence adduced during the preliminary
hearing." It went on to order that no "news media disseminate any information concerning this matter
apart from the preliminary hearing other than as set forth in the Nebraska Bar-Press Guidelines for
Disclosure and Reporting of Information Relating to Imminent or Pending Criminal Litigation." Excepted,
however, were (1) factual statements of the accused's name, age, residence, occupation, and family
status; (2) the circumstances of the arrest (time and place, identity of the arresting and investigating
officers and agencies, and the length of the investigation);
179
(3) the nature, substance and text of the charge; (4) quotations from, or any reference without
comment to , public records or communications theretofore disseminated to the public; (5) the
scheduling and result of any stage of the judicial proceeding held in open court; (6) a request for
assistance in obtaining evidence; and (7) a request for assistance in obtaining the names of possible
witnesses. The court also ordered that a copy of the pre- [423 U.S. 1319 , 1321] liminary hearing
proceedings was to be made available to the public at the expiration of the order.
A copy of the Bar-Press Guidelines was attached to the court's order and was incorporated in it by
reference. In their preamble the Guidelines are described as a "voluntary code." They speak of what is
"generally" appropriate or inappropriate for the press to disclose or report. The identity of the
defendant, and also the victim, may be reported along with biographical information about them. The
circumstances of the arrest may be disclosed, as may the evidence against the defendant, "if, in view of
the time and other circumstances, such disclosure and reporting are not likely to interfere with a fair
trial." Confessions or other statements of the accused may not be disclosed, unless they have been
made "to representatives of the news media or to the public." Also barred from disclosure are opinions
as to the guilt of the accused, predictions of the outcome of trial, results of examinations and tests,
statements concerning the anticipated testimony of witnesses, and statements made in court but out of
the presence of the jury "which, if reported, would likely interfere with a fair trial." The media are
instructed by the Guidelines that the reporting of an accused's prior criminal record "should be
considered very carefully" and "should generally be avoided." Photographs are permissible provided
they do not "deliberately pose a person in custody."
The applicants forthwith applied to the District Court of Lincoln County for vacation of the County
Court's order. The defense, in turn, moved for continuation of the order and that all future proceedings
in the case be closed. The respondent, as judge of the District Court, granted a motion by the applicants
to intervene in the case. On October 27 he terminated the County Court's order and substituted his
own. By its order of that [423 U.S. 1319 , 1322] date the District Court found that "there is a clear and
present danger that pre-trial publicity could impinge upon the defendant's right to a fair trial." It
ordered that the pretrial publicity in the case be in accord with the above mentioned Guidelines as
"clarified by the court." The clarification provisions were to the effect that the trial of the case
commences when a jury is impaneled and that all reporting prior to that event would be pretrial
publicity; that it appeared that the defendant had made a statement or confession "and it is
inappropriate to report the existence of such statement or the contents of it"; that it appeared that the
defendant may have made statements against interest to three named persons and may have left a
note; that "the nature of such statements, or the fact that such statements were made, or the nature of
the testimony of these witnesses with references to such statements in the preliminary hearing will not
be reported"; that the testimony of the pathologist witness
"dealing with technical subjects, tests or investigations performed or the results thereof, or his
opinions or conclusions as a result of such tests or investigations will not be reported"; that "the
identity of the person or persons allegedly sexually assaulted or the details of any alleged
assault by the defendant will not be reported"; that is to say, " the fact of the entering of this
order limiting pre-trial publicity and the adoption of the Bar-Press Guidelines may be reported,
but specific reference to confessions, statements against interest, witnesses or type of evidence
to which this order will apply will not be reported."
The applicants then sought from the District Court a stay of its order. Not receiving relief there, they
applied to the Supreme Court of Nebraska for an immediate [423 U.S. 1319 , 1323] stay and also for
180
leave to commence an original action in the nature of mandamus and/or prohibition to vacate the
District Court order of October 27. On November 4, counsel for the applicants was advised by the Clerk
of tte Supreme Court that under that court's rules "all motions must be noticed for a day certain when
the court is regularly in session," and that the "next date for submission of such a matter will be
Monday, December 1, 1975, and I suggest that your motion be noticed for that date."
On November 5, the applicants, reciting that the "District Court and the Nebraska Supreme Court have
declined to act on the requested relief," filed with this Court, directed to me as Circuit Justice, the
present application for stay of the order of the District Court in and for Lincoln County, Neb. Because of
the obvious importance of the issue and the need for immediate action, and because of the apparent
similarity of the facts to those that confronted Mr. Justice POWELL as Circuit Justice, in the case of
Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1301 , 42 L.E.2d 17 (1974), I asked for prompt
responses. That request has been honored and responses respectively were received on November 10
and 11 from tte Attorney General of Nebraska on behalf of the respondent judge, from the Lincoln
County attorney on behalf of the State, and from counsel for the accused.
I was advised yesterday, however, that on November 10 the Supreme Court of Nebraska issued a per
curiam statement reciting that the applicants have petitioned that court for leave to file their petition
for a writ of mandamus or other appropriate relief with respect to the District Court order of October
27, and further reciting that during that court's "consideration of the application and the request for
stay of the order, we are reliably informed that the relators have filed with the Supreme [423 U.S. 1319 ,
1324] Court of tte United States an application or a request that that court act to accomplish the same
purposes to be accomplished by their request to us to exercise our original jurisdiction," and then
providing:
"The existence of the two concurrent applications could put this court in the position of
exercising parallel jurisdiction with the Supreme Court of the United States. We deem this
inadvisable. Accordingly, the matter is continued until the Supreme Court of the United States
has made known whether or not it will accept jurisdiction in the matter."
The issue raised is one that centers upon cherished First and Fourteenth Amendment values. Just as Mr.
Justice Powell observed in Times- Picayune, 419 U.S., at 1305 , the case "presents a fundamental
confrontation between the competing values of free press and fair trial, with significant public and
private interests balanced on both sides." The order in question obviously imposes significant prior
restraints on media reporting. It therefore comes to me "bearing a heavy presumption against its
constitutional validity.' " New York Times Co. v. United States, 403 U.S. 713, 714 , 2141 ( 1971). But we
have also observed that the media may be prohibited from publishing information about trials if the
restriction is "necessary to assure a defendant a fair trial before an impartial tribunal." Branzburg v.
Hayes, 408 U.S. 665, 685 , 2658 (1972). See Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S., at
1307 ; Newspapers, Inc. v. Blackwell, 421 U.S. 997 (1975).
It is apparent, therefore, that if no action on the applicants' application to the Supreme Court of
Nebraska could be anticipated before December 1, as the above-described communication from that
court's clerk intimated, a definitive decision by the State's highest [423 U.S. 1319 , 1325] court on an
issue of profound constitutional implications, demanding immediate resolution, would be delayed for a
period so long that the very day-by-day duration of that delay would constitute and aggravate a deprival
of such constitutional rights, if any, that the applicants possess and may properly assert. Under those
circumstances, I would not hesitate promptly to act.
181
It appears to me, however, from the Nebraska court's per curiam statement that it was already
considering the applicants' application and request for stay that had been submitted to that tribunal.
That court deferred decision, it says, because of the pendency of the similar application before me, and
because it deemed inadvisable simultaneous consideration of the respective applications in Nebraska
and here in Washington. Accordingly, the matter was "continued" until it was known whether I would
act.
It is highly desirable, of course, that the issue, concerning, as it does, an order by a Nebraska state court,
should be decided in the first instance by the Supreme Court of Nebraska, and that the pendency of the
application before me should not be deemed to stultify that court in the performance of its appropriate
constitutional duty. The application, after all, was submitted to me on the assumption that action by the
Nebraska court would not be forthcoming until after a submission to be scheduled no earlier than
December 1 and on the further assumption that the District Court's order satisfied the requirements of
28 U.S.C. 1257. On the expectation, which I think is now clear and appropriate for me to have, that the
Supreme Court of Nebraska, forthwith and without delay, will entertain the applicants' application made
to it, and will promptly decide it in the full consciousness that "time is of the essence," [423 U.S. 1319 ,
1326] hereby give the Supreme Court of Nebraska that assurance it desired that, at least for the
immediate present, I neither issue not finally deny a stay on the papers before me. My inaction, of
course, is without prejudice to the applicants to reapply to me should prompt action not be
forthcoming.
182
United States Court of Appeals for the Eleventh Circuit
United States v. Noriega
Stuart F. Pierson, Daniel M. Waggoner, Davis, Wright, Tremaine, Washington, D.C., Steven W. Korn, TBS,
Atlanta, Ga., Terry Bienstock, Frates, Bienstock & Sheehe, Miami, Fla., for appellants.
Frank Rubino, Coconut Grove, Fla., Jon May, Miami, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
On Petition for Writ of Mandamus or Prohibition to the United States District Court for the Southern
District of Florida.
Before JOHNSON, HATCHETT and BIRCH, Circuit Judges.
PER CURIAM:
This matter is before us on the "emergency motion" of appellants Cable News Network, Inc. and Turner
Broadcasting System, Inc. (collectively "CNN") to vacate three orders issued by the United States District
Court for the Southern District of Florida (the "District Court"). This case presents a difficult question
regarding the District Court's responsibility to balance the Sixth Amendment right to a fair trial of the
defendant, General Manuel Antonio Noriega ("Noriega"), with CNN's First Amendment right to be free
from prior restraints against the broadcasting of newsworthy information.
I. BACKGROUND
General Noriega is presently incarcerated at the Metropolitan Correctional Center ("MCC") in Dade
County, Florida. CNN wishes to broadcast recordings of telephone conversations between Noriega and
his defense counsel, which were allegedly taped by the government while Noriega was in prison and
obtained by CNN from an undisclosed source. Case No. 90-5926 is CNN's appeal of an oral order that
prohibits it from broadcasting certain tape recordings in its possession until 6:00 p.m. on November 8,
1990. Case No. 90-5927 is CNN's appeal from two written orders of the District Court.1 Subsequent to
the filing of the above-described motions by CNN, it filed an additional petition, denominated
"Appellants' Petition for a Writ of Mandamus or Prohibition," in which CNN seeks an order from this
Court "directing the District Court below to refrain from hearing a Motion for Contempt filed by Manuel
Antonio Noriega" and seeking disqualification of District Court Judge William Hoeveler pursuant to 28
U.S.C. Sec. 455 (No. 90-5932).
At the outset, we note that this Court lacks jurisdiction to hear Case No. 90-5926 because the appeal is
from an oral order that has not been entered on the docket of the District Court. See Fed.R.App.P. 4(a).
Accordingly, that appeal did not divest the District Court of jurisdiction to enter the two written orders
that are the subject of Case No. 90-5927. Noriega originally petitioned the District Court for injunctive
relief, and CNN has framed its appeal as an "Emergency Motion To Vacate An Unconstitutional Prior
Restraint," but the case is not appealable in its present posture.2 In any event, CNN's motion is more
properly viewed as a petition for a writ of mandamus against the District Court to correct an abuse of
discretion.3 See Goldblum v. National Broadcasting Corp., 584 F.2d 904, 906 n. 2 (9th Cir.1978); see also
183
In re: Capital Cities/ABC, Inc., 918 F.2d 140 (11th Cir.1990). Accordingly, with respect to Case No. 905927, we will treat CNN's motion as a petition for mandamus relief.
In his "Memorandum Of Law In Support Of Motion For Injunctive Relief" ("Noriega's Motion"), Noriega
sought to prevent CNN from broadcasting the recorded conversations between Noriega and his
attorneys. He did not seek to enjoin CNN from reporting on the government's taping of the
conversations, and argued that "an order directing CNN not to broadcast the tapes is sufficiently narrow
[to] protect the interests of the press as well as the defendant."4 Noriega's Motion at 6. Although the
restraint imposed by the District Court could arguably be read to embrace the CNN news report about
the recordings as well as the recordings themselves, this order will only address the subject matter of
Noriega's Motion, the recorded conversations between Noriega and his defense team.5
The District Court in entering the TRO, in an effort to maintain the status quo pending a determination
on the merits, commented:
... Assuming, however, that there are at least some circumstances in which the First Amendment
prohibits the prior restraint of even privileged attorney-client communication, the Supreme Court's
pronouncements on the doctrine of prior restraint suggest that a factual inquiry is required.... As was
stated in the court's Order, the contents of the tape recordings were not before the court. Thus, the
court was in effect being asked to make a factual determination without being allowed to review the
facts. On this point, it is important to note that CNN is in possession of the tapes, and has resisted
turning them over to the court for review. It seems fundamentally unfair to allow CNN to benefit from
its refusal to disclose the contents of the tapes to the court--that is, to allow CNN to argue that no prior
restraint should issue because no clear and immediate harm is apparent when the only reason that no
clear and immediate harm yet appears is because CNN has so far prevented this court from reviewing
the content of the tapes in its possession. In response to the portion of the court's Order requiring
production of the tapes to this court for the Magistrate's review, CNN argues that the court should
compel production of the tapes from the Government before looking to CNN. 1
1. The court notes that a review of the tapes in the Government's possession would not necessarily
allow the court to determine whether or not disclosure of CNN's tapes would impair Noriega's right to a
fair trial. It is entirely possible that CNN is in possession of communications between Noriega and his
lawyers and staff which the Government did not record, since it appears that the Government did not
tape all of Noriega's attorney-client conversations. The communications in CNN's possession might have
been recorded from a location outside of the prison where Noriega is incarcerated.
The court herein wishes to emphasize that its Order was not a decision on the merits of the request for
injunction, but rather a temporary restraint until such time as the Magistrate could review the tapes and
permit this court to make a determination based on the merits.... But the unique nature of the problem
facing this court, unlike other courts which have faced this issue, is that no such determination was nor
is possible without knowing the precise contents of the speech sought to be restrained, here the
privileged attorney-client communications in CNN's possession.
II. DISCUSSION
A. The District Court's Obligation When Confronted With Allegations Of Prejudicial Publicity
184
"[F]ree speech and fair trials are two of the most cherished policies of our civilization, and it would be a
trying task to choose between them." Bridges v. California, 314 U.S. 252, 260, 62 S.Ct. 190, 192, 86 L.Ed.
192 (1941). Within the context of pretrial and trial proceedings, a district court often is called upon to
make this critical and difficult choice.6 Balancing the First and Sixth Amendment concerns involved in a
widely publicized, hence "sensational", criminal case, the former Fifth Circuit concluded that the trial
court is accorded broad discretion to accomplish its primary responsibility of ensuring that the accused
has a fair trial:
The right of access to criminal proceedings becomes a highly controversial issue when First Amendment
questions must be analyzed in conjunction with competing Sixth Amendment considerations. "A heavy
obligation rests on trial judges to effectuate the fair-trial guarantee of the Sixth Amendment." United
States v. Columbia Broadcasting System, Inc., 497 F.2d 102, 104 (5th Cir.1974). "Given the pervasiveness
of modern communications and the difficulty of effacing prejudicial publicity from the minds of the
jurors, trial courts must take strong measures to ensure that the balance is never weighed against the
accused." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). In a
widely publicized case, "the right of the accused to trial by an impartial jury can be seriously threatened
by the conduct of the news media prior to and during trial." Report of the Committee on the Operation
of the Jury System on the "Free Press-Fair Trial" Issue, 45 F.R.D. 391, 394 (1968).
Thus, it is the trial judge's primary responsibility to govern judicial proceedings so as to ensure that the
accused receives a fair, orderly trial comporting with fundamental due process. The trial judge is
therefore granted broad discretion in ordering the daily activities of his court. Id. at 401. "[A] trial judge
should have the authority to adopt reasonable measures to avoid injury to the parties by reason of
prejudicial or inflammatory publicity." Columbia Broadcasting System, Inc. v. Young, supra, 522 F.2d at
241 [6th Cir.1975 (Per Curiam)]. See also, United States v. Schiavo, supra, 504 F.2d at 6 [3d Cir.1974];
United States v. Columbia Broadcasting System, Inc., supra, 497 F.2d at 106-07 [5th Cir.1974]. Within
this discretion, therefore, the district judge can place restrictions on parties, jurors, lawyers, and others
involved with the proceedings despite the fact that such restrictions might affect First Amendment
considerations. Sixth Amendment rights of the accused must be protected always. United States v.
Columbia Broadcasting System, Inc., supra; United States v. Schiavo, supra.
United States v. Gurney, 558 F.2d 1202, 1209-10 (5th Cir.1977) (emphasis added), cert. denied, 435 U.S.
968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); see Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 570, 96 S.Ct.
2791, 2808, 49 L.Ed.2d 683 (1976) ("This Court has frequently denied that First Amendment rights are
absolute and has consistently rejected the proposition that a prior restraint can never be employed.");
Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965) (The right to a fair trial is so
basic to our legal system that it has been called "the most fundamental of all freedoms."); In re
Application of Dow Jones & Co., 842 F.2d 603, 609 (2d Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 377,
102 L.Ed.2d 365 (1988) ("When the exercise of free press rights actually tramples upon Sixth
Amendment rights, the former must nonetheless yield to the latter.").
Furthermore, the Supreme Court has held that "[t]he First Amendment generally grants the press no
right to information about a trial superior to that of the general public." Nixon v. Warner
Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1318, 55 L.Ed.2d 570 (1978); Gurney, 558 F.2d at
1208. The general public has no right of access to private communications between a defendant and his
counsel. The Fifth Circuit has upheld a district court's denial of broadcasting stations' separate requests
to copy for public broadcast audiotaped discussions, which occurred in a "sting" operation, between
Federal Bureau of Investigation agents and defendants. Belo Broadcasting Corp. v. Clark, 654 F.2d 423
185
(5th Cir. Unit A Aug. 1981). The Fifth Circuit specifically was concerned with protecting the integrity of
the pending criminal trial of one of the defendants, L.G. Moore,7 and determined that the Constitution
did not accord the broadcasting stations the right to copy the tapes for public broadcast. Id. at 427. "It is
better to err, if err we must, on the side of generosity in the protection of a defendant's right to a fair
trial before an impartial jury." Id. at 431.
Notwithstanding the District Court's broad discretion to balance First Amendment interests with a
criminal defendant's Sixth Amendment right to a fair trial, a conclusory representation that publicity
might hamper a defendant's right to a fair trial is insufficient to overcome the protections of the First
Amendment. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 15, 106 S.Ct. 2735, 2744, 92 L.Ed.2d
1 (1986) (Press-Enterprise II ) ("The First Amendment right of access cannot be overcome by the
conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]."); United
States v. Columbia Broadcasting Sys., Inc., 497 F.2d 102, 104 (5th Cir.1974) ("[B]efore a prior restraint
may be imposed by a judge, even in the interest of assuring a fair trial, there must be 'an imminent, not
merely a likely, threat to the administration of justice. The danger must not be remote or even probable;
it must immediately imperil.' " (quoting Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed.
1546 (1947))).
In the context of a trial court's decision to close a preliminary hearing to protect a defendant's right to a
fair trial, the Supreme Court required specific factual findings that: 1) there is a substantial probability
that the defendant's right to a fair trial will be prejudiced by the publicity; 2) there is a substantial
probability that closure would prevent that prejudice; and 3) reasonable alternatives to closure cannot
adequately protect the defendant's fair trial rights. Press-Enterprise II, 478 U.S. at 14, 106 S.Ct. at 2743.
The purpose of requiring specific findings is to demonstrate that " 'closure is essential to preserve higher
values and is narrowly tailored to serve that interest.' " 478 U.S. at 13-14, 106 S.Ct. at 2743 (quoting
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984)
(Press-Enterprise I )); see Belo Broadcasting Corp., 654 F.2d at 430 ("[T]he decision as to access is one
best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant
facts and circumstances of the particular case."); Columbia Broadcasting Sys., 497 F.2d at 106 (For "a
danger [to be] sufficient to warrant a prior restraint, it is basic constitutional law that the limitation can
be no broader than necessary to accomplish the desired goal."). In the context of a suppression hearing,
the Supreme Court directed the trial court, considering closure because of privacy interests implicated in
wiretapped conversations, to determine "whose privacy interests might be infringed, how they would
be infringed, what portions of the tapes might infringe them, and what portion of the evidence
consisted of the tapes." Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31 (1984).
The Supreme Court has recognized that prejudicial pretrial publicity can defeat a defendant's right to a
fair trial by an impartial jury. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); see
Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907) ("The theory of our
system is that the conclusions to be reached in a case will be induced only by evidence and argument in
open court, and not by any outside influence, whether of private talk or public print."). The Court has
placed an affirmative duty on trial courts to guard against prejudicial pretrial publicity:
To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to
minimize the effects of prejudicial pretrial publicity. And because of the Constitution's pervasive concern
for these due process rights, a trial judge may surely take protective measures even when they are not
strictly and inescapably necessary.
186
Gannett Co. v. DePasquale, 443 U.S. 368, 378, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979) (citation
omitted). Even if the attorney-client communications in this case were determined not to be privileged,
the District Court may decide that the disclosure of these communications would constitute an
impediment to Noriega's fair trial.
Under Supreme Court and Eleventh Circuit precedent, the District Court's determination of privilege
cannot be conclusory, but must be stated definitively and explicitly based on the particular facts and
circumstances of this case. See Gurney, 558 F.2d at 1211 ("The district court's rulings denying press
access implemented a legitimate governmental interest in securing for the accused the fair trial
guaranteed them by the Sixth Amendment. The court's actions bore a reasonable relation to the
achievement of that purpose."). We emphasize that the District Court must delineate carefully its
reasons for proscribing the broadcast of the tapes in question, guided by the three considerations of
Press-Enterprise II. Particular attention should be given to the Sixth Amendment concern for an
impartial jury. See Belo Broadcasting Corp., 654 F.2d 423.
The District Court must possess the subject tapes in order to make its in camera determination of
whether the attorney-client communications are privileged or, while not privileged, are of such a nature
that disclosure would impair Noriega's Sixth Amendment rights. We are troubled by CNN's refusal to
obey the District Court's order to release the tapes in question to the court for review.8
With national and international significance and implications, Noriega's trial has received
unprecedented media coverage. In light of this status, "[t]he Sixth Amendment's guarantee of an
impartial jury ... is an obligation of the nation, not the accused. It is not his duty to provide an impartial
jury." Levine v. United States District Court, 764 F.2d 590, 602 (9th Cir.1985), cert. denied, 476 U.S. 1158,
106 S.Ct. 2276, 90 L.Ed.2d 719 (1986). In our nation, the courts are charged with safeguarding a
defendant's right to a fair trial and with cautiously balancing First Amendment and Sixth Amendment
interests. "It is not asking too much to suggest that those who exercise First Amendment rights in
newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair
trial by unbiased jurors." Nebraska Press Ass'n, 427 U.S. at 560, 96 S.Ct. at 2803.
B. The Existence Of The Attorney-Client Privilege As It Relates To The District Court's Review And
Analysis Of Potential Harm To Noriega
The purpose of the attorney-client privilege is to encourage open and complete communication
between a client and his attorney by eliminating the possibility of subsequent compelled disclosure of
their confidential communications. United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir.), cert. denied,
484 U.S. 987, 108 S.Ct. 505, 98 L.Ed.2d 503 (1987). In order to invoke this privilege, the claimant must
establish the following:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the
communication was made (a) is [the] member of a bar of a court, or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3) the communication relates to a fact of
which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some
legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has
been (a) claimed and (b) not waived by the client.
187
United States v. Kelly, 569 F.2d 928, 938 (5th Cir.), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d
123 (1978) (quoting In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir.1975)).
The attorney-client privilege is not absolute. Because it "serves to obscure the truth, ... it should be
construed as narrowly as is consistent with its purpose." Suarez, 820 F.2d at 1160. Thus, this court has
developed a two-part analysis to determine when the attorney-client privilege protects a
communication between an attorney and his client from government intrusion.9 A communication
between an attorney and his client will be protected if it is: "(1) intended to remain confidential and (2)
under the circumstances was reasonably expected and understood to be confidential." United States v.
Bell, 776 F.2d 965, 971 (11th Cir.1985) (emphasis in original), cert. denied, 477 U.S. 904, 106 S.Ct. 3272,
91 L.Ed.2d 563 (1986) (quoting United States v. Melvin, 650 F.2d 641, 645 (5th Cir. Unit B 1981)).
In applying the law surrounding the attorney-client privilege to the facts of this case we will first assume,
for the purpose of discussion, that Noriega did sign a valid release evidencing his understanding that all
of his telephone conversations, including those with members of his defense team, would be
recorded.10 Under such circumstances, it is conceivable that the District Court could find that Noriega's
attorney-client privilege would not prohibit the government's recording of Noriega's telephone
conversations with his defense attorneys because he had no reasonable expectation of privacy.
However, this is a matter to be addressed by the District Court. If Noriega did intend his conversations
with his defense attorneys to be confidential, after signing a release, the District Court would be
required to ascertain whether this expectation was reasonable.
It is a "bedrock principle that the attorney-client privilege is the client's and his alone. If the client wishes
to waive it, the attorney may not assert it, either for the client's or his own benefit." United States v.
Juarez, 573 F.2d 267, 276 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978). Thus,
it is also conceivable that the District Court, after examining the telephone usage release signed by
Noriega, may determine that Noriega did waive his attorney-client privilege as to the recorded
conversations. If this is the case, the privilege may not be assertable. Again, this is a matter for
determination by the District Court.
The determination of whether the telephonic communications between Noriega and his defense
counsel are privileged, while not necessarily dispositive of whether such communications should be
publicly broadcast, would be relevant to the District Court's assessment of potential harm to Noriega's
right to a fair trial.
III. CONCLUSION
It is manifest that the District Court has been presented a delicate, difficult and important task requiring
it to balance the press and public's First Amendment rights, the Sixth Amendment rights of the accused,
and the public's expectation that the trial will be fair and held before an impartial jury. However, CNN
has shackled the District Court by refusing that court's reasonable request to review the audio tapes it
has in its possession and which CNN desires to broadcast. While appealing to our nation's judicial system
for relief, CNN is at the same time defiant of that system's reasonable directions.
The foregoing analysis compels the conclusion that the First Amendment interests of the press and the
public will be best served by immediate production of the tapes held by CNN so that the District Court
can conduct the difficult balancing of constitutional rights required under these circumstances, an
188
obligation which the District Court is required to discharge. After review of such tapes, it is entirely
conceivable that the District Court may determine that the disclosure of only portions of such tapes
would threaten the Sixth Amendment rights of Noriega. Under such circumstances the accused's Sixth
Amendment right to a fair trial is properly balanced against the First Amendment rights of the press and
public. At this juncture, however, we are required to speculate as a result of CNN's refusal to produce
the tape recordings.
No litigant should continue to violate a district court's order and attempt to have that district court's
order reviewed at the same time.
Accordingly, for the reasons stated above, we DENY the initial petition for mandamus relief, CNN's
request for entry of a stay of the District Court's TRO and its request for oral argument (Case No. 905927) and DENY CNN's subsequent petition (Case No. 90-5932).
The first written order, dated November 8, 1990, continued the temporary restraint ("TRO") in the oral
order until CNN produced the tape recordings in its possession so the District Court could review the
contents of those recordings to reach a decision on the merits. The second written order, dated
November 9, 1990, clarified the first written order and specified that the restraint would remain in
effect for up to ten days, or until such lesser time as the District Court needed to decide the issue on the
merits after review of the tape recordings
McDougald v. Jenson, 786 F.2d 1465, 1472 (11th Cir.) ("It is well settled in this circuit that a TRO is not
ordinarily appealable."), cert. denied, 479 U.S. 860, 107 S.Ct. 207, 93 L.Ed.2d 137 (1986). See Belo
Broadcasting Corp. v. Clark, 654 F.2d 423, 426 (5th Cir. Unit A Aug.1981)
The Supreme Court has stated that "the writ of mandamus is an extraordinary remedy, to be reserved
for extraordinary situations." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108
S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988). Even if exceptional circumstances exist to justify mandamus
relief, however, the party seeking mandamus bears the burden of demonstrating a "clear and
indisputable" right to issuance of the writ. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct.
145, 148, 98 L.Ed. 106 (1953)
This court has reviewed the videotape of the proposed news story (which was broadcast once on
November 7, 1990 prior to entry of the TRO) and notes, as represented in CNN's brief, that "[t]he aural
content of the tape [of attorney-client communications] is not audible in the telecast." We also observe
that Noriega's defense counsel, Mr. Frank A. Rubino ("Rubino") cooperated with CNN by reviewing an
audio tape of a conversation purportedly between Noriega and Ms. Cristina Machin ("Machin")
(Rubino's secretary and Spanish-language interpreter). Rubino verified the authenticity of the tape
recording. A portion of the interview between a CNN reporter, Rubino and Machin in Rubino's office
appears in the telecast. With respect to such conduct, we are mindful of the Supreme Court's
admonition that "[c]ollaboration between counsel and the press as to information affecting the fairness
of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary
measures." Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966) (cited
with approval in Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683
(1976))
189
We have been advised that CNN, in disregard and defiance of the District Court's explicit restraining
order, broadcast portions of some of the purported attorney-client communications
The Supreme Court has recognized a First Amendment right of access to criminal trials. See PressEnterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I );
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality opinion). Right
of access to pretrial proceedings is determined on a case by case basis, focusing on the circumstances
involved in the case under review. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct.
2735, 2740, 92 L.Ed.2d 1 (1986) (Press-Enterprise II ); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S.
211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61
L.Ed.2d 608 (1978). As emphasized by the Court in Press-Enterprise II, consideration should be given as
to whether the matter under scrutiny historically has been open to the press and the public, 478 U.S. at
8, 106 S.Ct. at 2740. As noted hereafter, the communications between a criminal defendant and his
defense counsel historically have been private, even where such communications are not privileged
In pertinent part, the district court's opinion states:
Widespread publication of these tapes prior to trial will severely prejudice Mr. Moore's sixth
amendment right to a fair trial, as well as potentially deny him rights guaranteed by the fourth and fifth
amendments. Moreover, if the tapes are prematurely heard by the public, this court would be severely
hampered in selecting a fair and impartial jury in the forthcoming trial.
Belo Broadcasting Corp., 654 F.2d at 425.
In United States v. Columbia Broadcasting Sys., Inc., 497 F.2d 107, 109 (5th Cir.1974), the former Fifth
Circuit found that the district court held Columbia Broadcasting System, Inc. (CBS) in criminal contempt
for telecasting sketches of scenes from a publicized criminal trial in defiance of the court's order, but
remanded the case for trial of the contempt action before another judge instead of the trial judge who
ordered CBS not to televise the sketches
Because "a communication between an attorney and his client that is protected by the common law
attorney-client privilege is also protected from government intrusion by the sixth amendment," United
States v. Blasco, 702 F.2d 1315, 1329 (11th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 276, 78
L.Ed.2d 256 (1983), this discussion of attorney-client privilege encompasses the Sixth Amendment right
to effective assistance of counsel
It is not unusual or unreasonable to condition the use of telephones by penal inmates on monitoring of
the telephone calls by the authorities charged with maintaining the security of the penal facility. See,
e.g., Feeley v. Sampson, 570 F.2d 364, 373-374 (1st Cir.1978) (suggesting that striking an appropriate
balance between the interests of prison authorities and prisoners could be achieved by conditioning
prisoners' access to telephones on their recognition that prison guards have authority to monitor
telephone conversations). Moreover, possession of such communications by one element of the
government does not necessarily implicate another element
190
U.S. Supreme Court
CHAPLINSKY v. STATE OF NEW HAMPSHIRE, 315 U.S. 568 (1942)
315 U.S. 568
CHAPLINSKY
v.
STATE OF NEW HAMPSHIRE.
No. 255.
Argued Feb. 5, 1942.
Decided March 9, 1942.
Mr. Hayden C. Covington, of Brooklyn, N.Y., for appellant.
Mr. Frank R. Kenison, of Conway, N.H., for appellee. [315 U.S. 568, 569]
Mr. Justice MURPHY delivered the opinion of the Court.
Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the municipal court of
Rochester, New Hampshire, for violation of Chapter 378, Section 2, of the Public Laws of New
Hampshire: 'No person shall address any offensive, derisive or annoying word to any other person who
is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make
any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to
prevent him from pursuing his lawful business or occupation.'
The complaint charged that appellant 'with force and arms, in a certain public place in said city of
Rochester, to wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the
entrance of the City Hall, did unlawfully repeat, the words following, addressed to the complainant, that
is to say, 'You are a God damned racketeer' and 'a damned Fascist and the whole government of
Rochester are Fascists or agents of Fascists' the same being offensive, derisive and annoying words and
names'.
Upon appeal there was a trial de novo of appellant before a jury in the Superior Court. He was found
guilty and the judgment of conviction was affirmed by the Supreme Court of the State. 91 N.H. 310, 18
A.2d 754.
By motions and exceptions, appellant raised the questions that the statute was invalid under the
Fourteenth Amendment of the Constitution of the United States in that it placed an unreasonable
restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was
vague and indefinite. These contentions were overruled and the case comes here on appeal.
There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on the
streets [315 U.S. 568, 570] of Rochester on a busy Saturday afternoon. Members of the local citizenry
complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a 'racket'.
Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd
191
was getting restless. Some time later a disturbance occurred and the traffic officer on duty at the busy
intersection started with Chaplinsky for the police station, but did not inform him that he was under
arrest or that he was going to be arrested. On the way they encountered Marshal Bowering who had
been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his
earlier warning to Chaplinsky who then addressed to Bowering the words set forth in the complaint.
Chaplinsky's version of the affair was slightly different. He testified that when he met Bowering, he
asked him to arrest the ones responsible for the disturbance. In reply Bowering cursed him and told him
to come along. Appellant admitted that he said the words charged in the complaint with the exception
of the name of the Deity.
Over appellant's objection the trial court excluded as immaterial testimony relating to appellant's
mission 'to preach the true facts of the Bible', his treatment at the hands of the crowd, and the alleged
neglect of duty on the part of the police. This action was approved by the court below which held that
neither provocation nor the truth of the utterance would constitute a defense to the charge.
It is now clear that 'Freedom of speech and freedom of the press, which are protected by the First
Amendment from infringement by Congress, are among the fundamental personal rights and liberties
which are protected by the Fourteenth Amendment from invasion by state [315 U.S. 568, 571] action'.
Lovell v. City of Griffin, 303 U.S. 444, 450 , 58 S.Ct. 666, 668.1 Freedom of worship is similarly sheltered.
Cantwell v. Connecticut, 310 U.S. 296, 303 , 60 S.Ct. 900, 903, 128 A.L. R. 1352
Appellant assails the statute as a violation of all three freedoms, speech, press and worship, but only an
attack on the basis of free speech is warranted. The spoken, not the written, word is involved. And we
cannot conceive that cursing a public officer is the exercise of religion in any sense of the term. But even
if the activities of the appellant which preceded the incident could be viewed as religious in character,
and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak him with
immunity from the legal consequences for concomitant acts committed in violation of a valid criminal
statute. We turn, therefore, to an examination of the statute itself.
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times and under all circumstances. 2 There
are certain well-defined and narrowly limited classes of speech, the prevention [315 U.S. 568, 572] and
punishment of which has never been thought to raise any Constitutional problem. 3 These include the
lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their
very utterance inflict injury or tend to incite an immediate breach of the peace. 4 It has been well
observed that such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality. 5 'Resort to epithets or personal abuse is not in any proper
sense communication of information or opinion safeguarded by the Constitution, and its punishment as
a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296,
309 , 310 S., 60 S.Ct. 900, 906, 128 A.L.R. 1352.
The state statute here challenged comes to us authoritatively construed by the highest court of New
Hampshire. It has two provisions-the first relates to words or names addressed to another in a public
place; the second refers to noises and exclamations. The court (91 N.H. 310, 18 A. 2d 757) said: 'The two
provisions are distinct. One may stand separately from the other. Assuming, without holding, that the
second were unconstitutional, the first could stand if constitutional.' We accept that construction of
192
severability and limit our consideration to the first provision of the statute. 6 [315 U.S. 568, 573] On
the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve
the public peace, no words being 'forbidden except such as have a direct tendency to cause acts of
violence by the person to whom, individually, the remark is addressed'.7 It was further said: 'The word
'offensive' is not to be defined in terms of what a particular addressee thinks. ... The test is what men of
common intelligence would understand would be words likely to cause an average addressee to fight. ...
The English language has a number of words and expressions which by general consent and 'fighting
words' when said without a disarming smile. ... Such words, as ordinary men know, are likely to cause a
fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as
coming within the purview of the statute as heretofore interpreted only when they have this
characteristic of plainly tending to excite the addressee to a breach of the peace. ... The statute, as
construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the
peace by the addressee, words whose speaking constitute a breach of the peace by the speakerincluding 'classical fighting words', words in current use less 'classical' but equally likely to cause
violence, and other disorderly words, including profanity, obscenity and threats.'
We are unable to say that the limited scope of the statute as thus construed contravenes the
constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish
specific conduct lying within the domain of state power, the use in a public place of words likely to cause
a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311 , 60 S.Ct. 900, 906, 128 A.L.R. 1352;
Thornhill v. Alabama, [315 U.S. 568, 574] 310 U.S. 88, 105 , 60 S.Ct. 736, 745. This conclusion
necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a
conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as
not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236
U.S. 273, 277 , 35 S.Ct. 383, 384.8
Nor can we say that the application of the statute to the facts disclosed by the record substantially or
unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that
the appellations 'damn racketeer' and 'damn Fascist' are epithets likely to provoke the average person
to retaliation, and thereby cause a breach of the peace.
The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or
falsity of the utterances is open to no Constitutional objection. Whether the facts sought to be proved
by such evidence constitute a defense to the charge or may be shown in mitigation are questions for the
state court to determine. Our function is fulfilled by a determination that the challenged statute, on its
face and as applied, does not contravene the Fourteenth Amendment.
Affirmed.
Footnotes
[ Footnote 1 ] See also Bridges v. California, 314 U.S. 252 , 62 S.Ct. 190, 86 L.Ed . --, decided December 8,
1941; Cantwell v. Connecticut, 310 U.S. 296, 303 , 60 S.Ct. 900, 903, 128 A.L.R. 1352; Thornhill v.
Alabama, 310 U.S. 88, 95 , 60 S.Ct. 736, 740; Schneider v. State of New Jersey, 308 U.S. 147, 160 , 60
S.Ct. 146, 150; De Jonge v. Oregon, 299 U.S. 353, 364 , 57 S.Ct. 255, 259; Grosjean v. American Press Co.,
297 U.S. 233, 243 , 56 S.Ct. 444, 446; Near v. Minnesota, 283 U.S. 697, 707 , 51 S.Ct. 625, 627; Stromberg
v. California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A.L.R. 1484; Whitney v. California, 274 U.S. 357,
362 , 371 S., 373, 47 S.Ct. 641, 643, 646, 647; Gitlow v. New York, 268 U.S. 652, 666 , 45 S.Ct. 625, 629.
193
Appellant here pitches his argument on the due process clause of the Fourteenth Amendment.
[ Footnote 2 ] Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247; Whitney v. California, 274 U.S. 357,
373 , 47 S.Ct. 641, 647 ( Brandeis, J., concurring); Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532, 73
A.L.R. 1484; Near v. Minnesota, 283 U.S. 697 , 51 S. Ct. 625; De Jonge v. Oregon, 299 U.S. 353 , 57 S.Ct.
255; Herndon v. Lowry, 301 U.S. 242 , 57 S.Ct. 732; Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct. 900,
128 A. L.R. 1352.
[ Footnote 3 ] The protection of the First Amendment, mirrored in the Fourteenth, is not limited to the
Blackstonian idea that freedom of the press means only freedom from restraint prior to publication.
Near v. Minnesota, 283 U.S. 697, 714 , 715 S., 51 S.Ct. 625, 630.
[ Footnote 4 ] Chafee, Free Speech in the United States (1941), 149.
[ Footnote 5 ] Chafee, op. cit., 150.
[ Footnote 6 ] Since the complaint charged appellant only with violating the first provision of the statute,
the problem of Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532, 73 A.L.R. 1484, is not present.
[ Footnote 7 ] State v. Brown, 68 N.H. 200, 38 A. 731; State v. McConnell, 70 N.H. 294, 47 A. 267.
[ Footnote 8 ] We do not have here the problem of Lanzetta v. New Jersey, 306 U.S. 451 , 59 S.Ct. 618.
Even if the interpretative gloss placed on the statute by the court below be disregarded, the statute had
been previously construed as intended to preserve the public peace by punishing conduct, the direct
tendency of which was to provoke the person against whom it was directed to acts of violence. State v.
Brown, 1894, 68 N.H. 200, 38 A. 731.
Appellant need not therefore have been a prophet to understand what the statute condemned. Cf.
Herndon v. Lowry, 301 U.S. 242 , 57 S.Ct. 732. See Nash v. United States, 229 U.S. 373, 377 , 33 S.Ct. 780,
781.
194
U.S. Supreme Court
TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969)
393 U.S. 503
TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
No. 21.
Argued November 12, 1968.
Decided February 24, 1969.
Petitioners, three public school pupils in Des Moines, Iowa, were suspended from school for wearing
black armbands to protest the Government's policy in Vietnam. They sought nominal damages and an
injunction against a regulation that the respondents had promulgated banning the wearing of
armbands. The District Court dismissed the complaint on the ground that the regulation was within the
Board's power, despite the absence of any finding of substantial interference with the conduct of school
activities. The Court of Appeals, sitting en banc, affirmed by an equally divided court. Held:
1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive and
did not impinge upon the rights of others. In these circumstances, their conduct was within the
protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the
Fourteenth. Pp. 505-506.
2. First Amendment rights are available to teachers and students, subject to application in light
of the special characteristics of the school environment. Pp. 506-507.
3. A prohibition against expression of opinion, without any evidence that the rule is necessary to
avoid substantial interference with school discipline or the rights of others, is not permissible
under the First and Fourteenth Amendments. Pp. 507-514.
383 F.2d 988, reversed and remanded.
Dan L. Johnston argued the cause for petitioners. With him on the brief were Melvin L. Wulf and David
N. Ellenhorn.
Allan A. Herrick argued the cause for respondents. With him on the brief were Herschel G. Langdon and
David W. Belin.
Charles Morgan, Jr., filed a brief for the United States National Student Association, as amicus curiae,
urging reversal. [393 U.S. 503, 504]
MR. JUSTICE FORTAS delivered the opinion of the Court.
Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high
schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in
junior high school.
In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home.
The group determined to publicize their objections to the hostilities in Vietnam and their support for a
195
truce by wearing black armbands during the holiday season and by fasting on December 16 and New
Year's Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to
participate in the program.
The principals of the Des Moines schools became aware of the plan to wear armbands. On December
14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked
to remove it, and if he refused he would be suspended until he returned without the armband.
Petitioners were aware of the regulation that the school authorities adopted.
On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore
his armband the next day. They were all sent home and suspended from school until they would come
back without their armbands. They did not return to school until after the planned period for wearing
armbands had expired - that is, until after New Year's Day.
This complaint was filed in the United States District Court by petitioners, through their fathers, under
1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school
officials and the respondent members of the board of directors of the school district from disciplining
the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed
the complaint. It upheld [393 U.S. 503, 505] the constitutionality of the school authorities' action on
the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F. Supp. 971
(1966). The court referred to but expressly declined to follow the Fifth Circuit's holding in a similar case
that the wearing of symbols like the armbands cannot be prohibited unless it "materially and
substantially interfere[s] with the requirements of appropriate discipline in the operation of the school."
Burnside v. Byars, 363 F.2d 744, 749 (1966). 1
On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was
equally divided, and the District Court's decision was accordingly affirmed, without opinion. 383 F.2d
988 (1967). We granted certiorari. 390 U.S. 942 (1968).
I.
The District Court recognized that the wearing of an armband for the purpose of expressing certain
views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West
Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931). Cf. Thornhill v.
Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383
U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was
entirely divorced from actually or potentially disruptive conduct by those participating in it. It was
closely akin to "pure speech" [393 U.S. 503, 506] which, we have repeatedly held, is entitled to
comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965);
Adderley v. Florida, 385 U.S. 39 (1966).
First Amendment rights, applied in light of the special characteristics of the school environment, are
available to teachers and students. It can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the
unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and
Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due
Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign
196
language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the
liberty of teacher, student, and parent. 2 See also Pierce v. Society of Sisters, [393 U.S. 503, 507] 268
U.S. 510 (1925); West Virginia v. Barnette, 319 U.S. 624 (1943); McCollum v. Board of Education, 333
U.S. 203 (1948); Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion); Sweezy v. New
Hampshire, 354 U.S. 234 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S. 421
(1962); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Epperson v. Arkansas, ante, p. 97
(1968).
In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in
public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court
said:
"The Fourteenth Amendment, as now applied to the States, protects the citizen against the
State itself and all of its creatures - Boards of Education not excepted. These have, of course,
important, delicate, and highly discretionary functions, but none that they may not perform
within the limits of the Bill of Rights. That they are educating the young for citizenship is reason
for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle
the free mind at its source and teach youth to discount important principles of our government
as mere platitudes." 319 U.S., at 637 .
On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive
authority of the States and of school officials, consistent with fundamental constitutional safeguards, to
prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, at 104; Meyer v.
Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment
rights collide with the rules of the school authorities.
II.
The problem posed by the present case does not relate to regulation of the length of skirts or the type
of clothing, [393 U.S. 503, 508] to hair style, or deportment. Cf. Ferrell v. Dallas Independent School
District, 392 F.2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not
concern aggressive, disruptive action or even group demonstrations. Our problem involves direct,
primary First Amendment rights akin to "pure speech."
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion,
unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence
whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the
rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech
or action that intrudes upon the work of the schools or the rights of other students.
Only a few of the 18,000 students in the school system wore the black armbands. Only five students
were suspended for wearing them. There is no indication that the work of the schools or any class was
disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing
armbands, but there were no threats or acts of violence on school premises.
The District Court concluded that the action of the school authorities was reasonable because it was
based upon their fear of a disturbance from the wearing of the armbands. But, in our system,
undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of
197
expression. Any departure from absolute regimentation may cause trouble. Any variation from the
majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that
deviates from the views of another person may start an argument or cause a disturbance. But our
Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says
that it is this sort of hazardous freedom - this kind of openness - that is [393 U.S. 503, 509] the basis of
our national strength and of the independence and vigor of Americans who grow up and live in this
relatively permissive, often disputatious, society.
In order for the State in the person of school officials to justify prohibition of a particular expression of
opinion, it must be able to show that its action was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly
where there is no finding and no showing that engaging in the forbidden conduct would "materially and
substantially interfere with the requirements of appropriate discipline in the operation of the school,"
the prohibition cannot be sustained. Burnside v. Byars, supra, at 749.
In the present case, the District Court made no such finding, and our independent examination of the
record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the
armbands would substantially interfere with the work of the school or impinge upon the rights of other
students. Even an official memorandum prepared after the suspension that listed the reasons for the
ban on wearing the armbands made no reference to the anticipation of such disruption. 3 [393 U.S.
503, 510]
On the contrary, the action of the school authorities appears to have been based upon an urgent wish to
avoid the controversy which might result from the expression, even by the silent symbol of armbands, of
opposition to this Nation's part in the conflagration in Vietnam. 4 It is revealing, in this respect, that the
meeting at which the school principals decided to issue the contested regulation was called in response
to a student's statement to the journalism teacher in one of the schools that he wanted to write an
article on Vietnam and have it published in the school paper. (The student was dissuaded. 5 )
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of
political or controversial significance. The record shows that students in some of the schools wore
buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a
symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a
particular symbol - black armbands worn to exhibit opposition to this Nation's involvement [393 U.S.
503, 511] in Vietnam - was singled out for prohibition. Clearly, the prohibition of expression of one
particular opinion, at least without evidence that it is necessary to avoid material and substantial
interference with schoolwork or discipline, is not constitutionally permissible.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not
possess absolute authority over their students. Students in school as well as out of school are "persons"
under our Constitution. They are possessed of fundamental rights which the State must respect, just as
they themselves must respect their obligations to the State. In our system, students may not be
regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not
be confined to the expression of those sentiments that are officially approved. In the absence of a
specific showing of constitutionally valid reasons to regulate their speech, students are entitled to
freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials
cannot suppress "expressions of feelings with which they do not wish to contend." Burnside v. Byars,
supra, at 749.
198
In Meyer v. Nebraska, supra, at 402, Mr. Justice McReynolds expressed this Nation's repudiation of the
principle that a State might so conduct its schools as to "foster a homogeneous people." He said:
"In order to submerge the individual and develop ideal citizens, Sparta assembled the males at
seven into barracks and intrusted their subsequent education and training to official guardians.
Although such measures have been deliberately approved by men of great genius, their ideas
touching the relation between individual and State were wholly different from those upon
which our institutions rest; and it hardly will be affirmed that any legislature could impose such
restrictions upon the people of a [393 U.S. 503, 512] State without doing violence to both letter
and spirit of the Constitution."
This principle has been repeated by this Court on numerous occasions during the intervening years. In
Keyishian v. Board of Regents, 385 U.S. 589, 603 , MR. JUSTICE BRENNAN, speaking for the Court, said:
"`The vigilant protection of constitutional freedoms is nowhere more vital than in the
community of American schools.' Shelton v. Tucker, [ 364 U.S. 479 ,] at 487. The classroom is
peculiarly the `marketplace of ideas.' The Nation's future depends upon leaders trained through
wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of
tongues, [rather] than through any kind of authoritative selection.'"
The principle of these cases is not confined to the supervised and ordained discussion which takes place
in the classroom. The principal use to which the schools are dedicated is to accommodate students
during prescribed hours for the purpose of certain types of activities. Among those activities is personal
intercommunication among the students. 6 This is not only an inevitable part of the process of attending
school; it is also an important part of the educational process. A student's rights, therefore, do not
embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on [393 U.S.
503, 513] the campus during the authorized hours, he may express his opinions, even on controversial
subjects like the conflict in Vietnam, if he does so without "materially and substantially interfer[ing] with
the requirements of appropriate discipline in the operation of the school" and without colliding with the
rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which
for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or
involves substantial disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education,
363 F.2d 749 (C. A. 5th Cir. 1966).
Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists
in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised
only in an area that a benevolent government has provided as a safe haven for crackpots. The
Constitution says that Congress (and the States) may not abridge the right to free speech. This provision
means what it says. We properly read it to permit reasonable regulation of speech-connected activities
in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment
rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion
in a school classroom.
If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the
expression by any student of opposition to it anywhere on school property except as part of a
prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional
rights of students, at least if it could not be justified by a showing that the students' activities would
materially and substantially disrupt the work and discipline of the school. Cf. Hammond [393 U.S. 503,
514] v. South Carolina State College, 272 F. Supp. 947 (D.C. S. C. 1967) (orderly protest meeting on
state college campus); Dickey v. Alabama State Board of Education, 273 F. Supp. 613 (D.C. M. D. Ala.
199
1967) (expulsion of student editor of college newspaper). In the circumstances of the present case, the
prohibition of the silent, passive "witness of the armbands," as one of the children called it, is no less
offensive to the Constitution's guarantees.
As we have discussed, the record does not demonstrate any facts which might reasonably have led
school authorities to forecast substantial disruption of or material interference with school activities,
and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went
about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band
of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam
hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence
others to adopt them. They neither interrupted school activities nor sought to intrude in the school
affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with
work and no disorder. In the circumstances, our Constitution does not permit officials of the State to
deny their form of expression.
We express no opinion as to the form of relief which should be granted, this being a matter for the
lower courts to determine. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Footnotes
[ Footnote 1 ] In Burnside, the Fifth Circuit ordered that high school authorities be enjoined from
enforcing a regulation forbidding students to wear "freedom buttons." It is instructive that in Blackwell
v. Issaquena County Board of Education, 363 F.2d 749 (1966), the same panel on the same day reached
the opposite result on different facts. It declined to enjoin enforcement of such a regulation in another
high school where the students wearing freedom buttons harassed students who did not wear them and
created much disturbance.
[ Footnote 2 ] Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934), is sometimes cited for the broad
proposition that the State may attach conditions to attendance at a state university that require
individuals to violate their religious convictions. The case involved dismissal of members of a religious
denomination from a land grant college for refusal to participate in military training. Narrowly viewed,
the case turns upon the Court's conclusion that merely requiring a student to participate in school
training in military "science" could not conflict with his constitutionally protected freedom of
conscience. The decision cannot be taken as establishing that the State may impose and enforce any
conditions that it chooses upon attendance at public institutions of learning, however violative they may
be of fundamental constitutional guarantees. See, e. g., West Virginia v. Barnette, 319 U.S. 624 (1943);
Dixon v. Alabama State Board of Education, 294 F.2d 150 (C. A. 5th Cir. 1961); Knight v. State Board of
Education, 200 F. Supp. 174 (D.C. M. D. Tenn. 1961); Dickey v. Alabama State Board of Education, 273 F.
Supp. 613 (D.C. M. D. Ala. 1967). See also Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595
(1960); Note, Academic Freedom, 81 Harv. L. Rev. 1045 (1968).
[ Footnote 3 ] The only suggestions of fear of disorder in the report are these:
200
"A former student of one of our high schools was killed in Viet Nam. Some of his friends are still
in school and it was felt that if any kind of a demonstration existed, it might evolve into
something which would be difficult to control."
"Students at one of the high schools were heard to say they would wear arm bands of other
colors if the black bands prevailed."
Moreover, the testimony of school authorities at trial indicates that it was not fear of disruption that
motivated the regulation prohibiting the armbands; the regulation was directed against "the principle of
the demonstration" itself. School authorities simply felt that "the schools are no place for
demonstrations," and if the students "didn't like the way our elected officials were handling things, it
should be handled with the ballot box and not in the halls of our public schools."
[ Footnote 4 ] The District Court found that the school authorities, in prohibiting black armbands, were
influenced by the fact that "[t]he Viet Nam war and the involvement of the United States therein has
been the subject of a major controversy for some time. When the arm band regulation involved herein
was promulgated, debate over the Viet Nam war had become vehement in many localities. A protest
march against the war had been recently held in Washington, D.C. A wave of draft card burning
incidents protesting the war had swept the country. At that time two highly publicized draft card
burning cases were pending in this Court. Both individuals supporting the war and those opposing it
were quite vocal in expressing their views." 258 F. Supp., at 972-973.
[ Footnote 5 ] After the principals' meeting, the director of secondary education and the principal of the
high school informed the student that the principals were opposed to publication of his article. They
reported that "we felt that it was a very friendly conversation, although we did not feel that we had
convinced the student that our decision was a just one."
[ Footnote 6 ] In Hammond v. South Carolina State College, 272 F. Supp. 947 (D.C. S. C. 1967), District
Judge Hemphill had before him a case involving a meeting on campus of 300 students to express their
views on school practices. He pointed out that a school is not like a hospital or a jail enclosure. Cf. Cox v.
Louisiana, 379 U.S. 536 (1965); Adderley v. Florida, 385 U.S. 39 (1966). It is a public place, and its
dedication to specific uses does not imply that the constitutional rights of persons entitled to be there
are to be gauged as if the premises were purely private property. Cf. Edwards v. South Carolina, 372 U.S.
229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966).
MR. JUSTICE STEWART, concurring.
Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I
[393 U.S. 503, 515] cannot share the Court's uncritical assumption that, school discipline aside, the First
Amendment rights of children are co-extensive with those of adults. Indeed, I had thought the Court
decided otherwise just last Term in Ginsberg v. New York, 390 U.S. 629 . I continue to hold the view I
expressed in that case: "[A] State may permissibly determine that, at least in some precisely delineated
areas, a child - like someone in a captive audience - is not possessed of that full capacity for individual
choice which is the presupposition of First Amendment guarantees." Id., at 649-650 (concurring in
result). Cf. Prince v. Massachusetts, 321 U.S. 158 .
MR. JUSTICE WHITE, concurring.
201
While I join the Court's opinion, I deem it appropriate to note, first, that the Court continues to
recognize a distinction between communicating by words and communicating by acts or conduct which
sufficiently impinges on some valid state interest; and, second, that I do not subscribe to everything the
Court of Appeals said about free speech in its opinion in Burnside v. Byars, 363 F.2d 744, 748 (C. A. 5th
Cir. 1966), a case relied upon by the Court in the matter now before us.
MR. JUSTICE BLACK, dissenting.
The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to
control pupils by the elected "officials of state supported public schools . . ." in the United States is in
ultimate effect transferred to the Supreme Court. 1 The Court brought [393 U.S. 503, 516] this
particular case here on a petition for certiorari urging that the First and Fourteenth Amendments
protect the right of school pupils to express their political views all the way "from kindergarten through
high school." Here the constitutional right to "political expression" asserted was a right to wear black
armbands during school hours and at classes in order to demonstrate to the other students that the
petitioners were mourning because of the death of United States soldiers in Vietnam and to protest that
war which they were against. Ordered to refrain from wearing the armbands in school by the elected
school officials and the teachers vested with state authority to do so, apparently only seven out of the
school system's 18,000 pupils deliberately refused to obey the order. One defying pupil was Paul Tinker,
8 years old, who was in the second grade; another, Hope Tinker, was 11 years old and in the fifth grade;
a third member of the Tinker family was 13, in the eighth grade; and a fourth member of the same
family was John Tinker, 15 years old, an 11th grade high school pupil. Their father, a Methodist minister
without a church, is paid a salary by the American Friends Service Committee. Another student who
defied the school order and insisted on wearing an armband in school was Christopher Eckhardt, an 11th
grade pupil and a petitioner in this case. His mother is an official in the Women's International League
for Peace and Freedom.
As I read the Court's opinion it relies upon the following grounds for holding unconstitutional the
judgment of the Des Moines school officials and the two courts below. First, the Court concludes that
the wearing of armbands is "symbolic speech" which is "akin to `pure speech'" and therefore protected
by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an
appropriate place to exercise "symbolic speech" as long as normal school functions [393 U.S. 503, 517]
are not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected
officials charged with running the schools, the decision as to which school disciplinary regulations are
"reasonable."
Assuming that the Court is correct in holding that the conduct of wearing armbands for the purpose of
conveying political ideas is protected by the First Amendment, cf., e. g., Giboney v. Empire Storage & Ice
Co., 336 U.S. 490 (1949), the crucial remaining questions are whether students and teachers may use
the schools at their whim as a platform for the exercise of free speech - "symbolic" or "pure" - and
whether the courts will allocate to themselves the function of deciding how the pupils' school day will
be spent. While I have always believed that under the First and Fourteenth Amendments neither the
State nor the Federal Government has any authority to regulate or censor the content of speech, I have
never believed that any person has a right to give speeches or engage in demonstrations where he
pleases and when he pleases. This Court has already rejected such a notion. In Cox v. Louisiana, 379 U.S.
536, 554 (1965), for example, the Court clearly stated that the rights of free speech and assembly "do
not mean that everyone with opinions or beliefs to express may address a group at any public place and
at any time."
202
While the record does not show that any of these armband students shouted, used profane language, or
were violent in any manner, detailed testimony by some of them shows their armbands caused
comments, warnings by other students, the poking of fun at them, and a warning by an older football
player that other, nonprotesting students had better let them alone. There is also evidence that a
teacher of mathematics had his lesson period practically "wrecked" chiefly by disputes with Mary Beth
Tinker, who wore her armband for her "demonstration." [393 U.S. 503, 518] Even a casual reading of
the record shows that this armband did divert students' minds from their regular lessons, and that talk,
comments, etc., made John Tinker "self-conscious" in attending school with his armband. While the
absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court's statement that
the few armband students did not actually "disrupt" the classwork, I think the record overwhelmingly
shows that the armbands did exactly what the elected school officials and principals foresaw they
would, that is, took the students' minds off their classwork and diverted them to thoughts about the
highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of
state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of
school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary
era of permissiveness in this country fostered by the judiciary. The next logical step, it appears to me,
would be to hold unconstitutional laws that bar pupils under 21 or 18 from voting, or from being elected
members of the boards of education. 2
The United States District Court refused to hold that the state school order violated the First and
Fourteenth Amendments. 258 F. Supp. 971. Holding that the protest was akin to speech, which is
protected by the First [393 U.S. 503, 519] and Fourteenth Amendments, that court held that the school
order was "reasonable" and hence constitutional. There was at one time a line of cases holding
"reasonableness" as the court saw it to be the test of a "due process" violation. Two cases upon which
the Court today heavily relies for striking down this school order used this test of reasonableness, Meyer
v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923). The opinions in both cases
were written by Mr. Justice McReynolds; Mr. Justice Holmes, who opposed this reasonableness test,
dissented from the holdings as did Mr. Justice Sutherland. This constitutional test of reasonableness
prevailed in this Court for a season. It was this test that brought on President Franklin Roosevelt's wellknown Court fight. His proposed legislation did not pass, but the fight left the "reasonableness"
constitutional test dead on the battlefield, so much so that this Court in Ferguson v. Skrupa, 372 U.S.
726, 729 , 730, after a thorough review of the old cases, was able to conclude in 1963:
"There was a time when the Due Process Clause was used by this Court to strike down laws
which were thought unreasonable, that is, unwise or incompatible with some particular
economic or social philosophy.
.....
"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases - that due
process authorizes courts to hold laws unconstitutional when they believe the legislature has
acted unwisely - has long since been discarded."
The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges
have the power to hold laws unconstitutional upon the belief of judges that they "shock the conscience"
or that they are [393 U.S. 503, 520] "unreasonable," "arbitrary," "irrational," "contrary to fundamental
`decency,'" or some other such flexible term without precise boundaries. I have many times expressed
my opposition to that concept on the ground that it gives judges power to strike down any law they do
not like. If the majority of the Court today, by agreeing to the opinion of my Brother FORTAS, is
resurrecting that old reasonableness-due process test, I think the constitutional change should be
plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar. It will be a sad day
203
for the country, I believe, when the present-day Court returns to the McReynolds due process concept.
Other cases cited by the Court do not, as implied, follow the McReynolds reasonableness doctrine. West
Virginia v. Barnette, 319 U.S. 624 , clearly rejecting the "reasonableness" test, held that the Fourteenth
Amendment made the First applicable to the States, and that the two forbade a State to compel little
schoolchildren to salute the United States flag when they had religious scruples against doing so. 3
Neither Thornhill v. Alabama, 310 U.S. 88 ; Stromberg v. California, 283 U.S. 359 ; Edwards [393 U.S. 503,
521] v. South Carolina, 372 U.S. 229 ; nor Brown v. Louisiana, 383 U.S. 131 , related to schoolchildren at
all, and none of these cases embraced Mr. Justice McReynolds' reasonableness test; and Thornhill,
Edwards, and Brown relied on the vagueness of state statutes under scrutiny to hold them
unconstitutional. Cox v. Louisiana, 379 U.S. 536, 555 , and Adderley v. Florida, 385 U.S. 39 , cited by the
Court as a "compare," indicating, I suppose, that these two cases are no longer the law, were not rested
to the slightest extent on the Meyer and Bartels "reasonableness-due process-McReynolds"
constitutional test.
I deny, therefore, that it has been the "unmistakable holding of this Court for almost 50 years" that
"students" and "teachers" take with them into the "schoolhouse gate" constitutional rights to "freedom
of speech or expression." Even Meyer did not hold that. It makes no reference to "symbolic speech" at
all; what it did was to strike down as "unreasonable" and therefore unconstitutional a Nebraska law
barring the teaching of the German language before the children reached the eighth grade. One can well
agree with Mr. Justice Holmes and Mr. Justice Sutherland, as I do, that such a law was no more
unreasonable than it would be to bar the teaching of Latin and Greek to pupils who have not reached
the eighth grade. In fact, I think the majority's reason for invalidating the Nebraska law was that it did
not like it or in legal jargon that it "shocked the Court's conscience," "offended its sense of justice," or
was "contrary to fundamental concepts of the English-speaking world," as the Court has sometimes said.
See, e. g., Rochin v. California, 342 U.S. 165 , and Irvine v. California, 347 U.S. 128 . The truth is that a
teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a
complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with
him a complete freedom of [393 U.S. 503, 522] speech and religion into a Catholic church or Jewish
synagogue. Nor does a person carry with him into the United States Senate or House, or into the
Supreme Court, or any other court, a complete constitutional right to go into those places contrary to
their rules and speak his mind on any subject he pleases. It is a myth to say that any person has a
constitutional right to say what he pleases, where he pleases, and when he pleases. Our Court has
decided precisely the opposite. See, e. g., Cox v. Louisiana, 379 U.S. 536, 555 ; Adderley v. Florida, 385
U.S. 39 .
In my view, teachers in state-controlled public schools are hired to teach there. Although Mr. Justice
McReynolds may have intimated to the contrary in Meyer v. Nebraska, supra, certainly a teacher is not
paid to go into school and teach subjects the State does not hire him to teach as a part of its selected
curriculum. Nor are public school students sent to the schools at public expense to broadcast political or
any other views to educate and inform the public. The original idea of schools, which I do not believe is
yet abandoned as worthless or out of date, was that children had not yet reached the point of
experience and wisdom which enabled them to teach all of their elders. It may be that the Nation has
outworn the old-fashioned slogan that "children are to be seen not heard," but one may, I hope, be
permitted to harbor the thought that taxpayers send children to school on the premise that at their age
they need to learn, not teach.
The true principles on this whole subject were in my judgment spoken by Mr. Justice McKenna for the
Court in Waugh v. Mississippi University in 237 U.S. 589, 596 -597. The State had there passed a law
204
barring students from peaceably assembling in Greek letter fraternities and providing that students who
joined them could be expelled from school. This law would appear on the surface to run afoul of the
First Amendment's [393 U.S. 503, 523] freedom of assembly clause. The law was attacked as violative
of due process and of the privileges and immunities clause and as a deprivation of property and of
liberty, under the Fourteenth Amendment. It was argued that the fraternity made its members more
moral, taught discipline, and inspired its members to study harder and to obey better the rules of
discipline and order. This Court rejected all the "fervid" pleas of the fraternities' advocates and decided
unanimously against these Fourteenth Amendment arguments. The Court in its next to the last
paragraph made this statement which has complete relevance for us today:
"It is said that the fraternity to which complainant belongs is a moral and of itself a disciplinary
force. This need not be denied. But whether such membership makes against discipline was for
the State of Mississippi to determine. It is to be remembered that the University was established
by the State and is under the control of the State, and the enactment of the statute may have
been induced by the opinion that membership in the prohibited societies divided the attention
of the students and distracted from that singleness of purpose which the State desired to exist
in its public educational institutions. It is not for us to entertain conjectures in opposition to the
views of the State and annul its regulations upon disputable considerations of their wisdom or
necessity." (Emphasis supplied.)
It was on the foregoing argument that this Court sustained the power of Mississippi to curtail the First
Amendment's right of peaceable assembly. And the same reasons are equally applicable to curtailing in
the States' public schools the right to complete freedom of expression. Iowa's public schools, like
Mississippi's university, are operated to give students an opportunity to learn, not to talk politics by
actual speech, or by "symbolic" [393 U.S. 503, 524] speech. And, as I have pointed out before, the
record amply shows that public protest in the school classes against the Vietnam war "distracted from
that singleness of purpose which the State [here Iowa] desired to exist in its public educational
institutions." Here the Court should accord Iowa educational institutions the same right to determine for
themselves to what extent free expression should be allowed in its schools as it accorded Mississippi
with reference to freedom of assembly. But even if the record were silent as to protests against the
Vietnam war distracting students from their assigned class work, members of this Court, like all other
citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted
and divided this country as few other issues ever have. Of course students, like other people, cannot
concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence
to call attention to the wounded and dead of the war, some of the wounded and the dead being their
friends and neighbors. It was, of course, to distract the attention of other students that some students
insisted up to the very point of their own suspension from school that they were determined to sit in
school with their symbolic armbands.
Change has been said to be truly the law of life but sometimes the old and the tried and true are worth
holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making
us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace.
We cannot close our eyes to the fact that some of the country's greatest problems are crimes
committed by the youth, too many of school age. School discipline, like parental discipline, is an integral
and important part of training our children to be good citizens - to be better citizens. Here a very small
number of students have crisply and summarily [393 U.S. 503, 525] refused to obey a school order
designed to give pupils who want to learn the opportunity to do so. One does not need to be a prophet
or the son of a prophet to know that after the Court's holding today some students in Iowa schools and
indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is
205
the more unfortunate for the schools since groups of students all over the land are already running
loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too
familiar to all who read the newspapers and watch the television news programs, have already engaged
in rioting, property seizures, and destruction. They have picketed schools to force students not to cross
their picket lines and have too often violently attacked earnest but frightened students who wanted an
education that the pickets did not want them to get. Students engaged in such activities are apparently
confident that they know far more about how to operate public school systems than do their parents,
teachers, and elected school officials. It is no answer to say that the particular students here have not
yet reached such high points in their demands to attend classes in order to exercise their political
pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are
here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it
is their right to control the schools rather than the right of the States that collect the taxes to hire the
teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my
judgment, subjects all the public schools in the country to the whims and caprices of their loudestmouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils
are wise enough, even with this Court's expert help from Washington, to run the 23,390 public school
[393 U.S. 503, 526] systems 4 in our 50 States. I wish, therefore, wholly to disclaim any purpose on my
part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to
surrender control of the American public school system to public school students. I dissent.
[ Footnote 1 ] The petition for certiorari here presented this single question:
"Whether the First and Fourteenth Amendments permit officials of state supported public
schools to prohibit students from wearing symbols of political views within school premises
where the symbols are not disruptive of school discipline or decorum."
[ Footnote 2 ] The following Associated Press article appeared in the Washington Evening Star, January
11, 1969, p. A-2, col. 1:
"BELLINGHAM, Mass. (AP) - Todd R. Hennessy, 16, has filed nominating papers to run for town
park commissioner in the March election.
"`I can see nothing illegal in the youth's seeking the elective office,' said Lee Ambler, the town
counsel. `But I can't overlook the possibility that if he is elected any legal contract entered into
by the park commissioner would be void because he is a juvenile.'
"Todd is a junior in Mount St. Charles Academy, where he has a top scholastic record."
[ Footnote 3 ] In Cantwell v. Connecticut, 310 U.S. 296, 303 -304 (1940), this Court said:
"The First Amendment declares that Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such laws. The constitutional
inhibition of legislation on the subject of religion has a double aspect. On the one hand, it
forestalls compulsion by law of the acceptance of any creed or the practice of any form of
worship. Freedom of conscience and freedom to adhere to such religious organization or form
of worship as the individual may choose cannot be restricted by law. On the other hand, it
safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two
concepts, - freedom to believe and freedom to act. The first is absolute but, in the nature of
206
things, the second cannot be. Conduct remains subject to regulation for the protection of
society."
[ Footnote 4 ] Statistical Abstract of the United States (1968), Table No. 578, p. 406.
MR. JUSTICE HARLAN, dissenting.
I certainly agree that state public school authorities in the discharge of their responsibilities are not
wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of
expression and association. At the same time I am reluctant to believe that there is any disagreement
between the majority and myself on the proposition that school officials should be accorded the widest
authority in maintaining discipline and good order in their institutions. To translate that proposition into
a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of
showing that a particular school measure was motivated by other than legitimate school concerns - for
example, a desire to prohibit the expression of an unpopular point of view, while permitting expression
of the dominant opinion.
Finding nothing in this record which impugns the good faith of respondents in promulgating the
armband regulation, I would affirm the judgment below. [393 U.S. 503, 527]
207
U.S. Supreme Court
COHEN v. CALIFORNIA, 403 U.S. 15 (1971)
403 U.S. 15
COHEN v. CALIFORNIA
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT
No. 299.
Argued February 22, 1971
Decided June 7, 1971
Appellant was convicted of violating that part of Cal. Penal Code 415 which prohibits "maliciously and
willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for
wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The
Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others
to acts of violence or to in turn disturb the peace," and affirmed the conviction. Held: Absent a more
particularized and compelling reason for its actions, the State may not, consistently with the First and
Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal
offense. Pp. 22-26.
1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.
HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and
MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C. J., and BLACK, J.,
joined, and in which WHITE, J., joined in part, post, p. 27.
Melville B. Nimmer argued the cause for appellant. With him on the brief was Laurence R. Sperber.
Michael T. Sauer argued the cause for appellee. With him on the brief was Roger Arnebergh.
Anthony G. Amsterdam filed a brief for the American Civil Liberties Union of Northern California as
amicus curiae urging reversal.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case may seem at first blush too inconsequential to find its way into our books, but the issue it
presents is of no small constitutional significance. [403 U.S. 15, 16]
Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of
California Penal Code 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of
any neighborhood or person . . . by . . . offensive conduct . . . ." 1 He was given 30 days' imprisonment.
The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California,
Second Appellate District, as follows:
"On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the
corridor outside of division 20 of the municipal court wearing a jacket bearing the words `Fuck
208
the Draft' which were plainly visible. There were women and children present in the corridor.
The defendant was arrested. The defendant testified that he wore the jacket knowing that the
words were on the jacket as a means of informing the public of the depth of his feelings against
the Vietnam War and the draft.
"The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his
conduct [403 U.S. 15, 17] in fact commit or threaten to commit any act of violence. The
defendant did not make any loud or unusual noise, nor was there any evidence that he uttered
any sound prior to his arrest." 1 Cal. App. 3d 94, 97-98, 81 Cal. Rptr. 503, 505 (1969).
In affirming the conviction the Court of Appeal held that "offensive conduct" means "behavior which has
a tendency to provoke others to acts of violence or to in turn disturb the peace," and that the State had
proved this element because, on the facts of this case, "[i]t was certainly reasonably foreseeable that
such conduct might cause others to rise up to commit a violent act against the person of the defendant
or attempt to forceably remove his jacket." 1 Cal. App. 3d, at 99-100, 81 Cal. Rptr., at 506. The California
Supreme Court declined review by a divided vote. 2 We brought the case here, postponing the
consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits.
399 U.S. 904 . We now reverse.
The question of our jurisdiction need not detain us long. Throughout the proceedings below, Cohen
consistently [403 U.S. 15, 18] claimed that, as construed to apply to the facts of this case, the statute
infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of
the Federal Constitution. That contention has been rejected by the highest California state court in
which review could be had. Accordingly, we are fully satisfied that Cohen has properly invoked our
jurisdiction by this appeal. 28 U.S.C. 1257 (2); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282
(1921).
I
In order to lay hands on the precise issue which this case involves, it is useful first to canvass various
matters which this record does not present.
The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey
his message to the public. The only "conduct" which the State sought to punish is the fact of
communication. Thus, we deal here with a conviction resting solely upon "speech," cf. Stromberg v.
California, 283 U.S. 359 (1931), not upon any separately identifiable conduct which allegedly was
intended by Cohen to be perceived by others as expressive of particular views but which, on its face,
does not necessarily convey any message and hence arguably could be regulated without effectively
repressing Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U.S. 367 (1968). Further,
the State certainly lacks power to punish Cohen for the underlying content of the message the
inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or
disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be
punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected.
Yates v. United States, 354 U.S. 298 (1957). [403 U.S. 15, 19]
Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech" protected from
arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid
regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the
substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth
Amendments have never been thought to give absolute protection to every individual to speak
209
whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses.
In this vein, too, however, we think it important to note that several issues typically associated with such
problems are not presented here.
In the first place, Cohen was tried under a statute applicable throughout the entire State. Any attempt
to support this conviction on the ground that the statute seeks to preserve an appropriately decorous
atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the
statute that would have put appellant on notice that certain kinds of otherwise permissible speech or
conduct would nevertheless, under California law, not be tolerated in certain places. See Edwards v.
South Carolina, 372 U.S. 229, 236 -237, and n. 11 (1963). Cf. Adderley v. Florida, 385 U.S. 39 (1966). No
fair reading of the phrase "offensive conduct" can be said sufficiently to inform the ordinary person that
distinctions between certain locations are thereby created. 3
In the second place, as it comes to us, this case cannot be said to fall within those relatively few
categories of [403 U.S. 15, 20] instances where prior decisions have established the power of
government to deal more comprehensively with certain forms of individual expression simply upon a
showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may
be necessary to give rise to the States' broader power to prohibit obscene expression, such expression
must be, in some significant way, erotic. Roth v. United States, 354 U.S. 476 (1957). It cannot plausibly
be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic
stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.
This Court has also held that the States are free to ban the simple use, without a demonstration of
additional justifying circumstances, of so-called "fighting words," those personally abusive epithets
which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely
to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). While the four-letter
word displayed by Cohen in relation to the draft is not uncommonly employed in a personally
provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v.
Connecticut, 310 U.S. 296, 309 (1940). No individual actually or likely to be present could reasonably
have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an
instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a
given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951); Terminiello v. Chicago, 337
U.S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was in fact violently
aroused or that appellant intended such a result. [403 U.S. 15, 21]
Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful mode
of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore
legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to
appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or
viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e. g.,
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971). While this Court has recognized that
government may properly act in many situations to prohibit intrusion into the privacy of the home of
unwelcome views and ideas which cannot be totally banned from the public dialogue, e. g., Rowan v.
Post Office Dept., 397 U.S. 728 (1970), we have at the same time consistently stressed that "we are
often `captives' outside the sanctuary of the home and subject to objectionable speech." Id., at 738. The
ability of government, consonant with the Constitution, to shut off discourse solely to protect others
from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being
210
invaded in an essentially intolerable manner. Any broader view of this authority would effectively
empower a majority to silence dissidents simply as a matter of personal predilections.
In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those
subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los
Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting
their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest
when walking through a courthouse corridor than, for example, strolling through Central Park, surely it
is nothing like the interest in [403 U.S. 15, 22] being free from unwanted expression in the confines of
one's own home. Cf. Keefe, supra. Given the subtlety and complexity of the factors involved, if Cohen's
"speech" was otherwise entitled to constitutional protection, we do not think the fact that some
unwilling "listeners" in a public building may have been briefly exposed to it can serve to justify this
breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid
appellant's conduct did in fact object to it, and where that portion of the statute upon which Cohen's
conviction rests evinces no concern, either on its face or as construed by the California courts, with the
special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all
"offensive conduct" that disturbs "any neighborhood or person." Cf. Edwards v. South Carolina, supra. 4
II
Against this background, the issue flushed by this case stands out in bold relief. It is whether California
can excise, as "offensive conduct," one particular scurrilous epithet from the public discourse, either
upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a
more general assertion that the States, acting as guardians of public morality, [403 U.S. 15, 23] may
properly remove this offensive word from the public vocabulary.
The rationale of the California court is plainly untenable. At most it reflects an "undifferentiated fear or
apprehension of disturbance [which] is not enough to overcome the right to freedom of expression."
Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508 (1969). We have been shown no
evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may
assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about
with such lawless and violent proclivities, but that is an insufficient base upon which to erect,
consistently with constitutional values, a governmental power to force persons who wish to ventilate
their dissident views into avoiding particular forms of expression. The argument amounts to little more
than the self-defeating proposition that to avoid physical censorship of one who has not sought to
provoke such a response by a hypothetical coterie of the violent and lawless, the States may more
appropriately effectuate that censorship themselves. Cf. Ashton v. Kentucky, 384 U.S. 195, 200 (1966);
Cox v. Louisiana, 379 U.S. 536, 550 -551 (1965).
Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the
States from punishing public utterance of this unseemly expletive in order to maintain what they regard
as a suitable level of discourse within the body politic. 5 We [403 U.S. 15, 24] think, however, that
examination and reflection will reveal the shortcomings of a contrary viewpoint.
At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a
justifiable interest in regulating speech will fall within one or more of the various established exceptions,
discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe
211
the form or content of individual expression. Equally important to our conclusion is the constitutional
backdrop against which our decision must be made. The constitutional right of free expression is
powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove
governmental restraints from the arena of public discussion, putting the decision as to what views shall
be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately
produce a more capable citizenry and more perfect polity and in the belief that no other approach
would comport with the premise of individual dignity and choice upon which our political system rests.
See Whitney v. California, 274 U.S. 357, 375 -377 (1927) (Brandeis, J., concurring).
To many, the immediate consequence of this freedom may often appear to be only verbal tumult,
discord, and [403 U.S. 15, 25] even offensive utterance. These are, however, within established limits,
in truth necessary side effects of the broader enduring values which the process of open debate permits
us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of
weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling
and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values
are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech
as fully as do Keats' poems or Donne's sermons," Winters v. New York, 333 U.S. 507, 528 (1948)
(Frankfurter, J., dissenting), and why "so long as the means are peaceful, the communication need not
meet standards of acceptability," Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).
Against this perception of the constitutional policies involved, we discern certain more particularized
considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the
State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely
the State has no right to cleanse public debate to the point where it is grammatically palatable to the
most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of
that result were we to affirm the judgment below. For, while the particular four-letter word being
litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that
one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot
make principled distinctions in this area that the Constitution leaves matters of taste and style so largely
to the individual.
Additionally, we cannot overlook the fact, because it [403 U.S. 15, 26] is well illustrated by the episode
involved here, that much linguistic expression serves a dual communicative function: it conveys not only
ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.
In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction
the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or
no regard for that emotive function which, practically speaking, may often be the more important
element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said,
"[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures - and
that means not only informed and responsible criticism but the freedom to speak foolishly and without
moderation." Baumgartner v. United States, 322 U.S. 665, 673 -674 (1944).
Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas in the process. Indeed, governments
might soon seize upon the censorship of particular words as a convenient guise for banning the
expression of unpopular views. We have been able, as noted above, to discern little social benefit that
might result from running the risk of opening the door to such grave results.
212
It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the
State may not, consistently with the First and Fourteenth Amendments, make the simple public display
here involved of this single four-letter expletive a criminal offense. Because that is the only arguably
sustainable rationale for the conviction here at issue, the judgment below must be
Reversed.
Footnotes
[ Footnote 1 ] The statute provides in full:
"Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or
person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening,
traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any
unincorporated town, or upon the public highways in such unincorporated town, run any horse
race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town,
or use any vulgar, profane, or indecent language within the presence or hearing of women or
children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by
any Court of competent jurisdiction shall be punished by fine not exceeding two hundred
dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and
imprisonment, or either, at the discretion of the Court."
[ Footnote 2 ] The suggestion has been made that, in light of the supervening opinion of the California
Supreme Court in In re Bushman, 1 Cal. 3d 767, 463 P.2d 727 (1970), it is "not at all certain that the
California Court of Appeal's construction of 415 is now the authoritative California construction." Post,
at 27 (BLACKMUN, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated:
"[One] may . . . be guilty of disturbing the peace through `offensive' conduct [within the
meaning of 415] if by his actions he wilfully and maliciously incites others to violence or engages
in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal. App. 3d 94, 101, [81
Cal. Rptr. 503].)" 1 Cal. 3d, at 773, 463 P.2d, at 730.
We perceive no difference of substance between the Bushman construction and that of the Court of
Appeal, particularly in light of the Bushman court's approving citation of Cohen.
[ Footnote 3 ] It is illuminating to note what transpired when Cohen entered a courtroom in the building.
He removed his jacket and stood with it folded over his arm. Meanwhile, a policeman sent the presiding
judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so and Cohen
was arrested by the officer only after be emerged from the courtroom. App. 18-19.
[ Footnote 4 ] In fact, other portions of the same statute do make some such distinctions. For example,
the statute also prohibits disturbing "the peace or quiet . . . by loud or unusual noise" and using "vulgar,
profane, or indecent language within the presence or hearing of women or children, in a loud and
boisterous manner." See n. 1, supra. This second-quoted provision in particular serves to put the actor
on much fairer notice as to what is prohibited. It also buttresses our view that the "offensive conduct"
portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed
or intended to make fine distinctions between differently situated recipients.
213
[ Footnote 5 ] The amicus urges, with some force, that this issue is not properly before us since the
statute, as construed, punishes only conduct that might cause others to react violently. However,
because the opinion below appears to erect a virtually irrebuttable presumption that use of this word
will produce such results, the statute as thus construed appears to impose, in effect, a flat ban on the
public utterance of this word. With the case in this posture, it does not seem inappropriate [403 U.S. 15,
24] to inquire whether any other rationale might properly support this result. While we think it clear,
for the reasons expressed above, that no statute which merely proscribes "offensive conduct" and has
been construed as broadly as this one was below can subsequently be justified in this Court as
discriminating between conduct that occurs in different places or that offends only certain persons, it is
not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because
it is not so patently clear that acceptance of the justification presently under consideration would render
the statute overbroad or unconstitutionally vague, and because the answer to appellee's argument
seems quite clear, we do not pass on the contention that this claim is not presented on this record. [403
U.S. 15, 27]
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK join.
I dissent, and I do so for two reasons:
1. Cohen's absurd and immature antic, in my view, was mainly conduct and little speech. See Street v.
New York, 394 U.S. 576 (1969); Cox v. Louisiana, 379 U.S. 536, 555 (1965); Giboney v. Empire Storage
Co., 336 U.S. 490, 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal. App.
3d 94, 100, 81 Cal. Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to
me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), where Mr. Justice
Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a
consequence, this Court's agonizing over First Amendment values seems misplaced and unnecessary.
2. I am not at all certain that the California Court of Appeal's construction of 415 is now the authoritative
California construction. The Court of Appeal filed its opinion on October 22, 1969. The Supreme Court of
California declined review by a four-to-three vote on December 17. See 1 Cal. App. 3d, at 104. A month
later on January 27, 1970, the State Supreme Court in another case construed 415, evidently for the first
time. In re Bushman, 1 Cal. 3d 767, 463 P.2d 727. Chief Justice Traynor, who was among the dissenters
to his court's refusal to take Cohen's case, wrote the majority opinion. He held that 415 "is not
unconstitutionally vague and overbroad" and further said:
"[T]hat part of Penal Code section 415 in question here makes punishable only wilful and
malicious conduct that is violent and endangers public safety and order or that creates a clear
and present danger that others will engage in violence of that nature. [403 U.S. 15, 28]
". . . [It] does not make criminal any nonviolent act unless the act incites or threatens to incite
others to violence . . . ." 1 Cal. 3d, at 773-774, 463 P.2d, at 731.
Cohen was cited in Bushman, 1 Cal. 3d, at 773, 463 P.2d, at 730, but I am not convinced that its
description there and Cohen itself are completely consistent with the "clear and present danger"
standard enunciated in Bushman. Inasmuch as this Court does not dismiss this case, it ought to be
remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered
decision by the State's highest tribunal in Bushman.
MR. JUSTICE WHITE concurs in Paragraph 2 of MR. JUSTICE BLACKMUN'S dissenting opinion. [403 U.S.
15, 29]
214
U.S. Supreme Court
TEXAS v. JOHNSON, 491 U.S. 397 (1989)
491 U.S. 397
TEXAS v. JOHNSON
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 88-155.
Argued March 21, 1989
Decided June 21, 1989
During the 1984 Republican National Convention in Dallas, Texas, respondent Johnson participated in a
political demonstration to protest the policies of the Reagan administration and some Dallas-based
corporations. After a march through the city streets, Johnson burned an American flag while protesters
chanted. No one was physically injured or threatened with injury, although several witnesses were
seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in
violation of a Texas statute, and a State Court of Appeals affirmed. However, the Texas Court of Criminal
Appeals reversed, holding that the State, consistent with the First Amendment, could not punish
Johnson for burning the flag in these circumstances. The court first found that Johnson's burning of the
flag was expressive conduct protected by the First Amendment. The court concluded that the State
could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity.
It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it
was not drawn narrowly enough to encompass only those flag burnings that would likely result in a
serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it
stressed that another Texas statute prohibited breaches of the peace and could be used to prevent
disturbances without punishing this flag desecration.
Held:
Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 402-420.
(a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct,
permitting him to invoke the First Amendment. The State conceded that the conduct was
expressive. Occurring as it did at the end of a demonstration coinciding with the Republican
National Convention, the expressive, overtly political nature of the conduct was both intentional
and overwhelmingly apparent. Pp. 402-406.
(b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the
suppression of expression and would therefore permit application of the test set forth in United
States v. O'Brien, 391 U.S. 367 , whereby an important governmental interest in regulating
nonspeech can justify incidental limitations on First Amendment freedoms when speech and
nonspeech elements are combined in the same course of conduct. An interest in preventing
breaches of the peace is not implicated on this record. Expression may not be prohibited [491
U.S. 397, 398] on the basis that an audience that takes serious offense to the expression may
disturb the peace, since the government cannot assume that every expression of a provocative
215
idea will incite a riot but must look to the actual circumstances surrounding the expression.
Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall
within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to
exchange fisticuffs. This Court's holding does not forbid a State to prevent "imminent lawless
action" and, in fact, Texas has a law specifically prohibiting breaches of the peace. Texas'
interest in preserving the flag as a symbol of nationhood and national unity is related to
expression in this case and, thus, falls outside the O'Brien test. Pp. 406-410.
(c) The latter interest does not justify Johnson's conviction. The restriction on Johnson's political
expression is content based, since the Texas statute is not aimed at protecting the physical
integrity of the flag in all circumstances, but is designed to protect it from intentional and
knowing abuse that causes serious offense to others. It is therefore subject to "the most
exacting scrutiny." Boos v. Barry, 485 U.S. 312 . The government may not prohibit the verbal or
nonverbal expression of an idea merely because society finds the idea offensive or disagreeable,
even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting
expressive conduct relating to it, since the government may not permit designated symbols to
be used to communicate a limited set of messages. Moreover, this Court will not create an
exception to these principles protected by the First Amendment for the American flag alone. Pp.
410-422.
755 S. W. 2d 92, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and
KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 420. REHNQUIST, C. J., filed a
dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 421. STEVENS, J., filed a
dissenting opinion, post, p. 436.
Kathi Alyce Drew argued the cause for petitioner. With her on the briefs were John Vance and Dolena T.
Westergard.
William M. Kunstler argued the cause for respondent. With him on the brief was David D. Cole. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Legal Affairs Council by Wyatt B.
Durrette, Jr., and Bradley B. Cavedo; and for the Washington Legal Foundation by Daniel J. Popeo and
Paul D. Kamenar.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Peter
Linzer, James C. Harrington, and [491 U.S. 397, 399] Steven R. Shapiro; for the Christic Institute et al. by
James C. Goodale; and for Jasper Johns et al. by Robert G. Sugarman and Gloria C. Phares. [491 U.S. 397,
399]
JUSTICE BRENNAN delivered the opinion of the Court.
After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was
convicted of desecrating a flag in violation of Texas law. This case presents the question whether his
conviction is consistent with the First Amendment. We hold that it is not.
I
216
While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson
participated in a political demonstration dubbed the "Republican War Chest Tour." As explained in
literature distributed by the demonstrators and in speeches made by them, the purpose of this event
was to protest the policies of the Reagan administration and of certain Dallas-based corporations. The
demonstrators marched through the Dallas streets, chanting political slogans and stopping at several
corporate locations to stage "die-ins" intended to dramatize the consequences of nuclear war. On
several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson
himself took no part in such activities. He did, however, accept an American flag handed to him by a
fellow protestor who had taken it from a flagpole outside one of the targeted buildings.
The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused
it with kerosene, and set it on fire. While the flag burned, the protestors chanted: "America, the red,
white, and blue, we spit on you." After the demonstrators dispersed, a witness to the flag burning
collected the flag's remains and buried them in his backyard. No one was physically injured or
threatened with injury, though several witnesses testified that they had been seriously offended by the
flag burning. [491 U.S. 397, 400]
Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal
offense with which he was charged was the desecration of a venerated object in violation of Tex. Penal
Code Ann. 42.09(a)(3) (1989). 1 After a trial, he was convicted, sentenced to one year in prison, and
fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction,
706 S. W. 2d 120 (1986), but the Texas Court of Criminal Appeals reversed, 755 S. W. 2d 92 (1988),
holding that the State could not, consistent with the First Amendment, punish Johnson for burning the
flag in these circumstances.
The Court of Criminal Appeals began by recognizing that Johnson's conduct was symbolic speech
protected by the First Amendment: "Given the context of an organized demonstration, speeches,
slogans, and the distribution of literature, anyone who observed appellant's act would have understood
the message that appellant intended to convey. The act for which appellant was convicted was clearly
`speech' contemplated by the First Amendment." Id., at 95. To justify Johnson's conviction for engaging
in symbolic speech, the State asserted two interests: preserving the flag as a symbol of national unity
and preventing breaches of the peace. The Court of Criminal Appeals held that neither interest
supported his conviction. [491 U.S. 397, 401]
Acknowledging that this Court had not yet decided whether the Government may criminally sanction
flag desecration in order to preserve the flag's symbolic value, the Texas court nevertheless concluded
that our decision in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), suggested that
furthering this interest by curtailing speech was impermissible. "Recognizing that the right to differ is the
centerpiece of our First Amendment freedoms," the court explained, "a government cannot mandate by
fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of
unity and prescribe a set of approved messages to be associated with that symbol when it cannot
mandate the status or feeling the symbol purports to represent." 755 S. W. 2d, at 97. Noting that the
State had not shown that the flag was in "grave and immediate danger," Barnette, supra, at 639, of
being stripped of its symbolic value, the Texas court also decided that the flag's special status was not
endangered by Johnson's conduct. 755 S. W. 2d, at 97.
As to the State's goal of preventing breaches of the peace, the court concluded that the flag-desecration
statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result
217
in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this
particular case did not threaten such a reaction. "`Serious offense' occurred," the court admitted, "but
there was no breach of peace nor does the record reflect that the situation was potentially explosive.
One cannot equate `serious offense' with incitement to breach the peace." Id., at 96. The court also
stressed that another Texas statute, Tex. Penal Code Ann. 42.01 (1989), prohibited breaches of the
peace. Citing Boos v. Barry, 485 U.S. 312 (1988), the court decided that 42.01 demonstrated Texas'
ability to prevent disturbances of the peace without punishing this flag desecration. 755 S. W. 2d, at 96.
[491 U.S. 397, 402]
Because it reversed Johnson's conviction on the ground that 42.09 was unconstitutional as applied to
him, the state court did not address Johnson's argument that the statute was, on its face,
unconstitutionally vague and overbroad. We granted certiorari, 488 U.S. 907 (1988), and now affirm.
II
Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words. 2
This fact [491 U.S. 397, 403] somewhat complicates our consideration of his conviction under the First
Amendment. We must first determine whether Johnson's burning of the flag constituted expressive
conduct, permitting him to invoke the First Amendment in challenging his conviction. See, e. g., Spence
v. Washington, 418 U.S. 405, 409 -411 (1974). If his conduct was expressive, we next decide whether the
State's regulation is related to the suppression of free expression. See, e. g., United States v. O'Brien,
391 U.S. 367, 377 (1968); Spence, supra, at 414, n. 8. If the State's regulation is not related to
expression, then the less stringent standard we announced in United States v. O'Brien for regulations of
noncommunicative conduct controls. See O'Brien, supra, at 377. If it is, then we are outside of O'Brien's
test, and we must ask whether this interest justifies Johnson's conviction under a more demanding
standard. 3 See Spence, supra, at 411. A [491 U.S. 397, 404] third possibility is that the State's asserted
interest is simply not implicated on these facts, and in that event the interest drops out of the picture.
See 418 U.S., at 414 , n. 8.
The First Amendment literally forbids the abridgment only of "speech," but we have long recognized
that its protection does not end at the spoken or written word. While we have rejected "the view that
an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the
conduct intends thereby to express an idea," United States v. O'Brien, supra, at 376, we have
acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within
the scope of the First and Fourteenth Amendments," Spence, supra, at 409.
In deciding whether particular conduct possesses sufficient communicative elements to bring the First
Amendment into play, we have asked whether "[a]n intent to convey a particularized message was
present, and [whether] the likelihood was great that the message would be understood by those who
viewed it." 418 U.S., at 410 -411. Hence, we have recognized the expressive nature of students' wearing
of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503, 505 (1969); of a sit-in by blacks in a "whites only"
area to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141 -142 (1966); of the wearing of
American military uniforms in a dramatic presentation criticizing American involvement in Vietnam,
Schacht v. United States, 398 U.S. 58 (1970); and of picketing about a wide variety of causes, see, e. g.,
Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 313 -314 (1968); United States v. Grace, 461
U.S. 171, 176 (1983).
218
Especially pertinent to this case are our decisions recognizing the communicative nature of conduct
relating to flags. Attaching a peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag,
Barnette, 319 U.S., at 632 ; and displaying a red flag, Stromberg v. California, 283 U.S. 359 , [491 U.S.
397, 405] 368-369 (1931), we have held, all may find shelter under the First Amendment. See also
Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (treating flag
"contemptuously" by wearing pants with small flag sewn into their seat is expressive conduct). That we
have had little difficulty identifying an expressive element in conduct relating to flags should not be
surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say,
"the one visible manifestation of two hundred years of nationhood." Id., at 603 (REHNQUIST, J.,
dissenting). Thus, we have observed:
"[T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of
communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution,
or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and
ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or
design." Barnette, supra, at 632.
Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of
letters found in "America."
We have not automatically concluded, however, that any action taken with respect to our flag is
expressive. Instead, in characterizing such action for First Amendment purposes, we have considered
the context in which it occurred. In Spence, for example, we emphasized that Spence's taping of a peace
sign to his flag was "roughly simultaneous with and concededly triggered by the Cambodian incursion
and the Kent State tragedy." 418 U.S., at 410 . The State of Washington had conceded, in fact, that
Spence's conduct was a form of communication, and we stated that "the State's concession is inevitable
on this record." Id., at 409.
The State of Texas conceded for purposes of its oral argument in this case that Johnson's conduct was
expressive conduct, Tr. of Oral Arg. 4, and this concession seems to us as [491 U.S. 397, 406] prudent as
was Washington's in Spence. Johnson burned an American flag as part - indeed, as the culmination - of a
political demonstration that coincided with the convening of the Republican Party and its renomination
of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both
intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag
as follows: "The American Flag was burned as Ronald Reagan was being renominated as President. And
a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been
made at that time. It's quite a just position [juxtaposition]. We had new patriotism and no patriotism." 5
Record 656. In these circumstances, Johnson's burning of the flag was conduct "sufficiently imbued with
elements of communication," Spence, 418 U.S., at 409 , to implicate the First Amendment.
III
The government generally has a freer hand in restricting expressive conduct than it has in restricting the
written or spoken word. See O'Brien, 391 U.S. at 376-377; Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984); Dallas v. Stanglin, 490 U.S. 19, 25 (1989). It may not, however,
proscribe particular conduct because it has expressive elements. "[W]hat might be termed the more
generalized guarantee of freedom of expression makes the communicative nature of conduct an
inadequate basis for singling out that conduct for proscription. A law directed at the communicative
nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of
219
need that the First Amendment requires." Community for Creative Non-Violence v. Watt, 227 U.S. App.
D.C. 19, 55-56, 703 F.2d 586, 622-623 (1983) (Scalia, J., dissenting) (emphasis in original), rev'd sub nom.
Clark v. Community for Creative Non-Violence, supra. It is, in short, not simply the verbal or nonverbal
nature of the expression, but the governmental [491 U.S. 397, 407] interest at stake, that helps to
determine whether a restriction on that expression is valid.
Thus, although we have recognized that where "`speech' and `nonspeech' elements are combined in the
same course of conduct, a sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms," O'Brien, supra, at 376, we
have limited the applicability of O'Brien's relatively lenient standard to those cases in which "the
governmental interest is unrelated to the suppression of free expression." Id., at 377; see also Spence,
supra, at 414, n. 8. In stating, moreover, that O'Brien's test "in the last analysis is little, if any, different
from the standard applied to time, place, or manner restrictions," Clark, supra, at 298, we have
highlighted the requirement that the governmental interest in question be unconnected to expression in
order to come under O'Brien's less demanding rule.
In order to decide whether O'Brien's test applies here, therefore, we must decide whether Texas has
asserted an interest in support of Johnson's conviction that is unrelated to the suppression of
expression. If we find that an interest asserted by the State is simply not implicated on the facts before
us, we need not ask whether O'Brien's test applies. See Spence, supra, at 414, n. 8. The State offers two
separate interests to justify this conviction: preventing breaches of the peace and preserving the flag as
a symbol of nationhood and national unity. We hold that the first interest is not implicated on this
record and that the second is related to the suppression of expression.
A
Texas claims that its interest in preventing breaches of the peace justifies Johnson's conviction for flag
desecration. 4 [491 U.S. 397, 408] However, no disturbance of the peace actually occurred or
threatened to occur because of Johnson's burning of the flag. Although the State stresses the disruptive
behavior of the protestors during their march toward City Hall, Brief for Petitioner 34-36, it admits that
"no actual breach of the peace occurred at the time of the flagburning or in response to the
flagburning." Id., at 34. The State's emphasis on the protestors' disorderly actions prior to arriving at City
Hall is not only somewhat surprising given that no charges were brought on the basis of this conduct,
but it also fails to show that a disturbance of the peace was a likely reaction to Johnson's conduct. The
only evidence offered by the State at trial to show the reaction to Johnson's actions was the testimony
of several persons who had been seriously offended by the flag burning. Id., at 6-7.
The State's position, therefore, amounts to a claim that an audience that takes serious offense at
particular expression is necessarily likely to disturb the peace and that the expression may be prohibited
on this basis. 5 Our precedents do not countenance such a presumption. On the contrary, they recognize
that a principal "function of free speech under our system of government is to invite dispute. It may
indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or [491 U.S. 397, 409] even stirs people to anger." Terminiello v. Chicago, 337
U.S. 1, 4 (1949). See also Cox v. Louisiana, 379 U.S. 536, 551 (1965); Tinker v. Des Moines Independent
Community School Dist. 393 U.S., at 508 -509; Coates v. Cincinnati, 402 U.S. 611, 615 (1971); Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 55 -56 (1988). It would be odd indeed to conclude both that "if it is
the speaker's opinion that gives offense, that consequence is a reason for according it constitutional
protection," FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) (opinion of STEVENS, J.), and that the
220
government may ban the expression of certain disagreeable ideas on the unsupported presumption that
their very disagreeableness will provoke violence.
Thus, we have not permitted the government to assume that every expression of a provocative idea will
incite a riot, but have instead required careful consideration of the actual circumstances surrounding
such expression, asking whether the expression "is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
(reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept Texas' arguments
that it need only demonstrate "the potential for a breach of the peace," Brief for Petitioner 37, and that
every flag burning necessarily possesses that potential, would be to eviscerate our holding in
Brandenburg. This we decline to do.
Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to
provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New
Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson's
generalized expression of dissatisfaction with the policies of the Federal Government as a direct
personal insult or an invitation to exchange fisticuffs. See id., at 572-573; Cantwell v. Connecticut, 310
U.S. 296, 309 (1940); FCC v. Pacifica Foundation, supra, at 745 (opinion of STEVENS, J.). [491 U.S. 397,
410]
We thus conclude that the State's interest in maintaining order is not implicated on these facts. The
State need not worry that our holding will disable it from preserving the peace. We do not suggest that
the First Amendment forbids a State to prevent "imminent lawless action." Brandenburg, supra, at 447.
And, in fact, Texas already has a statute specifically prohibiting breaches of the peace, Tex. Penal Code
Ann. 42.01 (1989), which tends to confirm that Texas need not punish this flag desecration in order to
keep the peace. See Boos v. Barry, 485 U.S., at 327 -329.
B
The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity. In
Spence, we acknowledged that the government's interest in preserving the flag's special symbolic value
"is directly related to expression in the context of activity" such as affixing a peace symbol to a flag. 418
U.S., at 414 , n. 8. We are equally persuaded that this interest is related to expression in the case of
Johnson's burning of the flag. The State, apparently, is concerned that such conduct will lead people to
believe either that the flag does not stand for nationhood and national unity, but instead reflects other,
less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, that we do
not enjoy unity as a Nation. These concerns blossom only when a person's treatment of the flag
communicates some message, and thus are related "to the suppression of free expression" within the
meaning of O'Brien. We are thus outside of O'Brien's test altogether.
IV
It remains to consider whether the State's interest in preserving the flag as a symbol of nationhood and
national unity justifies Johnson's conviction.
As in Spence, "[w]e are confronted with a case of prosecution for the expression of an idea through
activity," and "[a]ccordingly, we must examine with particular care the interests [491 U.S. 397, 411]
221
advanced by [petitioner] to support its prosecution." 418 U.S., at 411 . Johnson was not, we add,
prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction
with the policies of this country, expression situated at the core of our First Amendment values. See, e.
g., Boos v. Barry, supra, at 318; Frisby v. Schultz, 487 U.S. 474, 479 (1988).
Moreover, Johnson was prosecuted because he knew that his politically charged expression would cause
"serious offense." If he had burned the flag as a means of disposing of it because it was dirty or torn, he
would not have been convicted of flag desecration under this Texas law: federal law designates burning
as the preferred means of disposing of a flag "when it is in such condition that it is no longer a fitting
emblem for display," 36 U.S.C. 176(k), and Texas has no quarrel with this means of disposal. Brief for
Petitioner 45. The Texas law is thus not aimed at protecting the physical integrity of the flag in all
circumstances, but is designed instead to protect it only against impairments that would cause serious
offense to others. 6 Texas concedes as much: "Section 42.09(b) reaches only those severe acts of
physical abuse of the flag carried out in a way likely to be offensive. The statute mandates intentional or
knowing abuse, that is, the kind of mistreatment that is not innocent, but rather is intentionally
designed to seriously offend other individuals." Id., at 44.
Whether Johnson's treatment of the flag violated Texas law thus depended on the likely communicative
impact of his expressive conduct. 7 Our decision in Boos v. Barry, supra, [491 U.S. 397, 412] tells us that
this restriction on Johnson's expression is content based. In Boos, we considered the constitutionality of
a law prohibiting "the display of any sign within 500 feet of a foreign embassy if that sign tends to bring
that foreign government into `public odium' or `public disrepute.'" Id., at 315. Rejecting the argument
that the law was content neutral because it was justified by "our international law obligation to shield
diplomats from speech that offends their dignity," id., at 320, we held that "[t]he emotive impact of
speech on its audience is not a `secondary effect'" unrelated to the content of the expression itself. Id.,
at 321 (plurality opinion); see also id., at 334 (BRENNAN, J., concurring in part and concurring in
judgment).
According to the principles announced in Boos, Johnson's political expression was restricted because of
the content of the message he conveyed. We must therefore subject the State's asserted interest in
preserving the special symbolic character of the flag to "the most exacting scrutiny." Boos v. Barry,
supra, at 321. 8 [491 U.S. 397, 413]
Texas argues that its interest in preserving the flag as a symbol of nationhood and national unity
survives this close analysis. Quoting extensively from the writings of this Court chronicling the flag's
historic and symbolic role in our society, the State emphasizes the "`special place'" reserved for the flag
in our Nation. Brief for Petitioner 22, quoting Smith v. Goguen, 415 U.S., at 601 (REHNQUIST, J.,
dissenting). The State's argument is not that it has an interest simply in maintaining the flag as a symbol
of something, no matter what it symbolizes; indeed, if that were the State's position, it would be
difficult to see how that interest is endangered by highly symbolic conduct such as Johnson's. Rather,
the State's claim is that it has an interest in preserving the flag as a symbol of nationhood and national
unity, a symbol with a determinate range of meanings. Brief for Petitioner 20-24. According to Texas, if
one physically treats the flag in a way that would tend to cast doubt on either the idea that nationhood
and national unity are the flag's referents or that national unity actually exists, the message conveyed
thereby is a harmful one and therefore may be prohibited. 9 [491 U.S. 397, 414]
If there is a bedrock principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
222
See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U.S., at 55 -56; City Council of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789, 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 , 72 (1983);
Carey v. Brown, 447 U.S. 455, 462 -463 (1980); FCC v. Pacifica Foundation, 438 U.S., at 745 -746; Young
v. American Mini Theatres, Inc., 427 U.S. 50, 63 -65, 67-68 (1976) (plurality opinion); Buckley v. Valeo,
424 U.S. 1, 16 -17 (1976); Grayned v. Rockford, 408 U.S. 104, 115 (1972); Police Dept. of Chicago v.
Mosley, 408 U.S. 92, 95 (1972); Bachellar v. Maryland, 397 U.S. 564, 567 (1970); O'Brien, 391 U.S., at 382
; Brown v. Louisiana, 383 U.S., at 142 -143; Stromberg v. California, 283 U.S., at 368 -369.
We have not recognized an exception to this principle even where our flag has been involved. In Street
v. New York, 394 U.S. 576 (1969), we held that a State may not criminally punish a person for uttering
words critical of the flag. Rejecting the argument that the conviction could be sustained on the ground
that Street had "failed to show the respect for our national symbol which may properly be demanded of
every citizen," we concluded that "the constitutionally guaranteed `freedom to be intellectually . . .
diverse or even contrary,' and the `right to differ as to things that touch the heart of the existing order,'
encompass the freedom to express publicly one's opinions about our flag, including those opinions
which are defiant or contemptuous." Id., at 593, quoting Barnette, 319 U.S., at 642 . Nor may the
government, we have held, compel conduct that would evince respect for the flag. "To sustain the
compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to
speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." Id.,
at 634. [491 U.S. 397, 415]
In holding in Barnette that the Constitution did not leave this course open to the government, Justice
Jackson described one of our society's defining principles in words deserving of their frequent
repetition: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein." Id., at 642. In Spence, we held that the same
interest asserted by Texas here was insufficient to support a criminal conviction under a flag-misuse
statute for the taping of a peace sign to an American flag. "Given the protected character of [Spence's]
expression and in light of the fact that no interest the State may have in preserving the physical integrity
of a privately owned flag was significantly impaired on these facts," we held, "the conviction must be
invalidated." 418 U.S., at 415 . See also Goguen, supra, at 588 (WHITE, J., concurring in judgment) (to
convict person who had sewn a flag onto the seat of his pants for "contemptuous" treatment of the flag
would be "[t]o convict not to protect the physical integrity or to protect against acts interfering with the
proper use of the flag, but to punish for communicating ideas unacceptable to the controlling majority in
the legislature").
In short, nothing in our precedents suggests that a State may foster its own view of the flag by
prohibiting expressive conduct relating to it. 10 To bring its argument outside our [491 U.S. 397, 416]
precedents, Texas attempts to convince us that even if its interest in preserving the flag's symbolic role
does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to
forbid the outright destruction of the flag. The State's argument cannot depend here on the distinction
between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no
moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that
conduct is related to expression, as it is here. See supra, at 402-403. In addition, both Barnette and
Spence involved expressive conduct, not only verbal communication, and both found that conduct
protected.
223
Texas' focus on the precise nature of Johnson's expression, moreover, misses the point of our prior
decisions: their enduring lesson, that the government may not prohibit expression simply because it
disagrees with its message, is not dependent on the particular mode in which one chooses to express an
idea. 11 If we were to hold that a State may forbid flag burning wherever it is likely to endanger the
flag's symbolic role, but allow it wherever burning a flag promotes that role - as where, for example, a
person ceremoniously burns a dirty flag - we would be saying that when it comes to impairing the flag's
physical integrity, the flag itself may be used as [491 U.S. 397, 417] a symbol - as a substitute for the
written or spoken word or a "short cut from mind to mind" - only in one direction. We would be
permitting a State to "prescribe what shall be orthodox" by saying that one may burn the flag to convey
one's attitude toward it and its referents only if one does not endanger the flag's representation of
nationhood and national unity.
We never before have held that the Government may ensure that a symbol be used to express only one
view of that symbol or its referents. Indeed, in Schacht v. United States, we invalidated a federal statute
permitting an actor portraying a member of one of our Armed Forces to "`wear the uniform of that
armed force if the portrayal does not tend to discredit that armed force.'" 398 U.S., at 60 , quoting 10
U.S.C. 772(f). This proviso, we held, "which leaves Americans free to praise the war in Vietnam but can
send persons like Schacht to prison for opposing it, cannot survive in a country which has the First
Amendment." Id., at 63.
We perceive no basis on which to hold that the principle underlying our decision in Schacht does not
apply to this case. To conclude that the government may permit designated symbols to be used to
communicate only a limited set of messages would be to enter territory having no discernible or
defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of
copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First
Amendment, how would we decide which symbols were sufficiently special to warrant this unique
status? To do so, we would be forced to consult our own political preferences, and impose them on the
citizenry, in the very way that the First Amendment forbids us to do. See Carey v. Brown, 447 U.S., at
466 -467.
There is, moreover, no indication - either in the text of the Constitution or in our cases interpreting it that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised
to learn that the persons [491 U.S. 397, 418] who framed our Constitution and wrote the Amendment
that we now construe were not known for their reverence for the Union Jack. The First Amendment
does not guarantee that other concepts virtually sacred to our Nation as a whole - such as the principle
that discrimination on the basis of race is odious and destructive - will go unquestioned in the
marketplace of ideas. See Brandenburg v. Ohio, 395 U.S. 444 (1969). We decline, therefore, to create for
the flag an exception to the joust of principles protected by the First Amendment.
It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a special
place reserved for the flag in this Nation, and thus we do not doubt that the government has a
legitimate interest in making efforts to "preserv[e] the national flag as an unalloyed symbol of our
country." Spence, 418 U.S., at 412 . We reject the suggestion, urged at oral argument by counsel for
Johnson, that the government lacks "any state interest whatsoever" in regulating the manner in which
the flag may be displayed. Tr. of Oral Arg. 38. Congress has, for example, enacted precatory regulations
describing the proper treatment of the flag, see 36 U.S.C. 173-177, and we cast no doubt on the
legitimacy of its interest in making such recommendations. To say that the government has an interest
in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a
224
person for burning a flag as a means of political protest. "National unity as an end which officials may
foster by persuasion and example is not in question. The problem is whether under our Constitution
compulsion as here employed is a permissible means for its achievement." Barnette, 319 U.S., at 640 .
We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct
such as Johnson's will not endanger the special role played by our flag or the feelings it inspires. To
paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown
[491 U.S. 397, 419] man will change our Nation's attitude towards its flag. See Abrams v. United States,
250 U.S. 616, 628 (1919) (Holmes, J., dissenting). Indeed, Texas' argument that the burning of an
American flag "`is an act having a high likelihood to cause a breach of the peace,'" Brief for Petitioner 31,
quoting Sutherland v. DeWulf, 323 F. Supp. 740, 745 (SD Ill. 1971) (citation omitted), and its statute's
implicit assumption that physical mistreatment of the flag will lead to "serious offense," tend to confirm
that the flag's special role is not in danger; if it were, no one would riot or take offense because a flag
had been burned.
We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be
strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of
freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of
criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of
our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort
McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag - and it is that
resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these
matters. It is to persuade them that they are wrong. "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 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." Whitney v. California, 274
U.S. 357, 377 (1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's
response to the flag [491 U.S. 397, 420] burner may exploit the uniquely persuasive power of the flag
itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better
way to counter a flag burner's message than by saluting the flag that burns, no surer means of
preserving the dignity even of the flag that burned than by - as one witness here did - according its
remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so
we dilute the freedom that this cherished emblem represents.
V
Johnson was convicted for engaging in expressive conduct. The State's interest in preventing breaches of
the peace does not support his conviction because Johnson's conduct did not threaten to disturb the
peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity
justify his criminal conviction for engaging in political expression. The judgment of the Texas Court of
Criminal Appeals is therefore
Affirmed.
225
Footnotes
[ Footnote 1 ] Texas Penal Code Ann. 42.09 (1989) provides in full:
" 42.09. Desecration of Venerated Object
"(a) A person commits an offense if he intentionally or knowingly desecrates:
"(1) a public monument;
"(2) a place of worship or burial; or
"(3) a state or national flag.
"(b) For purposes of this section, `desecrate' means deface, damage, or otherwise physically
mistreat in a way that the actor knows will seriously offend one or more persons likely to
observe or discover his action.
"(c) An offense under this section is a Class A misdemeanor."
[ Footnote 2 ] Because the prosecutor's closing argument observed that Johnson had led the protestors
in chants denouncing the flag while it burned, Johnson suggests that he may have been convicted for
uttering critical words rather than for burning the flag. Brief for Respondent 33-34. He relies on Street v.
New York, 394 U.S. 576, 578 (1969), in which we reversed a conviction obtained under a New York
statute that prohibited publicly defying or casting contempt on the flag "either by words or act" because
we were persuaded that the defendant may have been convicted for his words alone. Unlike the law we
faced in Street, however, the Texas flag-desecration statute does not on its face permit conviction for
remarks critical of the flag, as Johnson himself admits. See Brief for Respondent 34. Nor was the jury in
this case told that it could convict Johnson of flag desecration if it found only that he had uttered words
critical of the flag and its referents.
Johnson emphasizes, though, that the jury was instructed - according to Texas' law of parties - that "`a
person is criminally responsible for an offense committed by the conduct of another if acting with intent
to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to
aid the other person to commit the offense.'" Id., at 2, n. 2, quoting 1 Record 49. The State offered this
instruction because Johnson's defense was that he was not the person who had burned the flag.
Johnson did not object to this instruction at trial, and although he challenged it on direct appeal, he did
so only on the ground that there was insufficient evidence to support it. 706 S. W. 2d 120, 124 (Tex.
App. 1986). It is only in this Court that Johnson has argued that the law-of-parties instruction might have
led the jury to convict him for his words alone. Even if we were to find that this argument is properly
raised here, however, we would conclude that it has no merit in these circumstances. The instruction
would not have permitted a conviction merely for the pejorative nature of Johnson's words, and those
words themselves did not encourage the burning of the flag as the instruction seems to require. Given
the additional fact that "the bulk of the State's [491 U.S. 397, 403] argument was premised on
Johnson's culpability as a sole actor," ibid., we find it too unlikely that the jury convicted Johnson on the
basis of this alternative theory to consider reversing his conviction on this ground.
[ Footnote 3 ] Although Johnson has raised a facial challenge to Texas' flag-desecration statute, we
choose to resolve this case on the basis of his claim that the statute as applied to him violates the First
Amendment. Section 42.09 regulates only physical conduct with respect to the flag, not the written or
spoken word, and although one violates the statute only if one "knows" that one's physical treatment of
the flag "will seriously offend one or more persons likely to observe or discover his action," Tex. Penal
Code Ann. 42.09(b) (1989), this fact does not necessarily mean that the statute applies only to
expressive conduct protected by the First Amendment. Cf. Smith v. Goguen, 415 U.S. 566, 588 (1974)
(WHITE, J., concurring in judgment) (statute prohibiting "contemptuous" treatment of flag encompasses
226
only expressive conduct). A tired person might, for example, drag a flag through the mud, knowing that
this conduct is likely to offend others, and yet have no thought of expressing any idea; neither the
language nor the Texas courts' interpretations of the statute precludes the possibility that such a person
would be prosecuted for flag desecration. Because the prosecution of a person who had not engaged in
expressive conduct would pose a different case, and because this case may be disposed of on narrower
grounds, we address only Johnson's claim that 42.09 as applied to political expression like his violates
the First Amendment.
[ Footnote 4 ] Relying on our decision in Boos v. Barry, 485 U.S. 312 (1988), Johnson argues that this
state interest is related to the suppression of free expression within the meaning of United States v.
O'Brien, 391 U.S. 367 (1968). He reasons that the violent reaction to flag burnings feared by [491 U.S.
397, 408] Texas would be the result of the message conveyed by them, and that this fact connects the
State's interest to the suppression of expression. Brief for Respondent 12, n. 11. This view has found
some favor in the lower courts. See Monroe v. State Court of Fulton County, 739 F.2d 568, 574-575
(CA11 1984). Johnson's theory may overread Boos insofar as it suggests that a desire to prevent a
violent audience reaction is "related to expression" in the same way that a desire to prevent an
audience from being offended is "related to expression." Because we find that the State's interest in
preventing breaches of the peace is not implicated on these facts, however, we need not venture
further into this area.
[ Footnote 5 ] There is, of course, a tension between this argument and the State's claim that one need
not actually cause serious offense in order to violate 42.09. See Brief for Petitioner 44.
[ Footnote 6 ] Cf. Smith v. Goguen, 415 U.S., at 590 -591 (BLACKMUN, J., dissenting) (emphasizing that
lower court appeared to have construed state statute so as to protect physical integrity of the flag in all
circumstances); id., at 597-598 (REHNQUIST, J., dissenting) (same).
[ Footnote 7 ] Texas suggests that Johnson's conviction did not depend on the onlookers' reaction to the
flag burning because 42.09 is violated only when a person physically mistreats the flag in a way that he
"knows will seriously offend one or more persons likely to observe or discover his action." Tex. [491 U.S.
397, 412] Penal Code Ann. 42.09(b) (1989) (emphasis added). "The `serious offense' language of the
statute," Texas argues, "refers to an individual's intent and to the manner in which the conduct is
effectuated, not to the reaction of the crowd." Brief for Petitioner 44. If the statute were aimed only at
the actor's intent and not at the communicative impact of his actions, however, there would be little
reason for the law to be triggered only when an audience is "likely" to be present. At Johnson's trial,
indeed, the State itself seems not to have seen the distinction between knowledge and actual
communicative impact that it now stresses; it proved the element of knowledge by offering the
testimony of persons who had in fact been seriously offended by Johnson's conduct. Id., at 6-7. In any
event, we find the distinction between Texas' statute and one dependent on actual audience reaction
too precious to be of constitutional significance. Both kinds of statutes clearly are aimed at protecting
onlookers from being offended by the ideas expressed by the prohibited activity.
[ Footnote 8 ] Our inquiry is, of course, bounded by the particular facts of this case and by the statute
under which Johnson was convicted. There was no evidence that Johnson himself stole the flag he
burned, Tr. of Oral Arg. 17, nor did the prosecution or the arguments urged in support of it depend on
[491 U.S. 397, 413] the theory that the flag was stolen. Ibid. Thus, our analysis does not rely on the way
in which the flag was acquired, and nothing in our opinion should be taken to suggest that one is free to
227
steal a flag so long as one later uses it to communicate an idea. We also emphasize that Johnson was
prosecuted only for flag desecration - not for trespass, disorderly conduct, or arson.
[ Footnote 9 ] Texas claims that "Texas is not endorsing, protecting, avowing or prohibiting any
particular philosophy." Brief for Petitioner 29. If Texas means to suggest that its asserted interest does
not prefer Democrats over Socialists, or Republicans over Democrats, for example, then it is beside the
point, for Johnson does not rely on such an argument. He argues instead that the State's desire to
maintain the flag as a symbol of nationhood and national unity assumes that there is only one proper
view of the flag. Thus, if Texas means to argue that its interest does not prefer any viewpoint over
another, it is mistaken; surely one's attitude toward the flag and its referents is a viewpoint.
[ Footnote 10 ] Our decision in Halter v. Nebraska, 205 U.S. 34 (1907), addressing the validity of a state
law prohibiting certain commercial uses of the flag, is not to the contrary. That case was decided "nearly
20 years before the Court concluded that the First Amendment applies to the States by virtue of the
Fourteenth Amendment." Spence v. Washington, 418 U.S. 405, 413 , n. 7 (1974). More important, as we
continually emphasized in Halter itself, that case involved purely commercial rather than political
speech. 205 U.S., at 38 , 41, 42, 45.
Nor does San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 524
(1987), addressing the validity of Congress' decision to "authoriz[e] the United States Olympic
Committee to prohibit [491 U.S. 397, 416] certain commercial and promotional uses of the word
`Olympic,'" relied upon by THE CHIEF JUSTICE's dissent, post, at 429, even begin to tell us whether the
government may criminally punish physical conduct towards the flag engaged in as a means of political
protest.
[ Footnote 11 ] THE CHIEF JUSTICE'S dissent appears to believe that Johnson's conduct may be
prohibited and, indeed, criminally sanctioned, because "his act . . . conveyed nothing that could not have
been conveyed and was not conveyed just as forcefully in a dozen different ways." Post, at 431. Not only
does this assertion sit uneasily next to the dissent's quite correct reminder that the flag occupies a
unique position in our society - which demonstrates that messages conveyed without use of the flag are
not "just as forcefu[l]" as those conveyed with it - but it also ignores the fact that, in Spence, supra, we
"rejected summarily" this very claim. See 418 U.S., at 411 , n. 4.
JUSTICE KENNEDY, concurring.
I write not to qualify the words JUSTICE BRENNAN chooses so well, for he says with power all that is
necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this
case, like others before us from time to time, exacts its personal toll. This prompts me to add to our
pages these few remarks.
The case before us illustrates better than most that the judicial power is often difficult in its exercise.
We cannot here ask another Branch to share responsibility, as when the argument is made that a
statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged
against a pure command of the Constitution. The outcome can be laid at no door but ours.
The hard fact is that sometimes we must make decisions we do not like. We make them because they
are right, right [491 U.S. 397, 421] in the sense that the law and the Constitution, as we see them,
228
compel the result. And so great is our commitment to the process that, except in the rare case, we do
not pause to express distaste for the result, perhaps for fear of undermining a valued principle that
dictates the decision. This is one of those rare cases.
Our colleagues in dissent advance powerful arguments why respondent may be convicted for his
expression, reminding us that among those who will be dismayed by our holding will be some who have
had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of
honor in an age when absolutes are distrusted and simple truths are burdened by unneeded
apologetics.
With all respect to those views, I do not believe the Constitution gives us the right to rule as the
dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols
often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share,
beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces
recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag
protects those who hold it in contempt.
For all the record shows, this respondent was not a philosopher and perhaps did not even possess the
ability to comprehend how repellent his statements must be to the Republic itself. But whether or not
he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in
both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he
must go free.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE O'CONNOR join, dissenting.
In holding this Texas statute unconstitutional, the Court ignores Justice Holmes' familiar aphorism that
"a page of history is worth a volume of logic." New York Trust Co. v. [491 U.S. 397, 422] Eisner, 256 U.S.
345, 349 (1921). For more than 200 years, the American flag has occupied a unique position as the
symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the
way respondent Johnson did here.
At the time of the American Revolution, the flag served to unify the Thirteen Colonies at home, while
obtaining recognition of national sovereignty abroad. Ralph Waldo Emerson's "Concord Hymn"
describes the first skirmishes of the Revolutionary War in these lines:
"By the rude bridge that arched the flood Their flag to April's breeze unfurled, Here once the
embattled farmers stood And fired the shot heard round the world."
During that time, there were many colonial and regimental flags, adorned with such symbols as pine
trees, beavers, anchors, and rattlesnakes, bearing slogans such as "Liberty or Death," "Hope," "An
Appeal to Heaven," and "Don't Tread on Me." The first distinctive flag of the Colonies was the "Grand
Union Flag" - with 13 stripes and a British flag in the left corner - which was flown for the first time on
January 2, 1776, by troops of the Continental Army around Boston. By June 14, 1777, after we declared
our independence from England, the Continental Congress resolved:
"That the flag of the thirteen United States be thirteen stripes, alternate red and white: that the
union be thirteen stars, white in a blue field, representing a new constellation." 8 Journal of the
Continental Congress 1774-1789, p. 464 (W. Ford ed. 1907).
229
One immediate result of the flag's adoption was that American vessels harassing British shipping sailed
under an authorized national flag. Without such a flag, the British could treat captured seamen as
pirates and hang them summarily; with a national flag, such seamen were treated as prisoners of war.
[491 U.S. 397, 423]
During the War of 1812, British naval forces sailed up Chesapeake Bay and marched overland to sack
and burn the city of Washington. They then sailed up the Patapsco River to invest the city of Baltimore,
but to do so it was first necessary to reduce Fort McHenry in Baltimore Harbor. Francis Scott Key, a
Washington lawyer, had been granted permission by the British to board one of their warships to
negotiate the release of an American who had been taken prisoner. That night, waiting anxiously on the
British ship, Key watched the British fleet firing on Fort McHenry. Finally, at daybreak, he saw the fort's
American flag still flying; the British attack had failed. Intensely moved, he began to scribble on the back
of an envelope the poem that became our national anthem:
"O say can you see by the dawn's early light What so proudly we hail'd at the twilight's last
gleaming, Whose broad stripes & bright stars through the perilous fight O'er the ramparts we
watch'd, were so gallantly streaming? And the rocket's red glare, the bomb bursting in air, Gave
proof through the night that our flag was still there, O say does that star-spangled banner yet
wave O'er the land of the free & the home of the brave?"
The American flag played a central role in our Nation's most tragic conflict, when the North fought
against the South. The lowering of the American flag at Fort Sumter was viewed as the start of the war.
G. Preble, History of the Flag of the United States of America 453 (1880). The Southern States, to
formalize their separation from the Union, adopted the "Stars and Bars" of the Confederacy. The Union
troops marched to the sound of "Yes We'll Rally Round The Flag Boys, We'll Rally Once Again." President
Abraham Lincoln refused proposals to remove from the [491 U.S. 397, 424] American flag the stars
representing the rebel States, because he considered the conflict not a war between two nations but an
attack by 11 States against the National Government. Id., at 411. By war's end, the American flag again
flew over "an indestructible union, composed of indestructible states." Texas v. White, 7 Wall. 700, 725
(1869).
One of the great stories of the Civil War is told in John Greenleaf Whittier's poem, "Barbara Frietchie":
"Up from the meadows rich with corn, Clear in the cool September morn, The clustered spires of
Frederick stand Green-walled by the hills of Maryland. Round about them orchards sweep,
Apple- and peach-tree fruited deep, Fair as a garden of the Lord To the eyes of the famished
rebel horde, On that pleasant morn of the early fall When Lee marched over the mountain wall,
- Over the mountains winding down, Horse and foot, into Frederick town. Forty flags with their
silver stars, Forty flags with their crimson bars, Flapped in the morning wind: the sun Of noon
looked down, and saw not one. Up rose old Barbara Frietchie then, Bowed with her fourscore
years and ten; Bravest of all in Frederick town, She took up the flag the men hauled down; In her
attic-window the staff she set, To show that one heart was loyal yet. Up the street came the
rebel tread, Stonewall Jackson riding ahead. Under his slouched hat left and right He glanced:
the old flag met his sight. `Halt!' - the dust-brown ranks stood fast. `Fire!' - out blazed the rifleblast. [491 U.S. 397, 425] It shivered the window, pane and sash; It rent the banner with seam
and gash. Quick, as it fell, from the broken staff Dame Barbara snatched the silken scarf; She
leaned far out on the window-sill, And shook it forth with a royal will. `Shoot, if you must, this
old gray head, But spare your country's flag,' she said. A shade of sadness, a blush of shame,
Over the face of the leader came; The nobler nature within him stirred To life at that woman's
230
deed and word: `Who touches a hair of yon gray head Dies like a dog! March on!' he said. All day
long through Frederick street Sounded the tread of marching feet: All day long that free flag tost
Over the heads of the rebel host. Ever its torn folds rose and fell On the loyal winds that loved it
well; And through the hill-gaps sunset light Shone over it with a warm good-night. Barbara
Frietchie's work is o'er, And the Rebel rides on his raids no more. Honor to her! and let a tear
Fall, for her sake, on Stonewall's bier. Over Barbara Frietchie's grave, Flag of Freedom and
Union, wave! Peace and order and beauty draw Round thy symbol of light and law; And ever the
stars above look down On thy stars below in Frederick town!"
In the First and Second World Wars, thousands of our countrymen died on foreign soil fighting for the
American cause. At Iwo Jima in the Second World War, United States Marines fought hand to hand
against thousands of [491 U.S. 397, 426] Japanese. By the time the Marines reached the top of Mount
Suribachi, they raised a piece of pipe upright and from one end fluttered a flag. That ascent had cost
nearly 6,000 American lives. The Iwo Jima Memorial in Arlington National Cemetery memorializes that
event. President Franklin Roosevelt authorized the use of the flag on labels, packages, cartons, and
containers intended for export as lend-lease aid, in order to inform people in other countries of the
United States' assistance. Presidential Proclamation No. 2605, 58 Stat. 1126.
During the Korean war, the successful amphibious landing of American troops at Inchon was marked by
the raising of an American flag within an hour of the event. Impetus for the enactment of the Federal
Flag Desecration Statute in 1967 came from the impact of flag burnings in the United States on troop
morale in Vietnam. Representative L. Mendel Rivers, then Chairman of the House Armed Services
Committee, testified that "[t]he burning of the flag . . . has caused my mail to increase 100 percent from
the boys in Vietnam, writing me and asking me what is going on in America." Desecration of the Flag,
Hearings on H. R. 271 before Sub-committee No. 4 of the House Committee on the Judiciary, 90th Cong.,
1st Sess., 189 (1967). Representative Charles Wiggins stated: "The public act of desecration of our flag
tends to undermine the morale of American troops. That this finding is true can be attested by many
Members who have received correspondence from servicemen expressing their shock and disgust of
such conduct." 113 Cong. Rec. 16459 (1967).
The flag symbolizes the Nation in peace as well as in war. It signifies our national presence on
battleships, airplanes, military installations, and public buildings from the United States Capitol to the
thousands of county courthouses and city halls throughout the country. Two flags are prominently
placed in our courtroom. Countless flags are placed by the graves of loved ones each year on what was
first called [491 U.S. 397, 427] Decoration Day, and is now called Memorial Day. The flag is traditionally
placed on the casket of deceased members of the Armed Forces, and it is later given to the deceased's
family. 10 U.S.C. 1481, 1482. Congress has provided that the flag be flown at half-staff upon the death of
the President, Vice President, and other government officials "as a mark of respect to their memory." 36
U.S.C. 175(m). The flag identifies United States merchant ships, 22 U.S.C. 454, and "[t]he laws of the
Union protect our commerce wherever the flag of the country may float." United States v. Guthrie, 17
How. 284, 309 (1855).
No other American symbol has been as universally honored as the flag. In 1931, Congress declared "The
Star-Spangled Banner" to be our national anthem. 36 U.S.C. 170. In 1949, Congress declared June 14th
to be Flag Day. 157. In 1987, John Philip Sousa's "The Stars and Stripes Forever" was designated as the
national march. Pub. L. 101-186, 101 Stat. 1286. Congress has also established "The Pledge of Allegiance
to the Flag" and the manner of its deliverance. 36 U.S.C. 172. The flag has appeared as the principal
symbol on approximately 33 United States postal stamps and in the design of at least 43 more, more
times than any other symbol. United States Postal Service, Definitive Mint Set 15 (1988).
231
Both Congress and the States have enacted numerous laws regulating misuse of the American flag. Until
1967, Congress left the regulation of misuse of the flag up to the States. Now, however, 18 U.S.C. 700(a)
provides that:
"Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating,
defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or
imprisoned for not more than one year, or both."
Congress has also prescribed, inter alia, detailed rules for the design of the flag, 4 U.S.C. 1, the time and
occasion of flag's display, 36 U.S.C. 174, the position and manner of [491 U.S. 397, 428] its display, 175,
respect for the flag, 176, and conduct during hoisting, lowering, and passing of the flag, 177. With the
exception of Alaska and Wyoming, all of the States now have statutes prohibiting the burning of the flag.
1 Most of the state statutes are patterned after the Uniform Flag Act of 1917, which in 3 provides: "No
person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon
any such flag, standard, color, ensign or shield." Proceedings of National Conference of Commissioners
on Uniform State Laws 323-324 (1917). Most were passed by the States at about the time of World War
I. Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972 Wash. U. L. Q. 193, 197. [491 U.S.
397, 429]
The American flag, then, throughout more than 200 years of our history, has come to be the visible
symbol embodying our Nation. It does not represent the views of any particular political party, and it
does not represent any particular political philosophy. The flag is not simply another "idea" or "point of
view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it
with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs
they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of
48 of the 50 States, which make criminal the public burning of the flag.
More than 80 years ago in Halter v. Nebraska, 205 U.S. 34 (1907), this Court upheld the constitutionality
of a Nebraska statute that forbade the use of representations of the American flag for advertising
purposes upon articles of merchandise. The Court there said:
"For that flag every true American has not simply an appreciation but a deep affection. . . .
Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put
upon it, in the presence of those who revere it, have often been resented and sometimes
punished on the spot." Id., at 41.
Only two Terms ago, in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S.
522 (1987), the Court held that Congress could grant exclusive use of the word "Olympic" to the United
States Olympic Committee. The Court thought that this "restrictio[n] on expressive speech properly
[was] characterized as incidental to the primary congressional purpose of encouraging and rewarding
the USOC's activities." Id., at 536. As the Court stated, "when a word [or symbol] acquires value `as the
result of organization and the expenditure of labor, skill, and money' by an entity, that entity
constitutionally may obtain a limited property right in the word [or symbol]." Id., at 532, quoting
International News Service v. Associated Press, [491 U.S. 397, 430] 248 U.S. 215, 239 (1918). Surely
Congress or the States may recognize a similar interest in the flag.
But the Court insists that the Texas statute prohibiting the public burning of the American flag infringes
on respondent Johnson's freedom of expression. Such freedom, of course, is not absolute. See Schenck
v. United States, 249 U.S. 47 (1919). In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), a unanimous
Court said:
232
"Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is
well understood that the right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the insulting or
`fighting' words - those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace. It has been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and morality."
Id., at 571-572 (footnotes omitted).
The Court upheld Chaplinsky's conviction under a state statute that made it unlawful to "address any
offensive, derisive or annoying word to any person who is lawfully in any street or other public place."
Id., at 569. Chaplinsky had told a local marshal, "`"You are a God damned racketeer" and a "damned
Fascist and the whole government of Rochester are Fascists or agents of Fascists."'" Ibid.
Here it may equally well be said that the public burning of the American flag by Johnson was no essential
part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace.
Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he was [491 U.S.
397, 431] free to burn the flag in private. He could publicly burn other symbols of the Government or
effigies of political leaders. He did lead a march through the streets of Dallas, and conducted a rally in
front of the Dallas City Hall. He engaged in a "die-in" to protest nuclear weapons. He shouted out
various slogans during the march, including: "Reagan, Mondale which will it be? Either one means World
War III"; "Ronald Reagan, killer of the hour, Perfect example of U.S. power"; and "red, white and blue,
we spit on you, you stand for plunder, you will go under." Brief for Respondent 3. For none of these acts
was he arrested or prosecuted; it was only when he proceeded to burn publicly an American flag stolen
from its rightful owner that he violated the Texas statute.
The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases - they
clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of
Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his
country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been
conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so
with flag burning, for purposes of the First Amendment: It is "no essential part of any exposition of
ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it]
is clearly outweighed" by the public interest in avoiding a probable breach of the peace. The highest
courts of several States have upheld state statutes prohibiting the public burning of the flag on the
grounds that it is so inherently inflammatory that it may cause a breach of public order. See, e. g., State
v. Royal, 113 N. H. 224, 229, 305 A. 2d 676, 680 (1973); State v. Waterman, 190 N. W. 2d 809, 811-812
(Iowa 1971); see also State v. Mitchell, 32 Ohio App. 2d 16, 30, 288 N. E. 2d 216, 226 (1972). [491 U.S.
397, 432]
The result of the Texas statute is obviously to deny one in Johnson's frame of mind one of many means
of "symbolic speech." Far from being a case of "one picture being worth a thousand words," flag burning
is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in
not to express any particular idea, but to antagonize others. Only five years ago we said in City Council
of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984), that "the First Amendment does not
guarantee the right to employ every conceivable method of communication at all times and in all
places." The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest - a
233
form of protest that was profoundly offensive to many - and left him with a full panoply of other
symbols and every conceivable form of verbal expression to express his deep disapproval of national
policy. Thus, in no way can it be said that Texas is punishing him because his hearers - or any other
group of people - were profoundly opposed to the message that he sought to convey. Such opposition is
no proper basis for restricting speech or expression under the First Amendment. It was Johnson's use of
this particular symbol, and not the idea that he sought to convey by it or by his many other expressions,
for which he was punished.
Our prior cases dealing with flag desecration statutes have left open the question that the Court
resolves today. In Street v. New York, 394 U.S. 576, 579 (1969), the defendant burned a flag in the
street, shouting "We don't need no damned flag" and "[i]f they let that happen to Meredith we don't
need an American flag." The Court ruled that since the defendant might have been convicted solely on
the basis of his words, the conviction could not stand, but it expressly reserved the question whether a
defendant could constitutionally be convicted for burning the flag. Id., at 581.
Chief Justice Warren, in dissent, stated: "I believe that the States and Federal Government do have the
power to protect the flag from acts of desecration and disgrace. . . . [I]t is difficult [491 U.S. 397, 433]
for me to imagine that, had the Court faced this issue, it would have concluded otherwise." Id., at 605.
Justices Black and Fortas also expressed their personal view that a prohibition on flag burning did not
violate the Constitution. See id., at 610 (Black, J., dissenting) ("It passes my belief that anything in the
Federal Constitution bars a State from making the deliberate burning of the American Flag an offense");
id., at 615-617 (Fortas, J., dissenting) ("[T]he States and the Federal Government have the power to
protect the flag from acts of desecration committed in public. . . . [T]he flag is a special kind of
personality. Its use is traditionally and universally subject to special rules and regulation. . . . A person
may `own' a flag, but ownership is subject to special burdens and responsibilities. A flag may be
property, in a sense; but it is property burdened with peculiar obligations and restrictions. Certainly . . .
these special conditions are not per se arbitrary or beyond governmental power under our
Constitution").
In Spence v. Washington, 418 U.S. 405 (1974), the Court reversed the conviction of a college student
who displayed the flag with a peace symbol affixed to it by means of removable black tape from the
window of his apartment. Unlike the instant case, there was no risk of a breach of the peace, no one
other than the arresting officers saw the flag, and the defendant owned the flag in question. The Court
concluded that the student's conduct was protected under the First Amendment, because "no interest
the State may have in preserving the physical integrity of a privately owned flag was significantly
impaired on these facts." Id., at 415. The Court was careful to note, however, that the defendant "was
not charged under the desecration statute, nor did he permanently disfigure the flag or destroy it." Ibid.
In another related case, Smith v. Goguen, 415 U.S. 566 (1974), the appellee, who wore a small flag on
the seat of his trousers, was convicted under a Massachusetts flag-misuse statute that subjected to
criminal liability anyone who [491 U.S. 397, 434] "publicly . . . treats contemptuously the flag of the
United States." Id., at 568-569. The Court affirmed the lower court's reversal of appellee's conviction,
because the phrase "treats contemptuously" was unconstitutionally broad and vague. Id., at 576. The
Court was again careful to point out that "[c]ertainly nothing prevents a legislature from defining with
substantial specificity what constitutes forbidden treatment of United States flags." Id., at 581-582. See
also id., at 587 (WHITE, J., concurring in judgment) ("The flag is a national property, and the Nation may
regulate those who would make, imitate, sell, possess, or use it. I would not question those statutes
which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its physical
234
integrity, without regard to whether such conduct might provoke violence. . . . There would seem to be
little question about the power of Congress to forbid the mutilation of the Lincoln Memorial. . . . The flag
is itself a monument, subject to similar protection"); id., at 591 (BLACKMUN, J., dissenting) ("Goguen's
punishment was constitutionally permissible for harming the physical integrity of the flag by wearing it
affixed to the seat of his pants").
But the Court today will have none of this. The uniquely deep awe and respect for our flag felt by
virtually all of us are bundled off under the rubric of "designated symbols," ante, at 417, that the First
Amendment prohibits the government from "establishing." But the government has not "established"
this feeling; 200 years of history have done that. The government is simply recognizing as a fact the
profound regard for the American flag created by that history when it enacts statutes prohibiting the
disrespectful public burning of the flag.
The Court concludes its opinion with a regrettably patronizing civics lecture, presumably addressed to
the Members of both Houses of Congress, the members of the 48 state legislatures that enacted
prohibitions against flag burning, and the troops fighting under that flag in Vietnam who objected to its
[491 U.S. 397, 435] being burned: "The way to preserve the flag's special role is not to punish those
who feel differently about these matters. It is to persuade them that they are wrong." Ante, at 419. The
Court's role as the final expositor of the Constitution is well established, but its role as a Platonic
guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no
similar place in our system of government. The cry of "no taxation without representation" animated
those who revolted against the English Crown to found our Nation - the idea that those who submitted
to government should have some say as to what kind of laws would be passed. Surely one of the high
purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly
offensive to the majority of people - whether it be murder, embezzlement, pollution, or flag burning.
Our Constitution wisely places limits on powers of legislative majorities to act, but the declaration of
such limits by this Court "is, at all times, a question of much delicacy, which ought seldom, if ever, to be
decided in the affirmative, in a doubtful case." Fletcher v. Peck, 6 Cranch 87, 128 (1810) (Marshall, C. J.).
Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the
very purpose for which organized governments are instituted. The Court decides that the American flag
is just another symbol, about which not only must opinions pro and con be tolerated, but for which the
most minimal public respect may not be enjoined. The government may conscript men into the Armed
Forces where they must fight and perhaps die for the flag, but the government may not prohibit the
public burning of the banner under which they fight. I would uphold the Texas statute as applied in this
case. 2
[ Footnote 1 ] See Ala. Code 13A-11-12 (1982); Ariz. Rev. Stat. Ann. 13-3703 (1978); Ark. Code Ann. 5-51207 (1987); Cal. Mil. & Vet. Code Ann. 614 (West 1988); Colo. Rev. Stat. 18-11-204 (1986); Conn. Gen.
Stat. 53-258a (1985); Del. Code Ann., Tit. 11, 1331 (1987); Fla. Stat. 256.05-256.051, 876.52 (1987); Ga.
Code Ann. 50-3-9 (1986); Haw. Rev. Stat. 711-1107 (1988); Idaho Code 18-3401 (1987); Ill. Rev. Stat., ch.
1, 3307, 3351 (1980); Ind. Code 35-45-1-4 (1986); Iowa Code 32.1 (1978 and Supp. 1989); Kan. Stat.
Ann. 21-4114 (1988); Ky. Rev. Stat. Ann. 525.110 (Michie Supp. 1988); La. Rev. Stat. Ann. 14:116 (West
1986); Me. Rev. Stat. Ann., Tit. 1, 254 (1979); Md. Ann. Code, Art. 27, 83 (1988); Mass. Gen. Laws 264,
265 (1987); Mich. Comp. Laws 750.246 (1968); Minn. Stat. 609.40 (1987); Miss. Code Ann. 97-7-39
(1973); Mo. Rev. Stat. 578.095 (Supp. 1989); Mont. Code Ann. 45-8-215 (1987); Neb. Rev. Stat. 28-928
(1985); Nev. Rev. Stat. 201.290 (1986); N. H. Rev. Stat. Ann. 646.1 (1986); N. J. Stat. Ann. 2C:33-9 (West
1982); N. M. Stat. Ann. 30-21-4 (1984); N. Y. Gen. Bus. Law 136 (McKinney 1988); N.C. Gen. Stat. 14-381
235
(1986); N. D. Cent. Code 12.1-07-02 (1985); Ohio Rev. Code Ann. 2927.11 (1987); Okla. Stat., Tit. 21, 372
(1983); Ore. Rev. Stat. 166.075 (1987); 18 Pa. Cons. Stat. 2102 (1983); R. I. Gen. Laws 11-15-2 (1981); S.
C. Code 16-17-220, 16-17-230 (1985 and Supp. 1988); S. D. Codified Laws 22-9-1 (1988); Tenn. Code
Ann. 39-5-843, 39-5-847 (1982); Tex. Penal Code Ann. 42.09 (1974); Utah Code Ann. 76-9-601 (1978); Vt.
Stat. Ann., Tit. 13, 1903 (1974); Va. Code 18.2-488 (1988); Wash. Rev. Code 9.86.030 (1988); W. Va.
Code 61-1-8 (1989); Wis. Stat. 946.05 (1985-1986).
[ Footnote 2 ] In holding that the Texas statute as applied to Johnson violates the First Amendment, the
Court does not consider Johnson's claims that the statute is unconstitutionally vague or overbroad. Brief
for Respondent 24-30. I think those claims are without merit. In New York State Club Assn. v. City of New
York, 487 U.S. 1, 11 (1988), we stated that a facial [491 U.S. 397, 436] challenge is only proper under
the First Amendment when a statute can never be applied in a permissible manner or when, even if it
may be validly applied to a particular defendant, it is so broad as to reach the protected speech of third
parties. While Tex. Penal Code Ann. 42.09 (1989) "may not satisfy those intent on finding fault at any
cost, [it is] set out in terms that the ordinary person exercising ordinary common sense can sufficiently
understand and comply with." CSC v. Letter Carriers, 413 U.S. 548, 579 (1973). By defining "desecrate"
as "deface," "damage" or otherwise "physically mistreat" in a manner that the actor knows will
"seriously offend" others, 42.09 only prohibits flagrant acts of physical abuse and destruction of the flag
of the sort at issue here - soaking a flag with lighter fluid and igniting it in public - and not any of the
examples of improper flag etiquette cited in respondent's brief. [491 U.S. 397, 436]
JUSTICE STEVENS, dissenting.
As the Court analyzes this case, it presents the question whether the State of Texas, or indeed the
Federal Government, has the power to prohibit the public desecration of the American flag. The
question is unique. In my judgment rules that apply to a host of other symbols, such as state flags,
armbands, or various privately promoted emblems of political or commercial identity, are not
necessarily controlling. Even if flag burning could be considered just another species of symbolic speech
under the logical application of the rules that the Court has developed in its interpretation of the First
Amendment in other contexts, this case has an intangible dimension that makes those rules
inapplicable.
A country's flag is a symbol of more than "nationhood and national unity." Ante, at 407, 410, 413, and n.
9, 417, 420. It also signifies the ideas that characterize the society that has chosen that emblem as well
as the special history that has animated the growth and power of those ideas. The fleurs-de-lis and the
tricolor both symbolized "nationhood and national unity," but they had vastly different meanings. The
message conveyed by some flags - the swastika, for example - may survive long after it has outlived its
usefulness as a symbol of regimented unity in a particular nation. [491 U.S. 397, 437]
So it is with the American flag. It is more than a proud symbol of the courage, the determination, and
the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom,
of equal opportunity, of religious tolerance, and of good will for other peoples who share our
aspirations. The symbol carries its message to dissidents both at home and abroad who may have no
interest at all in our national unity or survival.
The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in
preserving that value for the future is both significant and legitimate. Conceivably that value will be
enhanced by the Court's conclusion that our national commitment to free expression is so strong that
236
even the United States as ultimate guarantor of that freedom is without power to prohibit the
desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post bulletin
boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a
cost I would not pay. Similarly, in my considered judgment, sanctioning the public desecration of the flag
will tarnish its value - both for those who cherish the ideas for which it waves and for those who desire
to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free
expression occasioned by requiring that an available, alternative mode of expression - including uttering
words critical of the flag, see Street v. New York, 394 U.S. 576 (1969) - be employed.
It is appropriate to emphasize certain propositions that are not implicated by this case. The statutory
prohibition of flag desecration does not "prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West
Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943). The statute does not compel any
conduct or any profession of respect for any idea or any symbol. [491 U.S. 397, 438]
Nor does the statute violate "the government's paramount obligation of neutrality in its regulation of
protected communication." Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality
opinion). The content of respondent's message has no relevance whatsoever to the case. The concept of
"desecration" does not turn on the substance of the message the actor intends to convey, but rather on
whether those who view the act will take serious offense. Accordingly, one intending to convey a
message of respect for the flag by burning it in a public square might nonetheless be guilty of
desecration if he knows that others - perhaps simply because they misperceive the intended message will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand
that he intends to send a message of respect, he might still be guilty of desecration if he also knows that
this understanding does not lessen the offense taken by some of those witnesses. Thus, this is not a case
in which the fact that "it is the speaker's opinion that gives offense" provides a special "reason for
according it constitutional protection," FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) (plurality
opinion). The case has nothing to do with "disagreeable ideas," see ante, at 409. It involves disagreeable
conduct that, in my opinion, diminishes the value of an important national asset.
The Court is therefore quite wrong in blandly asserting that respondent "was prosecuted for his
expression of dissatisfaction with the policies of this country, expression situated at the core of our First
Amendment values." Ante, at 411. Respondent was prosecuted because of the method he chose to
express his dissatisfaction with those policies. Had he chosen to spray-paint - or perhaps convey with a
motion picture projector - his message of dissatisfaction on the facade of the Lincoln Memorial, there
would be no question about the power of the Government to prohibit his means of expression. The
prohibition would be supported by the legitimate interest in preserving the quality of an important [491
U.S. 397, 439] national asset. Though the asset at stake in this case is intangible, given its unique value,
the same interest supports a prohibition on the desecration of the American flag. *
The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry,
Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the
Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those
ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag
that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.
I respectfully dissent.
237
[ Footnote * ] The Court suggests that a prohibition against flag desecration is not content neutral
because this form of symbolic speech is only used by persons who are critical of the flag or the ideas it
represents. In making this suggestion the Court does not pause to consider the far-reaching
consequences of its introduction of disparate-impact analysis into our First Amendment jurisprudence. It
seems obvious that a prohibition against the desecration of a gravesite is content neutral even if it
denies some protesters the right to make a symbolic statement by extinguishing the flame in Arlington
Cemetery where John F. Kennedy is buried while permitting others to salute the flame by bowing their
heads. Few would doubt that a protester who extinguishes the flame has desecrated the gravesite,
regardless of whether he prefaces that act with a speech explaining that his purpose is to express deep
admiration or unmitigated scorn for the late President. Likewise, few would claim that the protester
who bows his head has desecrated the gravesite, even if he makes clear that his purpose is to show
disrespect. In such a case, as in a flag burning case, the prohibition against desecration has absolutely
nothing to do with the content of the message that the symbolic speech is intended to convey. [491 U.S.
397, 440]
238
U.S. Supreme Court
UNITED STATES v. EICHMAN, 496 U.S. 310 (1990)
496 U.S. 310
UNITED STATES v. EICHMAN ET AL.
APPEAL FROM THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 89-1433.
Argued May 14, 1990
Decided June 11, 1990*
After this Court held, in Texas v. Johnson, 491 U.S. 397, that a Texas statute criminalizing desecration of
the United States flag in a way that the actor knew would seriously offend onlookers was
unconstitutional as applied to an individual who had burned a flag during a political protest, Congress
passed the Flag Protection Act of 1989. The Act criminalizes the conduct of anyone who "knowingly
mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a
United States flag, except conduct related to the disposal of a "worn or soiled" flag. Subsequently,
appellees were prosecuted in the District Courts for violating the Act: some for knowingly burning
several flags while protesting various aspects of the Government's policies, and others, in a separate
incident, for knowingly burning a flag while protesting the Act's passage. In each case, appellees moved
to dismiss the charges on the ground that the Act violates the First Amendment. Both District Courts,
following Johnson, supra, held the Act unconstitutional as applied and dismissed the charges.
Held:
Appellees' prosecution for burning a flag in violation of the Act is inconsistent with the First
Amendment. The Government concedes, as it must, that appellees' flag burning constituted expressive
conduct, and this Court declines to reconsider its rejection in Johnson of the claim that flag burning as a
mode of expression does not enjoy the First Amendment's full protection. It is true that this Act, unlike
the Texas law, contains no explicit content-based limitation on the scope of prohibited conduct.
Nevertheless, it is clear that the Government's asserted interest in protecting the "physical integrity" of
a privately owned flag in order to preserve the flag's status as a symbol of the Nation and certain
national ideals is related to the suppression, and concerned with the content, of free expression. The
mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise
affect the symbol itself. The Government's interest is implicated only when a person's treatment of the
flag communicates a message to others that is inconsistent with the identified ideals. The precise
language of the Act's [496 U.S. 310, 311] prohibitions confirms Congress' interest in the communicative
impact of flag destruction, since each of the specified terms - with the possible exception of "burns" unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to
damage the flag's symbolic value, and since the explicit exemption for disposal of "worn or soiled" flags
protects certain acts traditionally associated with patriotic respect for the flag. Thus, the Act suffers
239
from the same fundamental flaw as the Texas law, and its restriction on expression cannot "`be justified
without reference to the content of the regulated speech,'" Boos v. Barry, 485 U.S. 312, 320. It must
therefore be subjected to "the most exacting scrutiny," id., at 321, and, for the reasons stated in
Johnson, supra, at 413-415, the Government's interest cannot justify its infringement on First
Amendment rights. This conclusion will not be reassessed in light of Congress' recent recognition of a
purported "national consensus" favoring a prohibition on flag burning, since any suggestion that the
Government's interest in suppressing speech becomes more weighty as popular opposition to that
speech grows is foreign to the First Amendment. While flag desecration - like virulent ethnic and
religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to
many, the Government may not prohibit the expression of an idea simply because society finds the idea
itself offensive or disagreeable. Pp. 313-319.
No. 89-1433, 731 F. Supp. 1123; No. 89-1434, 731 F. Supp. 415, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and
KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and WHITE and
O'CONNOR, JJ., joined, post, p. 319.
[Footnote *] Together with No. 89-1434, United States v. Haggerty et al., on appeal from the District
Court for the Western District of Washington.
Solicitor General Starr argued the cause for the United States. With him on the briefs were Assistant
Attorney General Dennis, Deputy Solicitor General Roberts, and Michael R. Lazerwitz.
William M. Kunstler argued the cause for appellees in both cases. With him on the brief in both cases
were Ronald L. Kuby, David D. Cole, Nina Kraut, and Kevin Peck. Charles S. Hamilton III, by appointment
of the Court, 495 U.S. 902, filed a brief in No. 89-1434 for appellee Strong.Fn
Fn [496 U.S. 310, 311] Briefs of amici curiae urging reversal were filed for the United States Senate by
Michael Davidson, Ken U. Benjamin, Jr., and Morgan J. Frankel; for Senator Joseph R. Biden, Jr., by
Kenneth S. Geller, Andrew J. Pincus, and Roy T. Englert, Jr.; [496 U.S. 310, 312] for Governor Mario M.
Cuomo by Evan A. Davis; and for the Southeastern Legal Foundation, Inc., by Robert L. Barr, Jr., and G.
Stephen Parker.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Charles
Fried, Kathleen M. Sullivan. Norman Dorsen, and Steven R. Shapiro; for the Association of Art Museum
Directors et al. by James C. Goodale; for the National Association for the Advancement of Colored
People by Charles E. Carter; for People for the American Way et al. by Timothy B. Dyk, Glen D. Nager,
and Elliot M. Mincberg; and for Jasper Johns et al. by Robert G. Sugarman and Gloria C. Phares.
Briefs of amici curiae were filed for the Speaker and Leadership Group of the United States House of
Representatives by Steven R. Ross, Charles Tiefer, Michael L. Murray, Janina Jaruzelski, and Robert
Michael Long; and for the American Bar Association by Stanley Chauvin, Jr., Randolph W. Thrower, and
Robert B. McKay. [496 U.S. 310, 312]
JUSTICE BRENNAN delivered the opinion of the Court.
240
In these consolidated appeals, we consider whether appellees' prosecution for burning a United States
flag in violation of the Flag Protection Act of 1989 is consistent with the First Amendment. Applying our
recent decision in Texas v. Johnson, 491 U.S. 397 (1989), the District Courts held that the Act cannot
constitutionally be applied to appellees. We affirm.
I
In No. 89-1433, the United States prosecuted certain appellees for violating the Flag Protection Act of
1989, 103 Stat. 777, 18 U.S.C. 700 (1988 ed. and Supp. I), by knowingly setting fire to several United
States flags on the steps of the United States Capitol while protesting various aspects of the
Government's domestic and foreign policy. In No. 89-1434, the United States prosecuted other
appellees for violating the Act by knowingly setting fire to a United States flag in Seattle while protesting
the Act's passage. In each case, the respective appellees moved to dismiss the flag-burning charge on
the ground that the Act, both on its face and as applied, violates the First Amendment. Both the [496
U.S. 310, 313] United States District Court for the Western District of Washington, 731 F. Supp. 415
(1990), and the United States District Court for the District of Columbia, 731 F. Supp. 1123 (1990),
following Johnson, supra, held the Act unconstitutional as applied to appellees and dismissed the
charges.1 The United States appealed both decisions directly to this Court pursuant to 18 U.S.C. 700(d)
(1982 ed., Supp. I).2 We noted probable jurisdiction and consolidated the two cases. 494 U.S. 1063
(1990).
II
Last Term in Johnson, we held that a Texas statute criminalizing the desecration of venerated objects,
including the United States flag, was unconstitutional as applied to an individual who had set such a flag
on fire during a political demonstration. The Texas statute provided that "[a] person commits an offense
if he intentionally or knowingly desecrates . . . [a] national flag," where "desecrate" meant to "deface,
damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or
more persons likely to observe or discover his action." Tex. Penal Code Ann. 42.09 (1989). We first held
that Johnson's flag burning was "conduct `sufficiently imbued with elements of communication' to
implicate the First Amendment." 491 U.S., at 406 (citation omitted). We next considered and rejected
the State's contention that, under United States v. O'Brien, [496 U.S. 310, 314] 391 U.S. 367 (1968), we
ought to apply the deferential standard with which we have reviewed Government regulations of
conduct containing both speech and nonspeech elements where "the governmental interest is
unrelated to the suppression of free expression." Id., at 377. We reasoned that the State's asserted
interest "in preserving the flag as a symbol of nationhood and national unity," was an interest "related
`to the suppression of free expression' within the meaning of O'Brien" because the State's concern with
protecting the flag's symbolic meaning is implicated "only when a person's treatment of the flag
communicates some message." Johnson, supra, at 410. We therefore subjected the statute to "the most
exacting scrutiny,'" 491 U.S., at 412, quoting Boos v. Barry, 485 U.S. 312, 321 (1988), and we concluded
that the State's asserted interests could not justify the infringement on the demonstrator's First
Amendment rights.
After our decision in Johnson, Congress passed the Flag Protection Act of 1989.3 The Act provides in
relevant part:
241
"(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or
ground, or tramples upon any flag of the United States shall be fined under this title or
imprisoned for not more than one year, or both.
"(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has
become worn or soiled.
"(b) As used in this section, the term `flag of the United States' means any flag of the United
States, or any part thereof, made of any substance, of any size, in a form that is commonly
displayed." 18 U.S.C. 700 (1988 ed., Supp. I). [496 U.S. 310, 315]
The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive
conduct, Brief for United States 28; see Johnson, 491 U.S., at 405-406, but invites us to reconsider our
rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or "fighting
words," does not enjoy the full protection of the First Amendment. Cf. Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942). This we decline to do.4 The only remaining question is whether the Flag
Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to
proscribe appellees' expressive conduct.
The Government contends that the Flag Protection Act is constitutional because, unlike the statute
addressed in Johnson, the Act does not target expressive conduct on the basis of the content of its
message. The Government asserts an interest in "protect[ing] the physical integrity of the flag under all
circumstances" in order to safeguard the flag's identity "`as the unique and unalloyed symbol of the
Nation.'" Brief for United States 28, 29. The Act proscribes conduct (other than disposal) that damages
or mistreats a flag, without regard to the actor's motive, his intended message, or the likely effects of his
conduct on onlookers. By contrast, the Texas statute expressly prohibited only those acts of physical flag
desecration "that the actor knows will seriously offend" onlookers, and the former federal statute
prohibited only those acts of desecration that "cas[t] contempt upon" the flag.
Although the Flag Protection Act contains no explicit content-based limitation on the scope of
prohibited conduct, it is nevertheless clear that the Government's asserted interest is "related `to the
suppression of free expression,'" 491 U.S., at 410, and concerned with the content of such expression.
The Government's interest in protecting the "physical integrity" [496 U.S. 310, 316] of a privately owned
flag5 rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain
national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the
symbol, without more, does not diminish or otherwise affect the symbol itself in any way. For example,
the secret destruction of a flag in one's own basement would not threaten the flag's recognized
meaning. Rather, the Government's desire to preserve the flag as a symbol for certain national ideals is
implicated "only when a person's treatment of the flag communicates [a] message" to others that is
inconsistent with those ideals.6 Ibid. [496 U.S. 310, 317]
Moreover, the precise language of the Act's prohibitions confirms Congress' interest in the
communicative impact of flag destruction. The Act criminalizes the conduct of anyone who "knowingly
mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any
flag." 18 U.S.C. 700(a)(1) (1988 ed., Supp. I). Each of the specified terms - with the possible exception of
"burns" - unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts
likely to damage the flag's symbolic value.7 And the explicit exemption in 700(a)(2) for disposal of "worn
or soiled" flags protects certain acts traditionally associated with patriotic respect for the flag.8
As we explained in Johnson, supra, at 416-417: "[I]f we were to hold that a State may forbid flag burning
wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes
242
that role - as where, for example, a person ceremoniously burns a dirty flag - we would be . . . permitting
a State to `prescribe what shall be orthodox' by saying that one may burn the flag to convey one's
attitude toward it and its referents only if one does not endanger the flag's representation of
nationhood and national unity." Although Congress cast the Flag Protection Act of 1989 in somewhat
broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same
fundamental flaw: It suppresses expression out of concern for its likely communicative impact. Despite
the Act's wider scope, [496 U.S. 310, 318] its restriction on expression cannot be "`justified without
reference to the content of the regulated speech.'" Boos, 485 U.S., at 320 (emphasis omitted) (citation
omitted); see Spence v. Washington, 418 U.S. 405, 414, nn. 8, 9 (1974) (State's interest in protecting
flag's symbolic value is directly related to suppression of expression and thus O'Brien test is inapplicable
even where statute declared "simply . . . that nothing may be affixed to or superimposed on a United
States flag"). The Act therefore must be subjected to "the most exacting scrutiny," Boos, supra, at 321,
and for the reasons stated in Johnson, 491 U.S., at 413-415, the Government's interest cannot justify its
infringement on First Amendment rights. We decline the Government's invitation to reassess this
conclusion in light of Congress' recent recognition of a purported "national consensus" favoring a
prohibition on flag burning. Brief for United States 27. Even assuming such a consensus exists, any
suggestion that the Government's interest in suppressing speech becomes more weighty as popular
opposition to that speech grows is foreign to the First Amendment.
III
"`National unity as an end which officials may foster by persuasion and example is not in
question.'" Johnson, supra, at 418, quoting West Virginia Board of Education v. Barnette, 319
U.S. 624, 640 (1943). Government may create national symbols, promote them, and encourage
their respectful treatment.9 But the Flag Protection Act of 1989 goes well beyond this by
criminally proscribing expressive conduct because of its likely communicative impact.
We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for
example, of virulent ethnic and religious epithets, see Terminiello v. Chicago, 337 U.S. 1 (1949), vulgar
repudiations of the draft, see [496 U.S. 310, 319] Cohen v. California, 403 U.S. 15 (1971), and scurrilous
caricatures, see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). "If there is a bedrock principle
underlying the First Amendment, it is that the Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable." Johnson, supra, at 414. Punishing
desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.
The judgments of the District Courts are
Affirmed.
Footnotes
[Footnote 1] The Seattle appellees were also charged with causing willful injury to federal property in
violation of 18 U.S.C. 1361 and 1362. This charge remains pending before the District Court, and nothing
in today's decision affects the constitutionality of this prosecution. See n. 5, infra.
[Footnote 2] "(1) An appeal may be taken directly to the Supreme Court of the United States from any
interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the
constitutionality of subsection (a).
243
"(2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction
over the appeal and advance on the docket and expedite to the greatest extent possible." 18
U.S.C. 700(d) (1988 ed., Supp. I).
[Footnote 3] The Act replaced the then-existing federal flag-burning statute, which Congress perceived
might be unconstitutional in light of Johnson. Former 18 U.S.C. 700(a) prohibited "knowingly cast[ing]
contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or
trampling upon it."
[Footnote 4] We deal here with concededly political speech and have no occasion to pass on the validity
of laws regulating commercial exploitation of the image of the United States flag. See Texas v. Johnson,
491 U.S. 397, 415-416, n. 10 (1989); cf. Halter v. Nebraska, 205 U.S. 34 (1907).
[Footnote 5] Today's decision does not affect the extent to which the Government's interest in
protecting publicly owned flags might justify special measures on their behalf. See Spence v.
Washington, 418 U.S. 405, 408-409 (1974): cf. Johnson, supra, at 412-413, n. 8.
[Footnote 6] Aside from the flag's association with particular ideals, at some irreducible level the flag is
emblematic of the Nation as a sovereign entity. The Government's amici assert that it has a legitimate
nonspeech-related interest in safeguarding this "eminently practical legal aspect of the flag, as an
incident of sovereignty." Brief for the Speaker and Leadership Group of the U.S. House of
Representatives as Amici Curiae 25. This interest has firm historical roots: "While the symbolic role of
the flag is now well-established, the flag was an important incident of sovereignty before it was used for
symbolic purposes by patriots and others. When the nation's founders first determined to adopt a
national flag, they intended to serve specific functions relating to our status as a sovereign nation." Id.,
at 9: see id., at 5 (noting "flag's `historic function' for such sovereign purposes as marking `our national
presence in schools, public buildings, battleships and airplanes'") (citation omitted).
We concede that the Government has a legitimate interest in preserving the flag's function as an
"incident of sovereignty," though we need not address today the extent to which this interest may
justify any laws regulating conduct that would thwart this core function, as might a commercial or like
appropriation of the image of the United States flag. Amici do not, and cannot, explain how a statute
that penalizes anyone who knowingly burns, mutilates, or defiles any American flag is designed to
advance this asserted interest in maintaining the association between the flag and the Nation. Burning a
flag does not threaten to [496 U.S. 310, 317] interfere with this association in any way; indeed, the flag
burner's message depends in part on the viewer's ability to make this very association.
[Footnote 7] For example, "defile" is defined as "to make filthy; to corrupt the purity or perfection of; to
rob of chastity; to make ceremonially unclean; tarnish, dishonor." Webster's Third New International
Dictionary 592 (1976). "Trample" is defined as "to tread heavily so as to bruise, crush, or injure; to inflict
injury or destruction: have a contemptuous or ruthless attitude." Id., at 2425.
[Footnote 8] The Act also does not prohibit flying a flag in a storm or other conduct that threatens the
physical integrity of the flag, albeit in an indirect manner unlikely to communicate disrespect.
[Footnote 9] See, e. g., 36 U.S.C. 173-177 (suggesting manner in which flag ought to be displayed).
244
JUSTICE STEVENS, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join,
dissenting.
The Court's opinion ends where proper analysis of the issue should begin. Of course "the Government
may not prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable." Ante this page. None of us disagrees with that proposition. But it is equally well settled
that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate
societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the
prohibition does not entail any interference with the speaker's freedom to express those ideas by other
means; and (c) the interest in allowing the speaker complete freedom of choice among alternative
methods of expression is less important than the societal interest supporting the prohibition.
Contrary to the position taken by counsel for the flag burners in Texas v. Johnson, 491 U.S. 397 (1989), it
is now conceded that the Federal Government has a legitimate interest in protecting the symbolic value
of the American flag. Obviously that value cannot be measured, or even described, with any precision. It
has at least these two components: In times of national crisis, it inspires and motivates the average
citizen to make personal sacrifices in order to achieve societal goals of overriding importance; at all
times, it serves as a reminder [496 U.S. 310, 320] of the paramount importance of pursuing the ideals
that characterize our society.
The first question the Court should consider is whether the interest in preserving the value of that
symbol is unrelated to suppression of the ideas that flag burners are trying to express. In my judgment
the answer depends, at least in part, on what those ideas are. A flag burner might intend various
messages. The flag burner may wish simply to convey hatred, contempt, or sheer opposition directed at
the United States. This might be the case if the flag were burned by an enemy during time of war. A flag
burner may also, or instead, seek to convey the depth of his personal conviction about some issue, by
willingly provoking the use of force against himself. In so doing, he says that "my disagreement with
certain policies is so strong that I am prepared to risk physical harm (and perhaps imprisonment) in
order to call attention to my views." This second possibility apparently describes the expressive conduct
of the flag burners in these cases. Like the protesters who dramatized their opposition to our
engagement in Vietnam by publicly burning their draft cards - and who were punished for doing so their expressive conduct is consistent with affection for this country and respect for the ideals that the
flag symbolizes. There is at least one further possibility: A flag burner may intend to make an accusation
against the integrity of the American people who disagree with him. By burning the embodiment of
America's collective commitment to freedom and equality, the flag burner charges that the majority has
forsaken that commitment - that continued respect for the flag is nothing more than hypocrisy. Such a
charge may be made even if the flag burner loves the country and zealously pursues the ideals that the
country claims to honor.
The idea expressed by a particular act of flag burning is necessarily dependent on the temporal and
political context in which it occurs. In the 1960's it may have expressed opposition to the country's
Vietnam policies, or at least to the [496 U.S. 310, 321] compulsory draft. In Texas v. Johnson, it
apparently expressed opposition to the platform of the Republican Party. In these cases, the appellees
have explained that it expressed their opposition to racial discrimination, to the failure to care for the
homeless, and of course to statutory prohibitions of flag burning. In any of these examples, the
protesters may wish both to say that their own position is the only one faithful to liberty and equality,
and to accuse their fellow citizens of hypocritical indifference to - or even of a selfish departure from 245
the ideals which the flag is supposed to symbolize. The ideas expressed by flag burners are thus various
and often ambiguous.
The Government's legitimate interest in preserving the symbolic value of the flag is, however, essentially
the same regardless of which of many different ideas may have motivated a particular act of flag
burning. As I explained in my dissent in Johnson, 491 U.S., at 436-439, the flag uniquely symbolizes the
ideas of liberty, equality, and tolerance - ideas that Americans have passionately defended and debated
throughout our history. The flag embodies the spirit of our national commitment to those ideals. The
message thereby transmitted does not take a stand upon our disagreements, except to say that those
disagreements are best regarded as competing interpretations of shared ideals. It does not judge
particular policies, except to say that they command respect when they are enlightened by the spirit of
liberty and equality. To the world, the flag is our promise that we will continue to strive for these ideals.
To us, the flag is a reminder both that the struggle for liberty and equality is unceasing, and that our
obligation of tolerance and respect for all of our fellow citizens encompasses those who disagree with us
- indeed, even those whose ideas are disagreeable or offensive.
Thus, the Government may - indeed, it should - protect the symbolic value of the flag without regard to
the specific content of the flag burners' speech. The prosecution in these [496 U.S. 310, 322] cases does
not depend upon the object of the defendants' protest. It is, moreover, equally clear that the prohibition
does not entail any interference with the speaker's freedom to express his or her ideas by other means.
It may well be true that other means of expression may be less effective in drawing attention to those
ideas, but that is not itself a sufficient reason for immunizing flag burning. Presumably a gigantic
fireworks display or a parade of nude models in a public park might draw even more attention to a
controversial message, but such methods of expression are nevertheless subject to regulation.
These cases therefore come down to a question of judgment. Does the admittedly important interest in
allowing every speaker to choose the method of expressing his or her ideas that he or she deems most
effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag?
This question, in turn, involves three different judgments: (1) The importance of the individual interest
in selecting the preferred means of communication; (2) the importance of the national symbol; and (3)
the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas
v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.
The individual interest is unquestionably a matter of great importance. Indeed, it is one of the critical
components of the idea of liberty that the flag itself is intended to symbolize. Moreover, it is buttressed
by the societal interest in being alerted to the need for thoughtful response to voices that might
otherwise go unheard. The freedom of expression protected by the First Amendment embraces not only
the freedom to communicate particular ideas, but also the right to communicate them effectively. That
right, however, is not absolute - the communicative value of a well-placed bomb in the Capitol does not
entitle it to the protection of the First Amendment. [496 U.S. 310, 323]
Burning a flag is not, of course, equivalent to burning a public building. Assuming that the protester is
burning his own flag, it causes no physical harm to other persons or to their property. The impact is
purely symbolic, and it is apparent that some thoughtful persons believe that impact, far from
depreciating the value of the symbol, will actually enhance its meaning. I most respectfully disagree.
Indeed, what makes these cases particularly difficult for me is what I regard as the damage to the
symbol that has already occurred as a result of this Court's decision to place its stamp of approval on the
act of flag burning. A formerly dramatic expression of protest is now rather commonplace. In today's
246
marketplace of ideas, the public burning of a Vietnam draft card is probably less provocative than
lighting a cigarette. Tomorrow flag burning may produce a similar reaction. There is surely a direct
relationship between the communicative value of the act of flag burning and the symbolic value of the
object being burned.
The symbolic value of the American flag is not the same today as it was yesterday. Events during the last
three decades have altered the country's image in the eyes of numerous Americans, and some now have
difficulty understanding the message that the flag conveyed to their parents and grandparents whether born abroad and naturalized or native born. Moreover, the integrity of the symbol has been
compromised by those leaders who seem to advocate compulsory worship of the flag even by
individuals whom it offends, or who seem to manipulate the symbol of national purpose into a pretext
for partisan disputes about meaner ends. And, as I have suggested, the residual value of the symbol
after this Court's decision in Texas v. Johnson is surely not the same as it was a year ago.
Given all these considerations, plus the fact that the Court today is really doing nothing more than
reconfirming what it has already decided, it might be appropriate to defer to the judgment of the
majority and merely apply the doctrine of [496 U.S. 310, 324] stare decisis to the cases at hand. That
action, however, would not honestly reflect my considered judgment concerning the relative
importance of the conflicting interests that are at stake. I remain persuaded that the considerations
identified in my opinion in Texas v. Johnson are of controlling importance in these cases as well.
Accordingly, I respectfully dissent. [496 U.S. 310, 325]
247
505 U.S. 377
112 S.Ct. 2538
120 L.Ed.2d 305
R.A.V., Petitioner,
v.
CITY OF ST. PAUL, MINNESOTA.
No. 90-7675.
Argued Dec. 4, 1991.
Decided June 22, 1992.
Syllabus *
After allegedly burning a cross on a black family's lawn, petitioner R.A.V. was charged under, inter alia,
the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which
one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender." The trial court dismissed this charge on the ground that the ordinance
was substantially overbroad and impermissibly content-based, but the State Supreme Court reversed. It
rejected the overbreadth claim because the phrase "arouses anger, alarm or resentment in others" had
been construed in earlier state cases to limit the ordinance's reach to "fighting words" within the
meaning of this Court's decision in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86
L.Ed. 1031 a category of expression unprotected by the First Amendment. The court also concluded that
the ordinance was not impermissibly content-based because it was narrowly tailored to serve a
compelling governmental interest in protecting the community against bias-motivated threats to public
safety and order.
Held: The ordinance is facially invalid under the First Amendment. Pp. 381-396.
(a) This Court is bound by the state court's construction of the ordinance as reaching only expressions
constituting "fighting words." However, R.A.V.'s request that the scope of the Chaplinsky formulation be
248
modified, thereby invalidating the ordinance as substantially overbroad, need not be reached, since the
ordinance unconstitutionally prohibits speech on the basis of the subjects the speech addresses. P. 381.
(b) A few limited categories of speech, such as obscenity, defamation, and fighting words, may be
regulated because of their constitutionally proscribable content. However, these categories are not
entirely invisible to the Constitution, and government may not regulate them based on hostility, or
favoritism, towards a nonproscribable message they contain. Thus the regulation of "fighting words"
may not be based on nonproscribable content. It may, however, be underinclusive, addressing some
offensive instances and leaving other, equally offensive, ones alone, so long as the selective prescription
is not based on content, or there is no realistic possibility that regulation of ideas is afoot. Pp. 382-390.
(c) The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional
because it imposes special prohibitions on those speakers who express views on the disfavored subjects
of "race, color, creed, religion or gender." At the same time, it permits displays containing abusive
invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance
goes beyond mere content, to actual viewpoint, discrimination. Displays containing "fighting words" that
do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor
of racial, color, etc. tolerance and equality, but not by their opponents. St. Paul's desire to communicate
to minority groups that it does not condone the "group hatred" of bias-motivated speech does not
justify selectively silencing speech on the basis of its content. Pp. 391-393.
(d) The content-based discrimination reflected in the ordinance does not rest upon the very reasons why
the particular class of speech at issue is proscribable, it is not aimed only at the "secondary effects" of
speech within the meaning of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d
29, and it is not for any other reason the sort that does not threaten censorship of ideas. In addition, the
ordinance's content discrimination is not justified on the ground that the ordinance is narrowly tailored
to serve a compelling state interest in ensuring the basic human rights of groups historically
discriminated against, since an ordinance not limited to the favored topics would have precisely the
same beneficial effect. Pp. 393-396.
464 N.W.2d 507 (Minn.1991), reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and KENNEDY, SOUTER, and
THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN and
O'CONNOR, JJ., joined, and in which STEVENS, J., joined except as to Part I-A. BLACKMUN, J., filed an
249
opinion concurring in the judgment. STEVENS, J., filed an opinion concurring in the judgment, in Part I of
which WHITE and BLACKMUN, JJ., joined.
Justice SCALIA delivered the opinion of the Court.
In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a
crudely-made cross by taping together broken chair legs. They then allegedly burned the cross inside the
fenced yard of a black family that lived across the street from the house where petitioner was staying.
Although this conduct could have been punished under any of a number of laws,1 one of the two
provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the
St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn.Legis.Code § 292.02 (1990), which provides:
"Whoever places on public or private property a symbol, object, appellation, characterization or graffiti,
including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion
or gender commits disorderly conduct and shall be guilty of a misdemeanor."
Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially
overbroad and impermissibly content-based and therefore facially invalid under the First Amendment.2
The trial court granted this motion, but the Minnesota Supreme Court reversed. That court rejected
petitioner's overbreadth claim because, as construed in prior Minnesota cases, see, e.g., In re Welfare of
S.L.J., 263 N.W.2d 412 (Minn.1978), the modifying phrase "arouses anger, alarm or resentment in
others" limited the reach of the ordinance to conduct that amounts to "fighting words," i.e., "conduct
that itself inflicts injury or tends to incite immediate violence . . .," In re Welfare of R.A.V., 464 N.W.2d
507, 510 (Minn.1991) (citing Chapli- nsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86
L.Ed. 1031 (1942)), and therefore the ordinance reached only expression "that the first amendment does
not protect." 464 N.W.2d, at 511. The court also concluded that the ordinance was not impermissibly
content-based because, in its view, "the ordinance is a narrowly tailored means toward accomplishing
the compelling governmental interest in protecting the community against bias-motivated threats to
public safety and order." Ibid. We granted certiorari, 501 U.S. ----, 111 S.Ct. 2795, 115 L.Ed.2d 969
(1991).
250
* In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota
court. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 339, 106 S.Ct. 2968,
2975-2976, 92 L.Ed.2d 266 (1986); New York v. Ferber, 458 U.S. 747, 769, n. 24, 102 S.Ct. 3348, 3361, n.
24, 73 L.Ed.2d 1113 (1982); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131
(1949). Accordingly, we accept the Minnesota Supreme Court's authoritative statement that the
ordinance reaches only those expressions that constitute "fighting words" within the meaning of
Chaplinsky. 464 N.W.2d, at 510-511. Petitioner and his amici urge us to modify the scope of the
Chaplinsky formulation, thereby invalidating the ordinance as "substantially overbroad," Broadrick v.
Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914-2915, 37 L.Ed.2d 830 (1973). We find it unnecessary to
consider this issue. Assuming, arguendo, that all of the expression reached by the ordinance is
proscribable under the "fighting words" doctrine, we nonetheless conclude that the ordinance is facially
unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the
speech addresses.3
The First Amendment generally prevents government from proscribing speech, see, e.g., Cantwell v.
Connecticut, 310 U.S. 296, 309-311, 60 S.Ct. 900, 905-906, 84 L.Ed. 1213 (1940), or even expressive
conduct, see, e.g., Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 2540, 105 L.Ed.2d 342 (1989),
because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. ----, ---- - ----, 112 S.Ct. 501, --- - ----, 116 L.Ed.2d 476 (1991) id., at ---- - ----, 112 S.Ct., at ---- - ---- (KENNEDY, J., concurring in
judgment); Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 536, 100 S.Ct.
2326, 2332-2333, 65 L.Ed.2d 319 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct.
2286, 2289-2290, 33 L.Ed.2d 212 (1972). From 1791 to the present, however, our society, like other free
but civilized societies, has permitted restrictions upon the content of speech in a few limited areas,
which are "of such slight social value as a step to truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and morality." Chaplinsky, supra, 315 U.S., at 572, 62
S.Ct. at 762. We have recognized that "the freedom of speech" referred to by the First Amendment does
not include a freedom to disregard these traditional limitations. See, e.g., Roth v. United States, 354 U.S.
476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725,
96 L.Ed. 919 (1952) (defamation); Chaplinsky v. New Hampshire, supra, ("fighting words"); see generally
Simon & Schuster, supra, 502 U.S., at ----, 112 S.Ct., at ---- (KENNEDY, J., concurring in judgment). Our
decisions since the 1960's have narrowed the scope of the traditional categorical exceptions for
defamation, see New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz
251
v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); see generally Milkovich v.
Lorain Journal Co., 497 U.S. 1, 13-17, 110 S.Ct. 2695, ----, 111 L.Ed.2d 1 (1990), and for obscenity, see
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), but a limited categorical approach
has remained an important part of our First Amendment jurisprudence.
We have sometimes said that these categories of expression are "not within the area of constitutionally
protected speech," Roth, supra, 354 U.S., at 483, 77 S.Ct., at 1308; Beauharnais, supra, 343 U.S., at 266,
72 S.Ct., at 735; Chaplinsky, supra, 315 U.S., at 571-572, 62 S.Ct., at 768-769; or that the "protection of
the First Amendment does not extend" to them, Bose Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485, 504, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502 (1984); Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115, 124, 109 S.Ct. 2829, 2835, 106 L.Ed.2d 93 (1989). Such statements must be taken in
context, however, and are no more literally true than is the occasionally repeated shorthand
characterizing obscenity "as not being speech at all," Sunstein, Pornography and the First Amendment,
1986 Duke L.J. 589, 615, n. 146. What they mean is that these areas of speech can, consistently with the
First Amendment, be regulated because of their constitutionally proscribable content (obscenity,
defamation, etc.)—not that they are categories of speech entirely invisible to the Constitution, so that
they may be made the vehicles for content discrimination unrelated to their distinctively proscribable
content. Thus, the government may proscribe libel; but it may not make the further content
discrimination of proscribing only libel critical of the government. We recently acknowledged this
distinction in Ferber, 458 U.S., at 763, 102 S.Ct., at 3357-3358, where, in upholding New York's child
pornography law, we expressly recognized that there was no "question here of censoring a particular
literary theme. . . ." See also id., at 775, 102 S.Ct., at 3364 (O'CONNOR, J., concurring) ("As drafted, New
York's statute does not attempt to suppress the communication of particular ideas").
Our cases surely do not establish the proposition that the First Amendment imposes no obstacle
whatsoever to regulation of particular instances of such proscribable expression, so that the
government "may regulate [them] freely," post, at 400 (WHITE, J., concurring in judgment). That would
mean that a city council could enact an ordinance prohibiting only those legally obscene works that
contain criticism of the city government or, indeed, that do not include endorsement of the city
government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds
with common sense and with our jurisprudence as well.4 It is not true that "fighting words" have at
most a "de minimis " expressive content, ibid., or that their content is in all respects "worthless and
undeserving of constitutional protection," post, at 401; sometimes they are quite expressive indeed. We
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have not said that they constitute "no part of the expression of ideas," but only that they constitute "no
essential part of any exposition of ideas." Chaplinsky, 315 U.S., at 572, 62 S.Ct., at 769 (emphasis added).
The proposition that a particular instance of speech can be proscribable on the basis of one feature
(e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is
commonplace, and has found application in many contexts. We have long held, for example, that
nonverbal expressive activity can be banned because of the action it entails, but not because of the
ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be
punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not. See
Johnson, 491 U.S., at 406-407, 109 S.Ct., at 2540-2541. See also Barnes v. Glen Theatre, Inc., 501 U.S. ----,
---- - ----, 111 S.Ct. 2456, 2460-2461, 115 L.Ed.2d 504 (1991) (plurality); id., at ---- - ----, 111 S.Ct., at 24652466 (SCALIA, J., concurring in judgment); id., at ---- - ----, 111 S.Ct., at 2468-2469 (SOUTER, J., concurring
in judgment); United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672
(1968). Similarly, we have upheld reasonable "time, place, or manner" restrictions, but only if they are
"justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491
U.S. 781, 791, 109 S.Ct. 2746, 2753-2754, 105 L.Ed.2d 661 (1989) (internal quotation marks omitted);
see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 3071, 82
L.Ed.2d 221 (1984) (noting that the O'Brien test differs little from the standard applied to time, place, or
manner restrictions). And just as the power to proscribe particular speech on the basis of a noncontent
element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content
element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does
not entail the power to proscribe it on the basis of other content elements.
In other words, the exclusion of "fighting words" from the scope of the First Amendment simply means
that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal
character, essentially a "nonspeech" element of communication. Fighting words are thus analogous to a
noisy sound truck: Each is, as Justice Frankfurter recognized, a "mode of speech," Niemotko v. Maryland,
340 U.S. 268, 282, 71 S.Ct. 325, 333, 95 L.Ed. 267 (1951) (Frankfurter, J., concurring in result); both can
be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As with
the sound truck, however, so also with fighting words: The government may not regulate use based on
hostility—or favoritism—towards the underlying message expressed. Compare Frisby v. Schultz, 487 U.S.
474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (upholding, against facial challenge, a content-neutral ban
253
on targeted residential picketing) with Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263
(1980) (invalidating a ban on residential picketing that exempted labor picketing).5
The concurrences describe us as setting forth a new First Amendment principle that prohibition of
constitutionally proscribable speech cannot be "underinclusiv[e]," post, at 402 (WHITE, J., concurring in
judgment)—a First Amendment "absolutism" whereby "within a particular 'proscribable' category of
expression, . . . a government must either proscribe all speech or no speech at all," post, at 419
(STEVENS, J., concurring in judgment). That easy target is of the concurrences' own invention. In our
view, the First Amendment imposes not an "underinclusiveness" limitation but a "content
discrimination" limitation upon a State's prohibition of proscribable speech. There is no problem
whatever, for example, with a State's prohibiting obscenity (and other forms of proscribable expression)
only in certain media or markets, for although that prohibition would be "underinclusive," it would not
discriminate on the basis of content. See, e.g., Sable Communications, 492 U.S., at 124-126, 109 S.Ct., at
2835-2836 (upholding 47 U.S.C. § 223(b)(1) (1988), which prohibits obscene telephone
communications).
Even the prohibition against content discrimination that we assert the First Amendment requires is not
absolute. It applies differently in the context of proscribable speech than in the area of fully protected
speech. The rationale of the general prohibition, after all, is that content discrimination "rais[es] the
specter that the Government may effectively drive certain ideas or viewpoints from the marketplace,"
Simon & Schuster, 502 U.S., at ----, 112 S.Ct., at 508; Leathers v. Medlock, 499 U.S. ----, ----, 111 S.Ct.
1438, 1444, 113 L.Ed.2d 494 (1991); FCC v. League of Women Voters of California, 468 U.S. 364, 383-384,
104 S.Ct. 3106, 3119-3120, 82 L.Ed.2d 278 (1984); Consolidated Edison Co., 447 U.S., at 536, 100 S.Ct., at
2333; Police Dept. of Chicago v. Mosley, 408 U.S., at 95-98, 92 S.Ct., at 2289-2292. But content
discrimination among various instances of a class of proscribable speech often does not pose this threat.
When the basis for the content discrimination consists entirely of the very reason the entire class of
speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a
reason, having been adjudged neutral enough to support exclusion of the entire class of speech from
First Amendment protection, is also neutral enough to form the basis of distinction within the class. To
illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its
prurience—i.e., that which involves the most lascivious displays of sexual activity. But it may not
prohibit, for example, only that obscenity which includes offensive political messages. See Kucharek v.
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Hanaway, 902 F.2d 513, 517 (CA7 1990), cert. denied, 498 U.S. ----, 111 S.Ct. 713, 112 L.Ed.2d 702
(1991). And the Federal Government can criminalize only those threats of violence that are directed
against the President, see 18 U.S.C. § 871—since the reasons why threats of violence are outside the
First Amendment (protecting individuals from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened violence will occur) have special force when
applied to the person of the President. See Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399,
1401, 22 L.Ed.2d 664 (1969) (upholding the facial validity of § 871 because of the "overwhelmin[g]
interest in protecting the safety of [the] Chief Executive and in allowing him to perform his duties
without interference from threats of physical violence"). But the Federal Government may not
criminalize only those threats against the President that mention his policy on aid to inner cities. And to
take a final example (one mentioned by Justice STEVENS, post, at 421-422), a State may choose to
regulate price advertising in one industry but not in others, because the risk of fraud (one of the
characteristics of commercial speech that justifies depriving it of full First Amendment protection, see
Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772, 96 S.Ct. 1817,
1830-1831, 48 L.Ed.2d 346 (1976)) is in its view greater there. Cf. Morales v. Trans World Airlines, Inc.,
504 U.S. ----, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (state regulation of airline advertising); Ohralik v.
Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (state regulation of lawyer
advertising). But a State may not prohibit only that commercial advertising that depicts men in a
demeaning fashion, see, e.g., L.A. Times, Aug. 8, 1989, section 4, p. 6, col. 1.
Another valid basis for according differential treatment to even a content-defined subclass of
proscribable speech is that the subclass happens to be associated with particular "secondary effects" of
the speech, so that the regulation is "justified without reference to the content of the . . . speech,"
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986) (quoting, with
emphasis, Virginia Pharmacy Bd., supra, 425 U.S., at 771, 96 S.Ct., at 1830); see also Young v. American
Mini Theatres, Inc., 427 U.S. 50, 71, n. 34, 96 S.Ct. 2440, 2453, n. 34, 49 L.Ed.2d 310 (1976) (plurality);
id., at 80-82, 96 S.Ct., at 2457-2458 (Powell, J., concurring); Barnes, 501 U.S., at ---- - ----, 111 S.Ct., at
2469-2471 (SOUTER, J., concurring in judgment). A State could, for example, permit all obscene live
performances except those involving minors. Moreover, since words can in some circumstances violate
laws directed not against speech but against conduct (a law against treason, for example, is violated by
telling the enemy the nation's defense secrets), a particular content-based subcategory of a proscribable
class of speech can be swept up incidentally within the reach of a statute directed at conduct rather
255
than speech. See id., at ----, 111 S.Ct., at 2460 (plurality); id., at ---- - ----, 111 S.Ct., at 2465-2466 (SCALIA,
J., concurring in judgment); id., at ---- - ----, 111 S.Ct., at 2468-2469 (SOUTER, J., concurring in judgment);
FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 425-432, 110 S.Ct. 768, 776-780, 107 L.Ed.2d 851
(1990); O'Brien, 391 U.S., at 376-377, 88 S.Ct., at 1678-1679. Thus, for example, sexually derogatory
"fighting words," among other words, may produce a violation of Title VII's general prohibition against
sexual discrimination in employment practices, 42 U.S.C. § 2000e-2; 29 CFR § 1604.11 (1991). See also
18 U.S.C. § 242; 42 U.S.C. §§ 1981, 1982. Where the government does not target conduct on the basis of
its expressive content, acts are not shielded from regulation merely because they express a
discriminatory idea or philosophy.
These bases for distinction refute the proposition that the selectivity of the restriction is "even arguably
'conditioned upon the sovereign's agreement with what a speaker may intend to say.' " Metromedia,
Inc. v. San Diego, 453 U.S. 490, 555, 101 S.Ct. 2882, 2917, 69 L.Ed.2d 800 (1981) (STEVENS, J., dissenting
in part) (citation omitted). There may be other such bases as well. Indeed, to validate such selectivity
(where totally proscribable speech is at issue) it may not even be necessary to identify any particular
"neutral" basis, so long as the nature of the content discrimination is such that there is no realistic
possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest
that would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed
actresses.) Save for that limitation, the regulation of "fighting words," like the regulation of noisy
speech, may address some offensive instances and leave other, equally offensive, instances alone. See
Posadas de Puerto Rico, 478 U.S., at 342-343, 106 S.Ct., at 2977-2978.6
II
Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the
Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the
ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme
Court's construction to reach only those symbols or displays that amount to "fighting words," the
remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult,
or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive
invective, no matter how vicious or severe, are permissible unless they are addressed to one of the
specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas—to
express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—
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are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those
speakers who express views on disfavored subjects. See Simon & Schuster, 502 U.S., at ---- - ----, 112
S.Ct., at ---- - ----; Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 229-230, 107 S.Ct. 1722, 17271728, 95 L.Ed.2d 209 (1987).
In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to
actual viewpoint discrimination. Displays containing some words—odious racial epithets, for example—
would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke
race, color, creed, religion, or gender—aspersions upon a person's mother, for example—would
seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance
and equality, but could not be used by that speaker's opponents. One could hold up a sign saying, for
example, that all "antiCatholic bigots" are misbegotten; but not that all "papists" are, for that would
insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side
of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.
What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at
certain persons or groups (which would be facially valid if it met the requirements of the Equal
Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme
Court repeatedly emphasized) messages of "bias-motivated" hatred and in particular, as applied to this
case, messages "based on virulent notions of racial supremacy." 464 N.W.2d, at 508, 511. One must
wholeheartedly agree with the Minnesota Supreme Court that "[i]t is the responsibility, even the
obligation, of diverse communities to confront such notions in whatever form they appear," ibid., but
the manner of that confrontation cannot consist of selective limitations upon speech. St. Paul's brief
asserts that a general "fighting words" law would not meet the city's needs because only a contentspecific measure can communicate to minority groups that the "group hatred" aspect of such speech "is
not condoned by the majority." Brief for Respondent 25. The point of the First Amendment is that
majority preferences must be expressed in some fashion other than silencing speech on the basis of its
content.
Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is
directed at expression of group hatred, Justice STEVENS suggests that this "fundamentally misreads" the
ordinance. Post, at 433. It is directed, he claims, not to speech of a particular content, but to particular
"injur[ies]" that are "qualitatively different" from other injuries. Post, at 424. This is word-play. What
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makes the anger, fear, sense of dishonor, etc. produced by violation of this ordinance distinct from the
anger, fear, sense of dishonor, etc. produced by other fighting words is nothing other than the fact that
it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be
evaded that easily. It is obvious that the symbols which will arouse "anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender" are those symbols that communicate a
message of hostility based on one of these characteristics. St. Paul concedes in its brief that the
ordinance applies only to "racial, religious, or gender-specific symbols" such as "a burning cross, Nazi
swastika or other instrumentality of like import." Brief for Respondent 8. Indeed, St. Paul argued in the
Juvenile Court that "[t]he burning of a cross does express a message and it is, in fact, the content of that
message which the St. Paul Ordinance attempts to legislate." Memorandum from the Ramsey County
Attorney to the Honorable Charles A. Flinn, Jr., dated July 13, 1990, in In re Welfare of R.A.V., No. 89-D1231 (Ramsey Cty. Juvenile Ct.), p. 1, reprinted in App. to Brief for Petitioner C-1.
The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the
specific exceptions to the First Amendment prohibition we discussed earlier, nor within a more general
exception for content discrimination that does not threaten censorship of ideas. It assuredly does not
fall within the exception for content discrimination based on the very reasons why the particular class of
speech at issue (here, fighting words) is proscribable. As explained earlier, see supra, at 386, the reason
why fighting words are categorically excluded from the protection of the First Amendment is not that
their content communicates any particular idea, but that their content embodies a particularly
intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey.
St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected
for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a
merely obnoxious) manner. Rather, it has proscribed fight ing words of whatever manner that
communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the
possibility that the city is seeking to handicap the expression of particular ideas. That possibility would
alone be enough to render the ordinance presumptively invalid, but St. Paul's comments and
concessions in this case elevate the possibility to a certainty.
St. Paul argues that the ordinance comes within another of the specific exceptions we mentioned, the
one that allows content discrimination aimed only at the "secondary effects" of the speech, see Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). According to St. Paul, the
ordinance is intended, "not to impact on [sic ] the right of free expression of the accused," but rather to
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"protect against the victimization of a person or persons who are particularly vulnerable because of
their membership in a group that historically has been discriminated against." Brief for Respondent 28.
Even assuming that an ordinance that completely proscribes, rather than merely regulates, a specified
category of speech can ever be considered to be directed only to the secondary effects of such speech,
it is clear that the St. Paul ordinance is not directed to secondary effects within the meaning of Renton.
As we said in Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), "[l]isteners' reactions to
speech are not the type of 'secondary effects' we referred to in Renton." Id., at 321, 108 S.Ct., at 11631164. "The emotive impact of speech on its audience is not a 'secondary effect.' " Ibid. See also id., at
334, 108 S.Ct., at 1170-1171. (opinion of Brennan, J.).7
It hardly needs discussion that the ordinance does not fall within some more general exception
permitting all selectivity that for any reason is beyond the suspicion of official suppression of ideas. The
statements of St. Paul in this very case afford ample basis for, if not full confirmation of, that suspicion.
Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the
ordinance regulates expression based on hostility towards its protected ideological content, this
discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests.
Specifically, they assert that the ordinance helps to ensure the basic human rights of members of groups
that have historically been subjected to discrimination, including the right of such group members to live
in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance
can be said to promote them. But the "danger of censorship" presented by a facially content-based
statute, Leathers v. Medlock, 499 U.S. ----, ----, 111 S.Ct. 1438, 1444, 113 L.Ed.2d 494 (1991), requires
that that weapon be employed only where it is "necessary to serve the asserted [compelling] interest,"
Burson v. Freeman, 504 U.S. ----, ----, 112 S.Ct. 1846, 1852, 119 L.Ed.2d 5 (1992) (plurality) (emphasis
added); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954-955, 74
L.Ed.2d 794 (1983). The existence of adequate content-neutral alternatives thus "undercut[s]
significantly" any defense of such a statute, Boos v. Barry, supra, 485 U.S., at 329, 108 S.Ct., at 1168,
casting considerable doubt on the government's protestations that "the asserted justification is in fact
an accurate description of the purpose and effect of the law," Burson, supra, 504 U.S., at ----, 112 S.Ct.,
at 1859 (KENNEDY, J., concurring). See Boos, supra, 485 U.S., at 324-329, 108 S.Ct., at 1165-1168; cf.
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 586-587, 103 S.Ct. 1365,
1372-1373, 75 L.Ed.2d 295 (1983). The dispositive question in this case, therefore, is whether content
discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not. An
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ordinance not limited to the favored topics, for example, would have precisely the same beneficial
effect. In fact the only interest distinctively served by the content limitation is that of displaying the city
council's special hostility towards the particular biases thus singled out.8 That is precisely what the First
Amendment forbids. The politicians of St. Paul are entitled to express that hostility—but not through the
means of imposing unique limitations upon speakers who (however benightedly) disagree.
Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible.
But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First
Amendment to the fire.
The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings
not inconsistent with this opinion.
It is so ordered. Justice WHITE, with whom Justice BLACKMUN and Justice O'CONNOR join, and with
whom Justice STEVENS joins except as to Part I(A), concurring in the judgment.
I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed.
However, our agreement ends there.
This case could easily be decided within the contours of established First Amendment law by holding, as
petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only
unprotected expression but expression protected by the First Amendment. See Part II, infra. Instead,
"find[ing] it unnecessary" to consider the questions upon which we granted review,1 ante, at 381, the
Court holds the ordinance facially unconstitutional on a ground that was never presented to the
Minnesota Supreme Court, a ground that has not been briefed by the parties before this Court, a ground
that requires serious departures from the teaching of prior cases and is inconsistent with the plurality
opinion in Burson v. Freeman, 504 U.S. ----, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), which was joined by
two of the five Justices in the majority in the present case.
This Court ordinarily is not so eager to abandon its precedents. Twice within the past month, the Court
has declined to overturn longstanding but controversial decisions on questions of constitutional law. See
Allied Signal, Inc. v. Director, Division of Taxation, 504 U.S. ----, 112 S.Ct. 2251, --- L.Ed.2d ---- (1992);
Quill Corp. v. North Dakota, 504 U.S. ----, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992). In each case, we had the
benefit of full briefing on the critical issue, so that the parties and amici had the opportunity to apprise
260
us of the impact of a change in the law. And in each case, the Court declined to abandon its precedents,
invoking the principle of stare decisis. Allied Signal, Inc., supra, --- U.S., at ---- - ----, 112 S.Ct., at 2261;
Quill Corp., supra, --- U.S., at ----, 112 S.Ct., at 1915-1916.
But in the present case, the majority casts aside long-established First Amendment doctrine without the
benefit of briefing and adopts an untried theory. This is hardly a judicious way of proceeding, and the
Court's reasoning in reaching its result is transparently wrong.
* A.
This Court's decisions have plainly stated that expression falling within certain limited categories so lacks
the values the First Amendment was designed to protect that the Constitution affords no protection to
that expression. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), made
the point in the clearest possible terms:
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment
of which have never been thought to raise any Constitutional problem. . . . It has been well observed
that such utterances are no essential part of any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality." Id., at 571-572, 62 S.Ct., at 769.
See also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 504, 104 S.Ct. 1949, 1961,
80 L.Ed.2d 502 (1984) (citing Chaplinsky ).
Thus, as the majority concedes, see ante, at 383-384, this Court has long held certain discrete categories
of expression to be proscribable on the basis of their content. For instance, the Court has held that the
individual who falsely shouts "fire" in a crowded theatre may not claim the protection of the First
Amendment. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). The Court
has concluded that neither child pornography, nor obscenity, is protected by the First Amendment. New
York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982); Miller v. California, 413
U.S. 15, 20, 93 S.Ct. 2607, 2612, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 484-485, 77
S.Ct. 1304, 1308-1309, 1 L.Ed.2d 1498 (1957). And the Court has observed that, "[l]eaving aside the
special considerations when public officials [and public figures] are the target, a libelous publication is
not protected by the Constitution." Ferber, supra, 458 U.S., at 763, 102 S.Ct., at 3358 (citations omitted).
261
All of these categories are content based. But the Court has held that First Amendment does not apply
to them because their expressive content is worthless or of de minimis value to society. Chaplinsky,
supra, 315 U.S., at 571-572, 62 S.Ct., at 768-769. We have not departed from this principle, emphasizing
repeatedly that, "within the confines of [these] given classification[s], the evil to be restricted so
overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case
adjudication is required." Ferber, supra, 458 U.S., at 763-764, 102 S.Ct., at 3358-3359; Bigelow v.
Virginia, 421 U.S. 809, 819, 95 S.Ct. 2222, 2231, 44 L.Ed.2d 600 (1975). This categorical approach has
provided a principled and narrowly focused means for distinguishing between expression that the
government may regulate freely and that which it may regulate on the basis of content only upon a
showing of compelling need.2
Today, however, the Court announces that earlier Courts did not mean their repeated statements that
certain categories of expression are "not within the area of constitutionally protected speech." Roth,
supra, 354 U.S., at 483, 77 S.Ct., at 1308. See ante, at 383, citing Beauharnais v. Illinois, 343 U.S. 250,
266, 72 S.Ct. 725, 735, 96 L.Ed. 919 (1952); Chaplinsky, supra, 315 U.S., at 571-572, 62 S.Ct., at 768-769;
Bose Corp., supra, 466 U.S., at 504, 104 S.Ct., at 1961; Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115, 124, 109 S.Ct. 2829, 2835, 106 L.Ed.2d 93 (1989). The present Court submits that such clear
statements "must be taken in context" and are not "literally true." Ante, at 383.
To the contrary, those statements meant precisely what they said: The categorical approach is a firmly
entrenched part of our First Amendment jurisprudence. Indeed, the Court in Roth reviewed the
guarantees of freedom of expression in effect at the time of the ratification of the Constitution and
concluded, "[i]n light of this history, it is apparent that the unconditional phrasing of the First
Amendment was not intended to protect every utterance." 354 U.S., at 482-483, 77 S.Ct., at 1308.
In its decision today, the Court points to "[n]othing . . . in this Court's precedents warrant[ing] disregard
of this longstanding tradition." Burson, 504 U.S., at ----, 112 S.Ct., at 1860 (SCALIA, J., concurring in
judgment); Allied Signal, Inc., supra, --- U.S., at ----, 112 S.Ct., at 2261. Nevertheless, the majority holds
that the First Amendment protects those narrow categories of expression long held to be undeserving of
First Amendment protection—at least to the extent that lawmakers may not regulate some fighting
words more strictly than others because of their content. The Court announces that such content-based
distinctions violate the First Amendment because "the government may not regulate use based on
hostility—or favoritism—towards the underlying message expressed." Ante, at 386. Should the
262
government want to criminalize certain fighting words, the Court now requires it to criminalize all
fighting words.
To borrow a phrase, "Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is
at odds with common sense and with our jurisprudence as well." Ante, at 384. It is inconsistent to hold
that the government may proscribe an entire category of speech because the content of that speech is
evil, Ferber, supra, 458 U.S., at 763-764, 102 S.Ct., at 3358-3359; but that the government may not treat
a subset of that category differently without violating the First Amendment; the content of the subset is
by definition worthless and undeserving of constitutional protection.
The majority's observation that fighting words are "quite expressive indeed," ante, at 385, is no answer.
Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they
are directed against individuals to provoke violence or to inflict injury. Chaplinsky, 315 U.S., at 572, 62
S.Ct., at 769. Therefore, a ban on all fighting words or on a subset of the fighting words category would
restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the
marketplace. See ante, at 387.
Therefore, the Court's insistence on inventing its brand of First Amendment underinclusiveness puzzles
me.3 The overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of protected
expression, Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973);
Osborne v. Ohio, 495 U.S. 103, 112, n. 8, 110 S.Ct. 1691, 1697, n. 8, 109 L.Ed.2d 98 (1990); Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985); Ferber, supra, 458
U.S., at 772, 102 S.Ct., at 3362, but the Court's new "underbreadth" creation serves no desirable
function. Instead, it permits, indeed invites, the continuation of expressive conduct that in this case is
evil and worthless in First Amendment terms, see Ferber, supra, at 763-764, 102 S.Ct., at 3358-3359;
Chaplinsky, supra, 315 U.S., at 571-572, 62 S.Ct., at 768-769, until the city of St. Paul cures the
underbreadth by adding to its ordinance a catch-all phrase such as "and all other fighting words that
may constitutionally be subject to this ordinance."
Any contribution of this holding to First Amendment jurisprudence is surely a negative one, since it
necessarily signals that expressions of violence, such as the message of intimidation and racial hatred
conveyed by burning a cross on someone's lawn, are of sufficient value to outweigh the social interest in
order and morality that has traditionally placed such fighting words outside the First Amendment.4
263
Indeed, by characterizing fighting words as a form of "debate," ante, at 392, the majority legitimates
hate speech as a form of public discussion.
Furthermore, the Court obscures the line between speech that could be regulated freely on the basis of
content (i.e., the narrow categories of expression falling outside the First Amendment) and that which
could be regulated on the basis of content only upon a showing of a compelling state interest (i.e., all
remaining expression). By placing fighting words, which the Court has long held to be valueless, on at
least equal constitutional footing with political discourse and other forms of speech that we have
deemed to have the greatest social value, the majority devalues the latter category. See Burson v.
Freeman, supra, --- at ----, 112 S.Ct., at 1849-1850; Eu v. San Francisco County Democratic Central
Comm., 489 U.S. 214, 222-223, 109 S.Ct. 1013, 1019-1020, 103 L.Ed.2d 271 (1989).
B
In a second break with precedent, the Court refuses to sustain the ordinance even though it would
survive under the strict scrutiny applicable to other protected expression. Assuming, arguendo, that the
St. Paul ordinance is a content-based regulation of protected expression, it nevertheless would pass First
Amendment review under settled law upon a showing that the regulation " 'is necessary to serve a
compelling state interest and is narrowly drawn to achieve that end.' " Simon & Schuster, Inc. v. New
York Crime Victims Board, 502 U.S. ----, ----, 112 S.Ct. 501, 509, 116 L.Ed.2d 476 (1991) (quoting Arkansas
Writers' Project, Inc., v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 1728, 95 L.Ed.2d 209 (1987)). St. Paul
has urged that its ordinance, in the words of the majority, "helps to ensure the basic human rights of
members of groups that have historically been subjected to discrimination. . . ." Ante, at ----. The Court
expressly concedes that this interest is compelling and is promoted by the ordinance. Ibid. Nevertheless,
the Court treats strict scrutiny analysis as irrelevant to the constitutionality of the legislation:
"The dispositive question . . . is whether content discrimination is reasonably necessary in order to
achieve St. Paul's compelling interests; it plainly is not. An ordinance not limited to the favored topics
would have precisely the same beneficial effect." Ibid.
Under the majority's view, a narrowly drawn, content-based ordinance could never pass constitutional
muster if the object of that legislation could be accomplished by banning a wider category of speech.
This appears to be a general renunciation of strict scrutiny review, a fundamental tool of First
Amendment analysis.5
264
This abandonment of the doctrine is inexplicable in light of our decision in Burson v. Freeman, supra,
which was handed down just a month ago.6 In Burson, seven of the eight participating members of the
Court agreed that the strict scrutiny standard applied in a case involving a First Amendment challenge to
a content-based statute. See id., at 198, 112 S.Ct., at 1851; id., at 217, 112 S.Ct., at 1848 (STEVENS, J.,
dissenting).7 The statute at issue prohibited the solicitation of votes and the display or distribution of
campaign materials within 100 feet of the entrance to a polling place. The plurality concluded that the
legislation survived strict scrutiny because the State had asserted a compelling interest in regulating
electioneering near polling places and because the statute at issue was narrowly tailored to accomplish
that goal. Id., at ----, 112 S.Ct., at 1856-1857.
Significantly, the statute in Burson did not proscribe all speech near polling places; it restricted only
political speech. Id., at ----, 112 S.Ct., at 1850. The Burson plurality, which included THE CHIEF JUSTICE
and Justice KENNEDY, concluded that the distinction between types of speech required application of
strict scrutiny, but it squarely rejected the proposition that the legislation failed First Amendment
review because it could have been drafted in broader, content-neutral terms:
"States adopt laws to address the problems that confront them. The First Amendment does not require
States to regulate for problems that do not exist." Id., at ----, 112 S.Ct., at 1856 (emphasis added).
This reasoning is in direct conflict with the majority's analysis in the present case, which leaves two
options to lawmakers attempting to regulate expressions of violence: (1) enact a sweeping prohibition
on an entire class of speech (thereby requiring "regulat[ion] for problems that do not exist); or (2) not
legislate at all.
Had the analysis adopted by the majority in the present case been applied in Burson, the challenged
election law would have failed constitutional review, for its content-based distinction between political
and nonpolitical speech could not have been characterized as "reasonably necessary," ante, at 395, to
achieve the State's interest in regulating polling place premises.8
As with its rejection of the Court's categorical analysis, the majority offers no reasoned basis for
discarding our firmly established strict scrutiny analysis at this time. The majority appears to believe that
its doctrinal revisionism is necessary to prevent our elected lawmakers from prohibiting libel against
members of one political party but not another and from enacting similarly preposterous laws. Ante, at
384. The majority is misguided.
265
Although the First Amendment does not apply to categories of unprotected speech, such as fighting
words, the Equal Protection Clause requires that the regulation of unprotected speech be rationally
related to a legitimate government interest. A defamation statute that drew distinctions on the basis of
political affiliation or "an ordinance prohibiting only those legally obscene works that contain criticism of
the city government," ibid., would unquestionably fail rational basis review.9
Turning to the St. Paul ordinance and assuming arguendo, as the majority does, that the ordinance is not
constitutionally overbroad (but see Part II, infra ), there is no question that it would pass equal
protection review. The ordinance proscribes a subset of "fighting words," those that injure "on the basis
of race, color, creed, religion or gender." This selective regulation reflects the City's judgment that
harms based on race, color, creed, religion, or gender are more pressing public concerns than the harms
caused by other fighting words. In light of our Nation's long and painful experience with discrimination,
this determination is plainly reasonable. Indeed, as the majority concedes, the interest is compelling.
Ante, at 395.
C
The Court has patched up its argument with an apparently nonexhaustive list of ad hoc exceptions, in
what can be viewed either as an attempt to confine the effects of its decision to the facts of this case,
see post, at 415 (BLACKMUN, J., concurring in judgment), or as an effort to anticipate some of the
questions that will arise from its radical revision of First Amendment law.
For instance, if the majority were to give general application to the rule on which it decides this case,
today's decision would call into question the constitutionality of the statute making it illegal to threaten
the life of the President. 18 U.S.C. § 871. See Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22
L.Ed.2d 664 (1969) (per curiam ). Surely, this statute, by singling out certain threats, incorporates a
content-based distinction; it indicates that the Government especially disfavors threats against the
President as opposed to threats against all oth ers.10 See ante, at 391. But because the Government
could prohibit all threats and not just those directed against the President, under the Court's theory, the
compelling reasons justifying the enactment of special legislation to safeguard the President would be
irrelevant, and the statute would fail First Amendment review.
To save the statute, the majority has engrafted the following exception onto its newly announced First
Amendment rule: Content-based distinctions may be drawn within an unprotected category of speech if
266
the basis for the distinctions is "the very reason the entire class of speech at issue is proscribable." Ante,
at 388. Thus, the argument goes, the statute making it illegal to threaten the life of the President is
constitutional, "since the reasons why threats of violence are outside the First Amendment (protecting
individuals from the fear of violence, from the disruption that fear engenders, and from the possibility
that the threatened violence will occur) have special force when applied to the person of the President."
Ibid.
The exception swallows the majority's rule. Certainly, it should apply to the St. Paul ordinance, since
"the reasons why [fighting words] are outside the First Amendment . . . have special force when applied
to [groups that have historically been subjected to discrimination]."
To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of
communication, rather than a content-based category, and that the St. Paul ordinance has not singled
out a particularly objectionable mode of communication. Ante, at 386, 393. Again, the majority confuses
the issue. A prohibition on fighting words is not a time, place, or manner restriction; it is a ban on a class
of speech that conveys an overriding message of personal injury and imminent violence, Chaplinsky,
supra, 315 U.S., at 572, 62 S.Ct., at 769, a message that is at its ugliest when directed against groups that
have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception
to the majority's theory.
As its second exception, the Court posits that certain content-based regulations will survive under the
new regime if the regulated subclass "happens to be associated with particular 'secondary effects' of the
speech . . .," ante, at 389, which the majority treats as encompassing instances in which "words can . . .
violate laws directed not against speech but against conduct . . ." ibid.11 Again, there is a simple
explanation for the Court's eagerness to craft an exception to its new First Amendment rule: Under the
general rule the Court applies in this case, Title VII hostile work environment claims would suddenly be
unconstitutional.
Title VII makes it unlawful to discriminate "because of [an] individual's race, color, religion, sex, or
national origin," 42 U.S.C. § 2000e-2(a)(1), and the regulations covering hostile workplace claims forbid
"sexual harassment," which includes "[u]nwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature" which creates "an intimidating, hostile, or offensive
working environment." 29 CFR § 1604.11(a) (1991). The regulation does not prohibit workplace
harassment generally; it focuses on what the majority would characterize as the "disfavored topi[c]" of
267
sexual harassment. Ante, at 391. In this way, Title VII is similar to the St. Paul ordinance that the majority
condemns because it "impose[s] special prohibitions on those speakers who express views on disfavored
subjects." Ibid. Under the broad principle the Court uses to decide the present case, hostile work
environment claims based on sexual harassment should fail First Amendment review; because a general
ban on harassment in the workplace would cover the problem of sexual harassment, any attempt to
proscribe the subcategory of sexually harassing expression would violate the First Amendment.
Hence, the majority's second exception, which the Court indicates would insulate a Title VII hostile work
environment claim from an underinclusiveness challenge because "sexually derogatory 'fighting words' .
. . may produce a violation of Title VII's general prohibition against sexual discrimination in employment
practices." Ante, at 389. But application of this exception to a hostile work environment claim does not
hold up under close examination.
First, the hostile work environment regulation is not keyed to the presence or absence of an economic
quid pro quo, Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986),
but to the impact of the speech on the victimized worker. Consequently, the regulation would no more
fall within a secondary effects exception than does the St. Paul ordinance. Ante, at 394. Second, the
majority's focus on the statute's general prohibition on discrimination glosses over the language of the
specific regulation governing hostile working environment, which reaches beyond any "incidental" effect
on speech. United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). If the
relationship between the broader statute and specific regulation is sufficient to bring the Title VII
regulation within O'Brien, then all St. Paul need do to bring its ordinance within this exception is to add
some prefatory language concerning discrimination generally.
As the third exception to the Court's theory for deciding this case, the majority concocts a catchall
exclusion to protect against unforeseen problems, a concern that is heightened here given the lack of
briefing on the majority's decisional theory. This final exception would apply in cases in which "there is
no realistic possibility that official suppression of ideas is afoot." Ante, at 390. As I have demon strated,
this case does not concern the official suppression of ideas. See supra, at 401. The majority discards this
notion out-of-hand. Ante, at 395.
268
As I see it, the Court's theory does not work and will do nothing more than confuse the law. Its selection
of this case to rewrite First Amendment law is particularly inexplicable, because the whole problem
could have been avoided by deciding this case under settled First Amendment principles.
II
Although I disagree with the Court's analysis, I do agree with its conclusion: The St. Paul ordinance is
unconstitutional. However, I would decide the case on overbreadth grounds.
We have emphasized time and again that overbreadth doctrine is an exception to the established
principle that "a person to whom a statute may constitutionally be applied will not be heard to
challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in
other situations not before the Court." Broadrick v. Oklahoma, 413 U.S., at 610, 93 S.Ct., at 2915;
Brockett v. Spokane Arcades, Inc., 472 U.S., at 503-504, 105 S.Ct., at 2801-2802. A defendant being
prosecuted for speech or expressive conduct may challenge the law on its face if it reaches protected
expression, even when that person's activities are not protected by the First Amendment. This is
because "the possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of others may be muted." Broadrick, supra, 413
U.S., at 612, 93 S.Ct., at 2916; Osborne v. Ohio, 495 U.S., at 112, n. 8, 110 S.Ct., at 169, n. 8; New York v.
Ferber, supra, 458 U.S., at 768-769, 102 S.Ct. at 3360-3361; Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980); Gooding v. Wilson, 405 U.S.
518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972).
However, we have consistently held that, because overbreadth analysis is "strong medicine," it may be
invoked to strike an entire statute only when the overbreadth of the statute is not only "real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep," Broad rick, 413 U.S., at
615, 93 S.Ct., at 2917, and when the statute is not susceptible to limitation or partial invalidation. Id., at
613, 93 S.Ct., at 2916; Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574,
107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987). "When a federal court is dealing with a federal statute
challenged as overbroad, it should . . . construe the statute to avoid constitutional problems, if the
statute is subject to a limiting construction." Ferber, 458 U.S., at 769, n. 24, 102 S.Ct., at 3361, n. 24. Of
course, "[a] state court is also free to deal with a state statute in the same way." Ibid. See, e.g., Osborne,
495 U.S. at 113-114, 110 S.Ct., at 1698-1699.
269
Petitioner contends that the St. Paul ordinance is not susceptible to a narrowing construction and that
the ordinance therefore should be considered as written, and not as construed by the Minnesota
Supreme Court. Petitioner is wrong. Where a state court has interpreted a provision of state law, we
cannot ignore that interpretation, even if it is not one that we would have reached if we were construing
the statute in the first instance. Ibid.; Kolender v. Lawson, 461 U.S. 352, 355, 103 S.Ct. 1855, 1856, 75
L.Ed.2d 903 (1983); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, n. 5, 102 S.Ct.
1186, 1191, n. 5, 71 L.Ed.2d 362 (1982).12
Of course, the mere presence of a state court interpretation does not insulate a statute from
overbreadth review. We have stricken legislation when the construction supplied by the state court
failed to cure the overbreadth problem. See, e.g., Lewis v. City of New Orleans, 415 U.S. 130, 132-133,
94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974); Gooding, supra, 405 U.S., at 524-525, 92 S.Ct., at 1107-1108.
But in such cases, we have looked to the statute as construed in determining whether it contravened
the First Amendment. Here, the Minnesota Supreme Court has provided an authoritative construction of
the St. Paul antibias ordinance. Consideration of petitioner's overbreadth claim must be based on that
interpretation.
I agree with petitioner that the ordinance is invalid on its face. Although the ordinance as construed
reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial
amount of expression that—however repugnant—is shielded by the First Amendment.
In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme Court
relied upon two of the categories of speech and expressive conduct that fall outside the First
Amendment's protective sphere: words that incite "imminent lawless action," Brandenburg v. Ohio, 395
U.S. 444, 449, 89 S.Ct. 1827, 1830, 23 L.Ed.2d 430 (1969), and "fighting" words, Chaplinsky v. New
Hampshire, 315 U.S., at 571-572, 62 S.Ct., at 768-769. The Minnesota Supreme Court erred in its
application of the Chaplinsky fighting words test and consequently interpreted the St. Paul ordinance in
a fashion that rendered the ordinance facially overbroad.
In construing the St. Paul ordinance, the Minnesota Supreme Court drew upon the definition of fighting
words that appears in Chaplinsky—words "which by their very utterance inflict injury or tend to incite an
immediate breach of the peace." Id., at 572, 62 S.Ct., at 769. However, the Minnesota court was far
from clear in identifying the "injur[ies]" inflicted by the expression that St. Paul sought to regulate.
Indeed, the Minnesota court emphasized (tracking the language of the ordinance) that "the ordinance
270
censors only those displays that one knows or should know will create anger, alarm or resentment
based on racial, ethnic, gender or religious bias." In re Welfare of R.A.V., 464 N.W.2d 507, 510 (1991). I
therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that
"by its very utterance" causes "anger, alarm or resentment."
Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to
strip expression of its constitutional protection. The mere fact that expressive activity causes hurt
feelings, offense, or resentment does not render the expression unprotected. See United States v.
Eichman, 496 U.S. 310, 319, 110 S.Ct. 2404, 2410, 110 L.Ed.2d 287 (1990); Texas v. Johnson, 491 U.S.
397, 409, 414, 109 S.Ct. 2533, 2541, 2544, 105 L.Ed.2d 342 (1989); Hustler Magazine, Inc. v. Falwell, 485
U.S. 46, 55-56, 108 S.Ct. 876, 881-882, 99 L.Ed.2d 41 (1988); FCC v. Pacifica Foundation, 438 U.S. 726,
745, 98 S.Ct. 3026, 3038, 57 L.Ed.2d 1073 (1978); Hess v. Indiana, 414 U.S. 105, 107-108, 94 S.Ct. 326,
328-329, 38 L.Ed.2d 303 (1973); Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785-1786, 29
L.Ed.2d 284 (1971); Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365-1366, 22 L.Ed.2d 572
(1969); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).
In the First Amendment context, "[c]riminal statutes must be scrutinized with particular care; those that
make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid
even if they also have legitimate application." Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 2508, 96
L.Ed.2d 398 (1987) (citation omitted). The St. Paul antibias ordinance is such a law. Although the
ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes
only hurt feelings, offense, or resentment, and is protected by the First Amendment. Cf. Lewis, supra,
415 U.S., at 132, 94 S.Ct., at 972.13 The ordinance is therefore fatally overbroad and invalid on its face.
III
Today, the Court has disregarded two established principles of First Amendment law without providing a
coherent replacement theory. Its decision is an arid, doctrinaire interpretation, driven by the frequently
irresistible impulse of judges to tinker with the First Amendment. The decision is mischievous at best
and will surely confuse the lower courts. I join the judgment, but not the folly of the opinion.
Justice BLACKMUN, concurring in the judgment.
271
I regret what the Court has done in this case. The majority opinion signals one of two possibilities: it will
serve as precedent for future cases, or it will not. Either result is disheartening.
In the first instance, by deciding that a State cannot regulate speech that causes great harm unless it
also regulates speech that does not (setting law and logic on their heads), the Court seems to abandon
the categorical approach, and inevitably to relax the level of scrutiny applicable to content-based laws.
As Justice WHITE points out, this weakens the traditional protections of speech. If all expressive activity
must be accorded the same protection, that protection will be scant. The simple reality is that the Court
will never provide child pornography or cigarette advertising the level of protection customarily granted
political speech. If we are forbidden from categorizing, as the Court has done here, we shall reduce
protection across the board. It is sad that in its effort to reach a satisfying result in this case, the Court is
willing to weaken First Amendment protections.
In the second instance is the possibility that this case will not significantly alter First Amendment
jurisprudence, but, instead, will be regarded as an aberration—a case where the Court manipulated
doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and verbal
assaults are of greater harm than other fighting words. I fear that the Court has been distracted from its
proper mission by the temptation to decide the issue over "politically correct speech" and "cultural
diversity," neither of which is presented here. If this is the meaning of today's opinion, it is perhaps even
more regrettable.
I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving
minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the
people of Saint Paul from specifically punishing the race-based fighting words that so prejudice their
community.
I concur in the judgment, however, because I agree with Justice WHITE that this particular ordinance
reaches beyond fighting words to speech protected by the First Amendment.
Justice STEVENS, with whom Justice WHITE and Justice BLACKMUN join as to Part I, concurring in the
judgment.
Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a
fire near an ammunition dump or a gasoline storage tank is especially dangerous; such behavior may be
272
punished more severely than burning trash in a vacant lot. Threatening someone because of her race or
religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public
official may cause substantial social disruption; such threats may be punished more severely than
threats against someone based on, say, his support of a particular athletic team. There are legitimate,
reasonable, and neutral justifications for such special rules.
This case involves the constitutionality of one such ordinance. Because the regulated conduct has some
communicative content—a message of racial, religious or gender hostility—the ordinance raises two
quite different First Amendment questions. Is the ordinance "overbroad" because it prohibits too much
speech? If not, is it "underbroad" because it does not prohibit enough speech?
In answering these questions, my colleagues today wrestle with two broad principles: first, that certain
"categories of expression [including 'fighting words'] are 'not within the area of constitutionally
protected speech,' " ante, at 400 (WHITE, J., concurring in judgment); and second, that "[c]ontent-based
regulations [of expression] are presumptively invalid." Ante, at 382 (Opinion of the Court). Although in
past opinions the Court has repeated both of these maxims, it has—quite rightly—adhered to neither
with the absolutism suggested by my colleagues. Thus, while I agree that the St. Paul ordinance is
unconstitutionally overbroad for the reasons stated in Part II of Justice WHITE's opinion, I write
separately to suggest how the allure of absolute principles has skewed the analysis of both the majority
and concurring opinions.
* Fifty years ago, the Court articulated a categorical approach to First Amendment jurisprudence.
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment
of which have never been thought to raise any Constitutional problem. . . . It has been well observed
that such utterances are no essential part of any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769,
86 L.Ed. 1031 (1942).
We have, as Justice WHITE observes, often described such categories of expression as "not within the
area of constitutionally protected speech." Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308,
1 L.Ed.2d 1498 (1957).
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The Court today revises this categorical approach. It is not, the Court rules, that certain "categories" of
expression are "unprotected," but rather that certain "elements" of expression are wholly
"proscribable." To the Court, an expressive act, like a chemical compound, consists of more than one
element. Although the act may be regulated because it contains a proscribable element, it may not be
regulated on the basis of another (nonproscribable) element it also contains. Thus, obscene
antigovernment speech may be regulated because it is obscene, but not because it is antigovernment.
Ante, at 384. It is this revision of the categorical approach that allows the Court to assume that the St.
Paul ordinance proscribes only fighting words, while at the same time concluding that the ordinance is
invalid because it imposes a content-based regulation on expressive activity.
As an initial matter, the Court's revision of the categorical approach seems to me something of an
adventure in a doctrinal wonderland, for the concept of "obscene anti-government" speech is
fantastical. The category of the obscene is very narrow; to be obscene, expression must be found by the
trier of fact to "appea[l] to the prurient interest, . . . depic[t] or describ[e], in a patently offensive way,
sexual conduct, [and] taken as a whole, lac[k] serious literary, artistic, political or scientific value." Miller
v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-2615, 37 L.Ed.2d 419 (1973) (emphasis added).
"Obscene antigovernment" speech, then, is a contradiction in terms: If expression is antigovernment, it
does not "lac[k] serious . . . political . . . value" and cannot be obscene.
The Court attempts to bolster its argument by likening its novel analysis to that applied to restrictions on
the time, place, or manner of expression or on expressive conduct. It is true that loud speech in favor of
the Republican Party can be regulated because it is loud, but not because it is pro-Republican; and it is
true that the public burning of the American flag can be regulated because it involves public burning and
not because it involves the flag. But these analogies are inapposite. In each of these examples, the two
elements (e.g., loudness and pro-Republican orientation) can coexist; in the case of "obscene
antigovernment" speech, however, the presence of one element ("obscenity") by definition means the
absence of the other. To my mind, it is unwise and unsound to craft a new doctrine based on such highly
speculative hypotheticals.
I am, however, even more troubled by the second step of the Court's analysis—namely, its conclusion
that the St. Paul ordinance is an unconstitutional content-based regulation of speech. Drawing on
broadly worded dicta, the Court establishes a near-absolute ban on content-based regulations of
expression and holds that the First Amendment prohibits the regulation of fighting words by subject
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matter. Thus, while the Court rejects the "all-or-nothing-at-all" nature of the categorical approach, ante,
at 384, it promptly embraces an absolutism of its own: within a particular "proscribable" category of
expression, the Court holds, a government must either proscribe all speech or no speech at all.1 This
aspect of the Court's ruling fundamentally misunderstands the role and constitutional status of contentbased regulations on speech, conflicts with the very nature of First Amendment jurisprudence, and
disrupts well-settled principles of First Amendment law.
Although the Court has, on occasion, declared that content-based regulations of speech are "never
permitted," Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212
(1972), such claims are overstated. Indeed, in Mosley itself, the Court indicated that Chicago's selective
proscription of nonlabor picketing was not per se unconstitutional, but rather could be upheld if the City
demonstrated that nonlabor picketing was "clearly more disruptive than [labor] picketing." Id., at 100,
92 S.Ct., at 2292. Contrary to the broad dicta in Mosley and elsewhere, our decisions demonstrate that
content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable
aspect of a coherent understanding of the First Amendment.
This is true at every level of First Amendment law. In broadest terms, our entire First Amendment
jurisprudence creates a regime based on the content of speech. The scope of the First Amendment is
determined by the content of expressive activity: Although the First Amendment broadly protects
"speech," it does not protect the right to "fix prices, breach contracts, make false warranties, place bets
with bookies, threaten, [or] extort." Schauer, Categories and the First Amendment: A Play in Three Acts,
34 Vand.L.Rev. 265, 270 (1981). Whether an agreement among competitors is a violation of the
Sherman Act or protected activity under the Noerr-Pennington doctrine2 hinges upon the content of the
agreement. Similarly, "the line between permissible advocacy and impermissible incitation to crime or
violence depends, not merely on the setting in which the speech occurs, but also on exactly what the
speaker had to say." Young v. American Mini Theatres, Inc., 427 U.S. 50, 66, 96 S.Ct. 2440, 2450, 49
L.Ed.2d 310 (1976) (plurality opinion); see also Musser v. Utah, 333 U.S. 95, 100-103, 68 S.Ct. 397, 399401, 92 L.Ed. 562 (1948) (Rutledge, J., dissenting).
2
See Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).
275
Likewise, whether speech falls within one of the categories of "unprotected" or "proscribable"
expression is determined, in part, by its content. Whether a magazine is obscene, a gesture a fighting
word, or a photograph child pornography is determined, in part, by its content. Even within categories
of protected expression, the First Amendment status of speech is fixed by its content. New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), establish that the level of
protection given to speech depends upon its subject matter: speech about public officials or matters of
public concern receives greater protection than speech about other topics. It can, therefore, scarcely be
said that the regulation of expressive activity cannot be predicated on its content: much of our First
Amendment jurisprudence is premised on the assumption that content makes a difference.
Consistent with this general premise, we have frequently upheld content-based regulations of speech.
For example, in Young v. American Mini Theatres, the Court upheld zoning ordinances that regulated
movie theaters based on the content of the films shown. In FCC v. Pacifica Foundation, 438 U.S. 726, 98
S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (plurality opinion), we upheld a restriction on the broadcast of
specific indecent words. In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770
(1974) (plurality opinion), we upheld a city law that permitted commercial advertising, but prohibited
political advertising, on city buses. In Broadrick v. Oklahoma, 413 U.S. 601, 93 ,S.Ct. 2908, 37 L.Ed.2d 830
(1973), we upheld a state law that restricted the speech of state employees, but only as concerned
partisan political matters. We have long recognized the power of the Federal Trade Commission to
regulate misleading advertising and labeling, see, e.g., Jacob Siegel Co. v. FTC, 327 U.S. 608, 66 S.Ct. 758,
90 L.Ed. 888 (1946), and the National Labor Relations Board's power to regulate an employer's electionrelated speech on the basis of its content. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616-618,
89 S.Ct. 1918, 1942-1943, 23 L.Ed.2d 547 (1969). It is also beyond question that the Government may
choose to limit advertisements for cigarettes, see 15 U.S.C. §§ 1331-1340,3 but not for cigars; choose to
regulate airline advertising, see Morales v. Trans World Airlines, 504 U.S. ----, 112 S.Ct. 2031, 119 L.Ed.2d
157 (1992), but not bus advertising; or choose to monitor solicitation by lawyers, see Ohralik v. Ohio
State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), but not by doctors.
All of these cases involved the selective regulation of speech based on content—precisely the sort of
regulation the Court invalidates today. Such selective regulations are unavoidably content based, but
they are not, in my opinion, "presumptively invalid." As these many decisions and examples
276
demonstrate, the prohibition on content-based regulations is not nearly as total as the Mosley dictum
suggests.
Disregarding this vast body of case law, the Court today goes beyond even the overstatement in Mosley
and applies the prohibition on content-based regulation to speech that the Court had until today
considered wholly "unprotected" by the First Amendment—namely, fighting words. This new absolutism
in the prohibition of content-based regulations severely contorts the fabric of settled First Amendment
law.
Our First Amendment decisions have created a rough hierarchy in the constitutional protection of
speech. Core political speech occupies the highest, most protected position; commercial speech and
nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and
fighting words receive the least protection of all. Assuming that the Court is correct that this last class of
speech is not wholly "unprotected," it certainly does not follow that fighting words and obscenity
receive the same sort of protection afforded core political speech. Yet in ruling that proscribable speech
cannot be regulated based on subject
3
See also Packer Corp v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932) (Brandeis, J.) (upholding a
statute that prohibited the advertisement of cigarettes on billboards and street-car placards). matter,
the Court does just that.4 Perversely, this gives fighting words greater protection than is afforded
commercial speech. If Congress can prohibit false advertising directed at airline passengers without also
prohibiting false advertising directed at bus passengers and if a city can prohibit political advertisements
in its buses while allowing other advertisements, it is ironic to hold that a city cannot regulate fighting
words based on "race, color, creed, religion or gender" while leaving unregulated fighting words based
on "union membership or homosexuality." Ante, at 391. The Court today turns First Amendment law on
its head: Communication that was once entirely unprotected (and that still can be wholly proscribed) is
now entitled to greater protection than commercial speech—and possibly greater protection than core
political speech. See Burson v. Freeman, 504 U.S. 191, 195, 196, 112 S.Ct. 1846, ----, 119 L.Ed.2d 5
(1992).
Perhaps because the Court recognizes these perversities, it quickly offers some ad hoc limitations on its
newly extended prohibition on content-based regulations. First, the Court states that a content-based
277
regulation is valid "[w]hen the content discrimination is based upon the very reason the entire class of
speech . . . is proscribable." In a pivotal passage, the Court writes
"the Federal Government can criminalize only those physical threats that are directed against the
President, see 18 U.S.C. § 871—since the reasons why
4
The Court states that the prohibition on content-based regulations "applies differently in the context of
proscribable speech" than in the context of other speech, ante, at 387, but its analysis belies that claim.
The Court strikes down the St. Paul ordinance because it regulates fighting words based on subject
matter, despite the fact that, as demonstrated above, we have long upheld regulations of commercial
speech based on subject matter. The Court's self-description is inapt: By prohibiting the regulation of
fighting words based on its subject matter, the Court provides the same protection to fighting words as
is currently provided to core political speech.
threats of violence are outside the First Amendment (protecting individuals from the fear of violence,
from the disruption that fear engenders, and from the possibility that the threatened violence will
occur) have special force when applied to the . . . President." Ante, at 388.
As I understand this opaque passage, Congress may choose from the set of unprotected speech (all
threats) to proscribe only a subset (threats against the President) because those threats are particularly
likely to cause "fear of violence," "disruption," and actual "violence."
Precisely this same reasoning, however, compels the conclusion that St. Paul's ordinance is
constitutional. Just as Congress may determine that threats against the President entail more severe
consequences than other threats, so St. Paul's City Council may determine that threats based on the
target's race, religion, or gender cause more severe harm to both the target and to society than other
threats. This latter judgment—that harms caused by racial, religious, and gender-based invective are
qualitatively different from that caused by other fighting words seems to me eminently reasonable and
realistic.
Next, the Court recognizes that a State may regulate advertising in one industry but not another
because "the risk of fraud (one of the characteristics that justifies depriving [commercial speech] of full
First Amendment protection . . .)" in the regulated industry is "greater" than in other industries. Ibid.
278
Again, the same reasoning demonstrates the constitutionality of St. Paul's ordinance. "[O]ne of the
characteristics that justifies" the constitutional status of fighting words is that such words "by their very
utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, 315 U.S., at 572,
62 S.Ct., at 762. Certainly a legislature that may determine that the risk of fraud is greater in the legal
trade than in the medical trade may determine that the risk of injury or breach of peace created by racebased threats is greater than that created by other threats.
Similarly, it is impossible to reconcile the Court's analysis of the St. Paul ordinance with its recognition
that "a prohibition of fighting words that are directed at certain persons or groups . . . would be facially
valid." Ante, at 392 (emphasis deleted). A selective proscription of unprotected expression designed to
protect "certain persons or groups" (for example, a law proscribing threats directed at the elderly)
would be constitutional if it were based on a legitimate determination that the harm created by the
regulated expression differs from that created by the unregulated expression (that is, if the elderly are
more severely injured by threats than are the nonelderly). Such selective protection is no different from
a law prohibiting minors (and only minors) from obtaining obscene publications. See Ginsberg v. New
York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). St. Paul has determined—reasonably in my
judgment—that fighting-word injuries "based on race, color, creed, religion or gender" are qualitatively
different and more severe than fighting-word injuries based on other characteristics. Whether the
selective proscription of proscribable speech is defined by the protected target ("certain persons or
groups") or the basis of the harm (injuries "based on race, color, creed, religion or gender") makes no
constitutional difference: what matters is whether the legislature's selection is based on a legitimate,
neutral, and reasonable distinction.
In sum, the central premise of the Court's ruling—that "[c]ontent-based regulations are presumptively
invalid"—has simplistic appeal, but lacks support in our First Amendment jurisprudence. To make
matters worse, the Court today extends this overstated claim to reach categories of hitherto
unprotected speech and, in doing so, wreaks havoc in an area of settled law. Finally, although the Court
recognizes exceptions to its new principle, those exceptions undermine its very conclusion that the St.
Paul ordinance is unconstitutional. Stated directly, the majority's position cannot withstand scrutiny.
II
Although I agree with much of Justice WHITE's analysis, I do not join Part I-A of his opinion because I
have reservations about the "categorical approach" to the First Amendment. These concerns, which I
279
have noted on other occasions, see, e.g., New York v. Ferber, 458 U.S. 747, 778, 102 S.Ct. 3348, 33653366, 73 L.Ed.2d 1113 (1982) (STEVENS, J., concurring in judgment), lead me to find Justice WHITE's
response to the Court's analysis unsatisfying.
Admittedly, the categorical approach to the First Amendment has some appeal: either expression is
protected or it is not—the categories create safe harbors for governments and speakers alike. But this
approach sacrifices subtlety for clarity and is, I am convinced, ultimately unsound. As an initial matter,
the concept of "categories" fits poorly with the complex reality of expression. Few dividing lines in First
Amendment law are straight and unwavering, and efforts at categorization inevitably give rise only to
fuzzy boundaries. Our definitions of "obscenity," see, e.g., Marks v. United States, 430 U.S. 188, 198, 97
S.Ct. 990, 996, 51 L.Ed.2d 260 (1977) (STEVENS, J., concurring in part and dissenting in part), and "public
forum," see, e.g., United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 126131, 101 S.Ct. 2676, 2683-2686, 69 L.Ed.2d 517 (1981); id., at 136-140, 101 S.Ct., at 2688-2691 (Brennan,
J., concurring in judgment); id., at 147-151, 101 S.Ct., at 2694-2696 (Marshall, J., dissenting); 152-154,
101 S.Ct. at 2696-2698 (STEVENS, J., dissenting) (all debating the definition of "public forum"), illustrate
this all too well. The quest for doctrinal certainty through the definition of categories and subcategories
is, in my opinion, destined to fail.
Moreover, the categorical approach does not take seriously the importance of context. The meaning of
any expression and the legitimacy of its regulation can only be determined in context.5 Whether, for
example, a picture or a sentence is obscene cannot be judged in the abstract, but rather only in the
context of its setting, its use, and its audience. Similarly, although legislatures may freely regulate most
nonobscene child pornography, such pornography that is part of "a serious work of art, a documentary
on behavioral problems, or a medical or psychiatric teaching device," may be entitled to constitutional
protection; the "question whether a specific act of communication is protected by the First Amendment
always requires some consideration of both its content and its context." Ferber, 458 U.S. at 778, 102
S.Ct., at 3366 (STEVENS, J., concurring in judgment); see also Smith v. United States, 431 U.S. 291, 311321, 97 S.Ct. 1756, 1769-1774, 52 L.Ed.2d 324 (1977) (STEVENS, J., dissenting). The categorical approach
sweeps too broadly when it declares that all such expression is beyond the protection of the First
Amendment.
Perhaps sensing the limits of such an all-or-nothing approach, the Court has applied its analysis less
categorically than its doctrinal statements suggest. The Court has recognized intermediate categories of
speech (for example, for indecent nonobscene speech and commercial speech) and geographic
280
categories of speech (public fora, limited public fora, nonpublic fora) entitled to varying levels of
protection. The Court has also stringently delimited the categories of unprotected speech. While we
once declared that "[l]ibelous utterances [are] not . . . within the area of constitutionally protected
speech," Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919 (1952), our rulings in
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch,
Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), have substantially qualified this broad
claim. Similarly, we have consistently construed the "fighting words" exception set forth in Chaplinsky
narrowly. See, e.g., Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Lewis v. City of
New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Cohen v. California, 403 U.S. 15, 91 S.Ct.
1780, 29 L.Ed.2d 284 (1971). In the case of commercial speech, our ruling that "the Constitution imposes
no . . . restraint on government [regulation] as respects purely commercial advertising," Valentine v.
Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262 (1942), was expressly repudiated in
Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48
L.Ed.2d 346 (1976). In short, the history of the categorical approach is largely the history of narrowing
the categories of unprotected speech.
This evolution, I believe, indicates that the categorical approach is unworkable and the quest for
absolute categories of "protected" and "unprotected" speech ultimately futile. My analysis of the faults
and limits of this approach persuades me that the categorical approach presented in Part I-A of Justice
WHITE's opinion is not an adequate response to the novel "underbreadth" analysis the Court sets forth
today.
III
As the foregoing suggests, I disagree with both the Court's and part of Justice WHITE's analysis of the
constitutionality St. Paul ordinance. Unlike the Court, I do not believe that all content-based regulations
are equally infirm and presumptively invalid; unlike Justice WHITE, I do not believe that fighting words
are wholly unprotected by the First Amendment. To the contrary, I believe our decisions establish a
more complex and subtle analysis, one that considers the content and context of the regulated speech,
and the nature and scope of the restriction on speech. Applying this analysis and assuming arguendo (as
the Court does) that the St. Paul ordinance is not overbroad, I conclude that such a selective, subjectmatter regulation on proscribable speech is constitutional.
281
Not all content-based regulations are alike; our decisions clearly recognize that some content-based
restrictions raise more constitutional questions than others. Although the Court's analysis of contentbased regulations cannot be reduced to a simple formula, we have considered a number of factors in
determining the validity of such regulations.
First, as suggested above, the scope of protection provided expressive activity depends in part upon its
content and character. We have long recognized that when government regulates political speech or
"the expression of editorial opinion on matters of public importance," FCC v. League of Women Voters of
California, 468 U.S. 364, 375-376, 104 S.Ct. 3106, 3114-3115, 82 L.Ed.2d 278 (1984), "First Amendment
protectio[n] is 'at its zenith.' " Meyer v. Grant, 486 U.S. 414, 425, 108 S.Ct. 1886, 1894, 100 L.Ed.2d 425
(1988). In comparison, we have recognized that "commercial speech receives a limited form of First
Amendment protection," Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328,
340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986), and that "society's interest in protecting [sexually
explicit films] is of a wholly different, and lesser magnitude than [its] interest in untrammeled political
debate." Young v. American Mini Theatres, 427 U.S., at 70, 96 S.Ct., at 2452; see also FCC v. Pacifica
Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). The character of expressive activity also
weighs in our consideration of its constitutional status. As we have frequently noted, "[t]he government
generally has a freer hand in restricting expressive conduct than it has in restricting the written or
spoken word." Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 2540, 105 L.Ed.2d 342 (1989); see
also United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
The protection afforded expression turns as well on the context of the regulated speech. We have
noted, for example, that "[a]ny assessment of the precise scope of employer expression, of course, must
be made in the context of its labor relations setting . . . [and] must take into account the economic
dependence of the employees on their employers." NLRB v. Gissel Packing Co., 395 U.S., at 617, 89 S.Ct.,
at 1942. Similarly, the distinctive character of a university environment, see Widmar v. Vincent, 454 U.S.
263, 277-280, 102 S.Ct. 269, 278-280, 70 L.Ed.2d 440 (1981) (STEVENS, J., concurring in judgment), or a
secondary school environment, see Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 592, 98
L.Ed.2d 562 (1988), influences our First Amendment analysis. The same is true of the presence of a "
'captive audience[, one] there as a matter of necessity, not of choice.' " Lehman v. City of Shaker
Heights, 418 U.S., at 302, 94 S.Ct., at 2717 (citation omitted).6 Perhaps the most familiar embodiment of
the relevance of context is our "fora" jurisprudence, differentiating the levels of protection afforded
speech in different locations.
282
The nature of a contested restriction of speech also informs our evaluation of its constitutionality. Thus,
for example, "[a]ny system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct.
631, 639, 9 L.Ed.2d 584 (1963). More particularly to the matter of content-based regulations, we have
implicitly distinguished between restrictions on expression based on subject matter and restrictions
based on viewpoint, indicating that the latter are particularly pernicious. "If there is a bedrock principle
underlying the First Amendment, it is that the Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S., at 414,
109 S.Ct., at 2544. "Viewpoint discrimination is censorship in its purest form," Perry Education Assn. v.
Perry Local Educators' Assn., 460 U.S. 37, 62, 103 S.Ct. 948, 964, 74 L.Ed.2d 794 (1983) (Brennan, J.,
dissenting), and requires particular scrutiny, in part because such regulation often indicates a legislative
effort to skew public debate on an issue. See, e.g., Schacht v. United States, 398 U.S. 58, 63, 90 S.Ct.
1555, 1559, 26 L.Ed.2d 44 (1970). "Especially where . . . the legislature's suppression of speech suggests
an attempt to give one side of a debatable public question an advantage in expressing its views to the
people, the First Amendment is plainly offended." First National Bank of Boston v. Bellotti, 435 U.S. 765,
785-786, 98 S.Ct. 1407, 1420-1421, 55 L.Ed.2d 707 (1978). Thus, although a regulation that on its face
regulates speech by subject matter may in some instances effectively suppress particular viewpoints,
see, e.g., Consolidated Edison Co. of N.Y. v. Public Service Comm'n of N.Y., 447 U.S. 530, 546-547, 100
S.Ct. 2326, 2338, 65 L.Ed.2d 319 (1980) (STEVENS, J., concurring in judgment), in general, viewpointbased restrictions on expression require greater scrutiny than subject-matter based restrictions.7
Finally, in considering the validity of content-based regulations we have also looked more broadly at the
scope of the restrictions. For example, in Young v. American Mini Theatres, 427 U.S., at 71, 96 S.Ct., at
2452-2453, we found significant the fact that "what [was] ultimately at stake [was] nothing more than a
limitation on the place where adult films may be exhibited." Similarly, in FCC v. Pacifica Foundation, the
Court emphasized two dimensions of the limited scope of the FCC ruling. First, the ruling concerned only
broadcast material which presents particular problems because it "confronts the citizen . . . in the
privacy of the home"; second, the ruling was not a complete ban on the use of selected offensive words,
but rather merely a limitation on the times such speech could be broadcast. 438 U.S., at 748-750, 98
S.Ct., at 3039-3041.
All of these factors play some role in our evaluation of content-based regulations on expression. Such a
multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute
283
doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a
regulation "content-based" or "content-neutral." In applying this analysis to the St. Paul ordinance, I
assume arguendo —as the Court does—that the ordinance regulates only fighting words and therefore
is not overbroad. Looking to the content and character of the regulated activity, two things are clear.
First, by hypothesis the ordinance bars only low-value speech, namely, fighting words. By definition such
expression constitutes "no essential part of any exposition of ideas, and [is] of such slight social value as
a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest
in order and morality." Chaplinsky, 315 U.S., at 572, 62 S.Ct., at 769. Second, the ordinance regulates
"expressive conduct [rather] than . . . the written or spoken word." Texas v. Johnson, 491 U.S., at 406,
109 S.Ct., at 2540.
Looking to the context of the regulated activity, it is again significant that the statute (by hypothesis)
regulates only fighting words. Whether words are fighting words is determined in part by their context.
Fighting words are not words that merely cause offense; fighting words must be directed at individuals
so as to "by their very utterance inflict injury." By hypothesis, then, the St. Paul ordinance restricts
speech in confrontational and potentially violent situations. The case at hand is illustrative. The crossburning in this case—directed as it was to a single African-American family trapped in their home—was
nothing more than a crude form of physical intimidation. That this cross-burning sends a message of
racial hostility does not automatically endow it with complete constitutional protection.8
Significantly, the St. Paul ordinance regulates speech not on the basis of its subject matter or the
viewpoint expressed, but rather on the basis of the harm the speech causes. In this regard, the Court
fundamentally misreads the St. Paul ordinance. The Court describes the St. Paul ordinance as regulating
expression "addressed to one of [several] specified disfavored topics," ante, at 391 (emphasis supplied),
as policing "disfavored subjects," ibid. (emphasis supplied), and as "prohibit[ing] . . . speech solely on the
basis of the subjects the speech addresses." Ante, at 381 (emphasis supplied). Contrary to the Court's
suggestion, the ordinance regulates only a subcategory of expression that causes injuries based on "race,
color, creed, religion or gender," not a subcategory that involves discussions that concern those
characteristics.9 The ordinance, as construed by the Court, criminalizes expression that "one knows . . .
[by its very utterance inflicts injury on] others on the basis of race, color, creed, religion or gender." In
this regard, the ordinance resembles the child pornography law at issue in Ferber, which in effect singled
out child pornography because those publications caused far greater harms than pornography involving
adults.
284
Moreover, even if the St. Paul ordinance did regulate fighting words based on its subject matter, such a
regulation would, in my opinion, be constitutional. As noted above, subject-matter based regulations on
commercial speech are widespread and largely unproblematic. As we have long recognized, subjectmatter regulations generally do not raise the same concerns of government censorship and the
distortion of public discourse presented by viewpoint regulations. Thus, in upholding subject-matter
regulations we have carefully noted that viewpoint-based discrimination was not implicated. See Young
v. American Mini Theatres, 427 U.S., at 67, 96 S.Ct., at 2450-2451 (emphasizing "the need for absolute
neutrality by the government," and observing that the contested statute was not animated by "hostility
for the point of view" of the theatres); FCC v. Pacifica Foundation, 438 U.S., at 745-746, 98 S.Ct., at 30383039 (stressing that "government must remain neutral in the marketplace of ideas"); see also FCC v.
League of Women's Voters of California, 468 U.S., at 412-417, 104 S.Ct., at 3134-3137 (STEVENS, J.,
dissenting); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 554-555, 101 S.Ct. 2882, 2916-2917, 69
L.Ed.2d 800 (1981) (STEVENS, J., dissenting in part). Indeed, some subject-matter restrictions are a
functional necessity in contemporary governance: "The First Amendment does not require States to
regulate for problems that do not exist." Burson v. Freeman, 504 U.S. ----, ----, 112 S.Ct. 1846, 1856, 119
L.Ed.2d 5 (1992).
Contrary to the suggestion of the majority, the St. Paul ordinance does not regulate expression based on
viewpoint. The Court contends that the ordinance requires proponents of racial intolerance to "follow
the Marquis of Queensbury Rules" while allowing advocates of racial tolerance to "fight freestyle." The
law does no such thing.
The Court writes:
"One could hold up a sign saying, for example, that all 'anti-Catholic bigots' are misbegotten; but not
that all 'papists' are, for that would insult and provoke violence 'on the basis of religion.' " Ante, at 391392.
This may be true, but it hardly proves the Court's point. The Court's reasoning is asymmetrical. The
response to a sign saying that "all [religious] bigots are misbegotten" is a sign saying that "all advocates
of religious tolerance are misbegotten." Assuming such signs could be fighting words (which seems to
me extremely unlikely), neither sign would be banned by the ordinance for the attacks were not "based
on . . . religion" but rather on one's beliefs about tolerance. Conversely (and again assuming such signs
are fighting words), just as the ordinance would prohibit a Muslim from hoisting a sign claiming that all
285
Catholics were misbegotten, so the ordinance would bar a Catholic from hoisting a similar sign attacking
Muslims.
The St. Paul ordinance is evenhanded. In a battle between advocates of tolerance and advocates of
intolerance, the ordinance does not prevent either side from hurling fighting words at the other on the
basis of their conflicting ideas, but it does bar both sides from hurling such words on the basis of the
target's "race, color, creed, religion or gender." To extend the Court's pugilistic metaphor, the St. Paul
ordinance simply bans punches "below the belt"—by either party. It does not, therefore, favor one side
of any debate.10
Finally, it is noteworthy that the St. Paul ordinance is, as construed by the Court today, quite narrow.
The St. Paul ordinance does not ban all "hate speech," nor does it ban, say, all cross-burnings or all
swastika displays. Rather it only bans a subcategory of the already narrow category of fighting words.
Such a limited ordinance leaves open and protected a vast range of expression on the subjects of racial,
religious, and gender equality. As construed by the Court today, the ordinance certainly does not " 'raise
the specter that the Government may effectively drive certain ideas or viewpoints from the
marketplace.' " Ante, at 387. Petitioner is free to burn a cross to announce a rally or to express his views
about racial supremacy, he may do so on private property or public land, at day or at night, so long as
the burning is not so threatening and so directed at an individual as to "by its very [execution] inflict
injury." Such a limited proscription scarcely offends the First Amendment.
In sum, the St. Paul ordinance (as construed by the Court) regulates expressive activity that is wholly
proscribable and does so not on the basis of viewpoint, but rather in recognition of the different harms
caused by such activity. Taken together, these several considerations persuade me that the St. Paul
ordinance is not an unconstitutional content-based regulation of speech. Thus, were the ordinance not
overbroad, I would vote to uphold it.
*
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337,
26 S.Ct. 282, 287, 50 L.Ed. 499.
1
286
The conduct might have violated Minnesota statutes carrying significant penalties. See, e.g., Minn.Stat.
§ 609.713(1) (1987) (providing for up to five years in prison for terroristic threats); § 609.563 (arson)
(providing for up to five years and a $10,000 fine, depending on the value of the property intended to be
damaged); § 609.595 (Supp.1992) (criminal damage to property) (providing for up to one year and a
$3,000 fine, depending upon the extent of the damage to the property).
2
Petitioner has also been charged, in Count I of the delinquency petition, with a violation of Minn.Stat. §
609.2231(4) (Supp.1990) (racially motivated assaults). Petitioner did not challenge this count.
3
Contrary to Justice WHITE's suggestion, post, at 397-398, petitioner's claim is "fairly included" within the
questions presented in the petition for certiorari, see this Court's Rule 14.1(a). It was clear from the
petition and from petitioner's other filings in this Court (and in the courts below) that his assertion that
the St. Paul ordinance "violat[es] overbreadth . . . principles of the First Amendment," Pet. for Cert. i,
was not just a technical "overbreadth" claim—i.e., a claim that the ordinance violated the rights of too
many third parties—but included the contention that the ordinance was "overbroad" in the sense of
restricting more speech than the Constitution permits, even in its application to him, because it is
content-based. An important component of petitioner's argument is, and has been all along, that
narrowly construing the ordinance to cover only "fighting words" cannot cure this fundamental defect.
Id., at 12, 14, 15-16. In his briefs in this Court, petitioner argued that a narrowing construction was
ineffective because (1) its boundaries were vague, Brief for Petitioner 26, and because (2) denominating
particular expression a "fighting word" because of the impact of its ideological content upon the
audience is inconsistent with the First Amendment, Reply Brief for Petitioner 5; id., at 13 ("[The
ordinance] is overbroad, viewpoint discriminatory and vague as 'narrowly construed' ") (emphasis
added). At oral argument, counsel for Petitioner reiterated this second point: "It is . . . one of my
positions, that in [punishing only some fighting words and not others], even though it is a subcategory,
technically, of unprotected conduct, [the ordinance] still is picking out an opinion, a disfavored message,
and making that clear through the State." Tr. of Oral Arg. 8. In resting our judgment upon this
contention, we have not departed from our criteria of what is "fairly included" within the petition. See
Arkansas Electric Cooperative Corp. v. Arkansas Pub. Serv. Comm'n, 461 U.S. 375, 382, n. 6, 103 S.Ct.
1905, 1911-1912, n. 6, 76 L.Ed.2d 1 (1983); Brown v. Socialist Workers '74 Campaign Comm., 459 U.S.
287
87, 94, n. 9, 103 S.Ct. 416, 421, n. 9, 74 L.Ed.2d 250 (1982); Eddings v. Oklahoma, 455 U.S. 104, 113, n. 9,
102 S.Ct. 869, 876, n. 9, 71 L.Ed.2d 1 (1982); see generally R. Stern, E. Gressman, & S. Shapiro, Supreme
Court Practice 361 (6th ed. 1986).
4
Justice WHITE concedes that a city council cannot prohibit only those legally obscene works that contain
criticism of the city government, post, at 406, but asserts that to be the consequence, not of the First
Amendment, but of the Equal Protection Clause. Such content-based discrimination would not, he
asserts, "be rationally related to a legitimate government interest," ibid. But of course the only reason
that government interest is not a "legitimate" one is that it violates the First Amendment. This Court
itself has occasionally fused the First Amendment into the Equal Protection Clause in this fashion, but at
least with the acknowledgment (which Justice WHITE cannot afford to make) that the First Amendment
underlies its analysis. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289-2290,
33 L.Ed.2d 212 (1972) (ordinance prohibiting only nonlabor picketing violated the Equal Protection
Clause because there was no "appropriate governmental interest" supporting the distinction inasmuch
as "the First Amendment means that government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content"); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65
L.Ed.2d 263 (1980). See generally Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502
U.S. ----, ---- - ----, 112 S.Ct. 501, 514, 116 L.Ed.2d 476 (1991) (KENNEDY, J., concurring in judgment).
Justice STEVENS seeks to avoid the point by dismissing the notion of obscene anti-government speech as
"fantastical," post, at 418, apparently believing that any reference to politics prevents a finding of
obscenity. Unfortunately for the purveyors of obscenity, that is obviously false. A shockingly hard core
pornographic movie that contains a model sporting a political tattoo can be found, "taken as a whole
[to] lac[k] serious literary, artistic, political, or scientific value," Miller v. California, 413 U.S. 15, 24, 93
S.Ct. 2607, 2614-2615, 37 L.Ed.2d 419 (1973) (emphasis added). Anyway, it is easy enough to come up
with other illustrations of a content-based restriction upon "unprotected speech" that is obviously
invalid: the anti-government libel illustration mentioned earlier, for one. See supra, at 384. And of
course the concept of racist fighting words is, unfortunately, anything but a "highly speculative
hypothetica[l]," post, at 419.
5
288
Although Justice WHITE asserts that our analysis disregards "established principles of First Amendment
law," post, at 415, he cites not a single case (and we are aware of none) that even involved, much less
considered and resolved, the issue of content discrimination through regulation of "unprotected"
speech though we plainly recognized that as an issue in Ferber. It is of course contrary to all traditions of
our jurisprudence to consider the law on this point conclusively resolved by broad
language in cases where the issue was not presented or even envisioned.
6
Justice STEVENS cites a string of opinions as supporting his assertion that "selective regulation of speech
based on content" is not presumptively invalid. Post, at 421-422. Analysis reveals, however, that they do
not support it. To begin with, three of them did not command a majority of the Court, Young v.
American Mini Theatres, Inc., 427 U.S. 50, 63-73, 96 S.Ct. 2440, 2448-2454, 49 L.Ed.2d 310 (1976)
(plurality); FCC v. Pacifica Foundation, 438 U.S. 726, 744-748, 98 S.Ct. 3026, 3037-3040, 57 L.Ed.2d 1073
(1978) (plurality); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974)
(plurality), and two others did not even discuss the First Amendment, Morales v. Trans World Airlines,
Inc., 504 U.S. ----, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); Jacob Siegel Co. v. FTC, 327 U.S. 608, 66 S.Ct.
758, 90 L.Ed. 888 (1946). In any event, all that their contents establish is what we readily concede: that
presumptive invalidity does not mean invariable invalidity, leaving room for such exceptions as
reasonable and viewpoint-neutral content-based discrimination in nonpublic forums, see Lehman,
supra, 418 U.S., at 301-304, 94 S.Ct., at 2716-2718; see also Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985), or with respect to
certain speech by government employees, see Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37
L.Ed.2d 830 (1973); see also CSC v. Letter Carriers, 413 U.S. 548, 564-567, 93 S.Ct. 2880, 2889-2891, 37
L.Ed.2d 796 (1973).
7
St. Paul has not argued in this case that the ordinance merely regulates that subclass of fighting words
which is most likely to provoke a violent response. But even if one assumes (as appears unlikely) that the
categories selected may be so described, that would not justify selective regulation under a "secondary
effects" theory. The only reason why such expressive conduct would be especially correlated with
violence is that it conveys a particularly odious message; because the "chain of causation" thus
necessarily "run[s] through the persuasive effect of the expressive component" of the conduct, Barnes v.
289
Glen Theatre, 501 U.S. ----, ----, 111 S.Ct. 2456, 2470-2471, 115 L.Ed.2d 504 (1991) (SOUTER, J.,
concurring in judgment), it is clear that the St. Paul ordinance regulates on the basis of the "primary"
effect of the speech—i.e., its persuasive (or repellant) force.
8
A plurality of the Court reached a different conclusion with regard to the Tennessee anti-electioneering
statute considered earlier this Term in Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5
(1992). In light of the "logical connection" between electioneering and the State's compelling interest in
preventing voter intimidation and election fraud—an inherent connection borne out by a "long history"
and a "wide-spread and time-tested consensus," id., at 206, 208, 112 S.Ct., at 1855-1858—the plurality
concluded that it was faced with one of those "rare case[s]" in which the use of a facially content-based
restriction was justified by interests unrelated to the suppression of ideas, id., at 211, 112 S.Ct., at 18571858; see also id., at 213, 112 S.Ct., at 1859 (KENNEDY, J., concurring). Justice WHITE and Justice
STEVENS are therefore quite mistaken when they seek to convert the Burson plurality's passing
comment that "[t]he First Amendment does not require States to regulate for problems that do not
exist," id., at ----, 112 S.Ct., at 1856, into endorsement of the revolutionary proposition that the
suppression of particular ideas can be justified when only those ideas have been a source of trouble in
the past. Post, at 405 (WHITE, J.); post, at 434 (STEVENS, J.).
***
1
The Court granted certiorari to review the following questions:
"1. May a local government enact a content-based, 'hate-crime' ordinance prohibiting the display of
symbols, including a Nazi swastika or a burning cross, on public or private property, which one knows or
has reason to know arouses anger, alarm, or resentment in others on the basis of race, color, creed,
religion, or gender without violating overbreadth and vagueness principles of the First Amendment to
the United States Constitution?
"2. Can the constitutionality of such a vague and substantially overbroad content-based restraint of
expression be saved by a limiting construction, like that used to save the vague and overbroad contentneutral laws, restricting its application to 'fighting words' or 'imminent lawless action?' " Pet. for Cert. i.
290
It has long been the rule of this Court that "[o]nly the questions set forth in the petition, or fairly
included therein, will be considered by the Court." This Court's Rule 14.1(a). This Rule has served to
focus the issues presented for review. But the majority reads the Rule so expansively that any First
Amendment theory would appear to be "fairly included" within the questions quoted above.
Contrary to the impression the majority attempts to create through its selective quotation of
petitioner's briefs, see ante, at 381-382, n. 3, petitioner did not present to this Court or the Minnesota
Supreme Court anything approximating the novel theory the majority adopts today. Most certainly
petitioner did not "reiterat[e]" such a claim at argument; he responded to a question from the bench.
Tr. of Oral Arg. 8. Previously, this Court has shown the restraint to refrain from deciding cases on the
basis of its own theories when they have not been pressed or passed upon by a state court of last resort.
See, e.g., Illinois v. Gates, 462 U.S. 213, 217-224, 103 S.Ct. 2317, 2321-2325, 76 L.Ed.2d 527 (1983).
Given this threshold issue, it is my view that the Court lacks jurisdiction to decide the case on the
majority rationale. Cf. Arkansas Elec. Cooperative Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375,
382, n. 6, 103 S.Ct. 1905, 1911, n. 6, 76 L.Ed.2d 1 (1983). Certainly the preliminary jurisdictional and
prudential concerns are sufficiently weighty that we would never have granted certiorari, had petitioner
sought review of a question based on the majority's decisional theory.
2
"In each of these areas, the limits of the unprotected category, as well as the unprotected character of
particular communications, have been determined by the judicial evaluation of special facts that have
been deemed to have constitutional significance." Bose Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485, 504-505, 104 S.Ct. 1949, 1961-1962, 80 L.Ed.2d 502 (1948).
3
The assortment of exceptions the Court attaches to its rule belies the majority's claim, see ante, at 387,
that its new theory is truly concerned with content discrimination. See Part I(C), infra (discussing the
exceptions).
4
This does not suggest, of course, that cross burning is always unprotected. Burning a cross at a political
rally would almost certainly be protected expression. Cf. Brandenburg v. Ohio, 395 U.S. 444, 445, 89
S.Ct. 1827, 1828, 23 L.Ed.2d 430 (1969). But in such a context, the cross burning could not be
291
characterized as a "direct personal insult or an invitation to exchange fisticuffs," Texas v. Johnson, 491
U.S. 397, 409, 109 S.Ct. 2533, 2542, 105 L.Ed.2d 342 (1989), to which the fighting words doctrine, see
Part II, infra, applies.
5
The majority relies on Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), in arguing that
the availability of content-neutral alternatives " 'undercut[s] significantly' " a claim that content-based
legislation is " 'necessary to serve the asserted [compelling] interest.' " Ante, at 395 (quoting Boos,
supra, at 329, 108 S.Ct., at 1168, and Burson v. Freeman, 504 U.S. ----, ----, 112 S.Ct. 1846, 1852, 119
L.Ed.2d 5 (plurality)). Boos does not support the majority's analysis. In Boos, Congress already had
decided that the challenged legislation was not necessary, and the Court pointedly deferred to this
choice. 485 U.S., at 329, 108 S.Ct., at 1168. St. Paul lawmakers have made no such legislative choice.
Moreover, in Boos, the Court held that the challenged statute was not narrowly tailored because a less
restrictive alternative was available. Ibid. But the Court's analysis today turns Boos inside-out by
substituting the majority's policy judgment that a more restrictive alternative could adequately serve the
compelling need identified by St. Paul lawmakers. The result would be: (a) a statute that was not
tailored to fit the need identified by the government; and (b) a greater restriction on fighting words,
even though the Court clearly believes that fighting words have protected expressive content. Ante, at
384-385.
6
Earlier this Term, seven of the eight participating members of the Court agreed that strict scrutiny
analysis applied in Simon & Schuster, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991), in which we
struck down New York's "Son of Sam" law, which required "that an accused or convicted criminal's
income from works describing his crime be deposited in an escrow account." Id., at ----, 112 S.Ct., at 504.
7
The Burson dissenters did not complain that the plurality erred in applying strict scrutiny; they objected
that the plurality was not sufficiently rigorous in its review. 504 U.S., at ----, 112 S.Ct., at 1865 (STEVENS,
J., dissenting).
8
292
Justice SCALIA concurred in the judgment in Burson, reasoning that the statute, "though content-based,
is constitutional [as] a reasonable, viewpoint-neutral regulation of a nonpublic forum." Id., at 214, 112
S.Ct., at 1848. However, nothing in his reasoning in the present case suggests that a content-based ban
on fighting words would be constitutional were that ban limited to nonpublic fora. Taken together, the
two opinions suggest that, in some settings, political speech, to which "the First Amendment 'has its
fullest and most urgent application,' " is entitled to less constitutional protection than fighting words. Eu
v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d
271 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35
(1971)).
9
The majority is mistaken in stating that a ban on obscene works critical of government would fail equal
protection review only because the ban would violate the First Amendment. Ante, at 384-385, n. 4.
While decisions such as Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212
(1972), recognize that First Amendment principles may be relevant to an equal protection claim
challenging distinctions that impact on protected expression, id., at 95-99, 92 S.Ct., at 2289-2292, there
is no basis for linking First and Fourteenth Amendment analysis in a case involving unprotected
expression. Certainly, one need not resort to First Amendment principles to conclude that the sort of
improbable legislation the majority hypothesizes is based on senseless distinctions.
10
Indeed, such a law is content based in and of itself because it distinguishes between threatening and
nonthreatening speech.
11
The consequences of the majority's conflation of the rarely-used secondary effects standard and the
O'Brien test for conduct incorporating "speech" and "nonspeech" elements, see generally United States
v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968), present another
question that I fear will haunt us and the lower courts in the aftermath of the majority's opinion.
12
Petitioner can derive no support from our statement in Virginia v. American Bookseller's Assn., 484 U.S.
383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988), that "the statute must be 'readily susceptible' to the
293
limitation; we will not rewrite a state law to conform it to constitutional requirements." In American
Bookseller's, no state court had construed the language in dispute. In that instance, we certified a
question to the state court so that it would have an opportunity to provide a narrowing interpretation.
Ibid. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975), the
other case upon which petitioner principally relies, we observed not only that the ordinance at issue was
not "by its plain terms . . . easily susceptible of a narrowing construction," but that the state courts had
made no effort to restrict the scope of the statute when it was challenged on overbreadth grounds.
13
Although the First Amendment protects offensive speech, Johnson v. Texas, 491 U.S., at 414, 109 S.Ct.,
at 2544, it does not require us to be subjected to such expression at all times, in all settings. We have
held that such expression may be proscribed when it intrudes upon a "captive audience." Frisby v.
Schultz, 487 U.S. 474, 484-485, 108 S.Ct. 2495, 2502-2503, 101 L.Ed.2d 420 (1988); FCC v. Pacifica
Foundation, 438 U.S. 726, 748-749, 98 S.Ct. 3026, 3040-3041, 57 L.Ed.2d 1073 (1978). And expression
may be limited when it merges into conduct. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20
L.Ed.2d 672 (1968); cf. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d
49 (1986). However, because of the manner in which the Minnesota Supreme Court construed the St.
Paul ordinance, those issues are not before us in this case.
1
The Court disputes this characterization because it has crafted two exceptions, one for "certain media or
markets" and the other for content discrimination based upon "the very reason that the entire class of
speech at issue is proscribable." Ante, at 388. These exceptions are, at best, ill-defined. The Court does
not tell us whether, with respect to the former, fighting words such as cross-burning could be proscribed
only in certain neighborhoods where the threat of violence is particularly severe, or whether, with
respect to the second category, fighting words that create a particular risk of harm (such as a race riot)
would be proscribable. The hypothetical and illusory category of these two exceptions persuades me
that either my description of the Court's analysis is accurate or that the Court does not in fact mean
much of what it says in its opinion.
5
"A word," as Justice Holmes has noted, "is not a crystal, transparent and unchanged, it is the skin of a
living thought and may vary greatly in color and content according to the circumstances and the time in
294
which it is used." Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918); see also
Jacobellis v. Ohio, 378 U.S. 184, 201, 84 S.Ct. 1676, 1685, 12 L.Ed.2d 793 (1964) (Warren, C.J.,
dissenting).
6
Cf. In re Chase, 468 F.2d 128, 139-140 (CA7 1972) (Stevens, J., dissenting) (arguing that defendant who,
for reasons of religious belief, refused to rise and stand as the trial judge entered the courtroom was not
subject to contempt proceedings because he was not present in the courtroom "as a matter of choice").
7
Although the Court has sometimes suggested that subject-matter based and viewpoint-based
regulations are equally problematic, see, e.g., Consolidated Edison Co. of N.Y. v. Public Service Comm'n
of N.Y., 447 U.S., at 537, 100 S.Ct., at 2338, our decisions belie such claims.
8
The Court makes much of St. Paul's description of the ordinance as regulating "a message." Ante, at 393.
As always, however, St. Paul's argument must be read in context:
"Finally, we ask the Court to reflect on the 'content' of the 'expressive conduct' represented by a
'burning cross.' It is no less than the first step in an act of racial violence. It was and unfortunately still is
the equivalent of [the] waving of a knife before the thrust, the pointing of a gun before it is fired, the
lighting of the match before the arson, the hanging of the noose before the lynching. It is not a political
statement, or even a cowardly statement of hatred. It is the first step in an act of assault. It can be no
more protected than holding a gun to a victim['s] head. It is perhaps the ultimate expression of 'fighting
words.' " App. to Brief for Petitioner C-6.
9
The Court contends that this distinction is "wordplay," reasoning that "[w]hat makes [the harms caused
by race-based threats] distinct from [the harms] produced by other fighting words is . . . the fact that
[the former are] caused by a distinctive idea." Ante, at 392-393 (emphasis added). In this way, the Court
concludes that regulating speech based on the injury it causes is no different from regulating speech
based on its subject matter. This analysis fundamentally miscomprehends the role of "race, color, creed,
religion [and] gender" in contemporary American society. One need look no further than the recent
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social unrest in the Nation's cities to see that race-based threats may cause more harm to society and to
individuals than other threats. Just as the statute prohibiting threats against the President is justifiable
because of the place of the President in our social and political order, so a statute prohibiting race-based
threats is justifiable because of the place of race in our social and political order. Although it is
regrettable that race occupies such a place and is so incendiary an issue, until the Nation matures
beyond that condition, laws such as St. Paul's ordinance will remain reasonable and justifiable.
10
Cf. FCC v. League of Women Voters of California, 468 U.S. 364, 418, 104 S.Ct. 3106, 3137, 82 L.Ed.2d 278
(1984) (STEVENS, J., dissenting) ("In this case . . . the regulation applies . . . to a defined class of . . .
licensees [who] represent heterogenous points of view. There is simply no sensible basis for considering
this regulation a viewpoint restriction—or . . . to condemn it as content-based'—because it applies
equally to station owners of all shades of opinion").
296