BEAUHARNAIS v.

PEOPLE of the STATE OF ILLINOIS.

April 28, 1952.

See 343 U.S. 988, 72 S.Ct. 1070.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

The petitioner was convicted upon information in the Municipal Court of Chicago of violating § 224a of Division 1 of the Illinois Criminal Code, Ill.Rev.Stat.1949, c. 38, § 471. He was fined $200. The section provides:

'It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. * * *'

Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the

[252]

same Clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant's conviction. 408 Ill. 512, 97 N.E.2d 343. We granted certiorari in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups. 342 U.S. 809, 72 S.Ct. 39.

The information, cast generally in the terms of the statute, charged that Beauharnais 'did unlawfully * * * exhibit in public places lithographs, which publications portray depravity, criminality, unchastity or lack of virtue of citizens of Negrorace and color and which exproses (sic) citizens of Illinois of the Negro race and color to contempt, derision, or obloquy * * *.' The lithograph complained of was a leaflet setting forth a petition calling on the Mayor and City Council of Chicago 'to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro * * *.' Below was a call for 'One million self respecting white people in Chicago to unite * * *.' with the statement added that 'If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions * * * rapes, robberies, knives, guns and marijuana of the negro, surely will.' This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc.

The testimony at the trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; that, at a meeting on January 6, 1950, he passed out bundles of the lithographs in question, together with other literature, to volunteers for distribution on downtown Chicago street corners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that

[253]

the leaflets were in fact distributed on January 7 in accordance with his plan and instructions. The court, together with other charges on burden of proof and the like, told the jury 'if you find * * * that the defendant, Joseph Beauharnais, did * * * manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph * * * then you are to find the defendant guilty * * *.' He refused to charge the jury, as requested by the defendant, that in order to convict they must find 'that the article complained of was likely to produce a clear and present danger of a serious substantive evil that rises for above public inconvenience, annoyance or unrest.' Upon this evidence and these instructions, the jury brought in the conviction here for review.

The statute before us is not a catchall enactment left at large by the State court which applied it. ***. It is a law specifically directed at a defined evil, its language drawing from history and practice in Illinois and in more than a score of other jurisdictions a meaning confirmed by the Supreme Court of that State in upholding this conviction. We do not, therefore, parse the statute as grammarians or treat it as an abstract exercise in lexicography. ***

The Illinois Supreme Court tells us that § 224a 'is a form of criminal libel law'. 408 Ill. 512, 517, 97 N.E.2d 343, 346. The defendant, the trial court and the Supreme Court consistently treated it as such. The defendant offered evidence tending to prove the truth of parts of the utterance, and the courts below considered and disposed of

[254]

this offer in terms of ordinary criminal libel precedents.1 Section 224a does not deal with the defense of truth, but by the Illinois Constitution, Art. II, § 4, S.H.A., 'in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.' See also Ill.Rev.Stat., 1949, c. 38, § 404. Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States.2 Moreover, the Supreme Court's characterization of the words prohibited by the statute as those 'liable to cause violence and disorder' paraphrases the traditional justification for punishing libels criminally, namely their 'tendency to cause breach of the peace.'3

Libel of an individual was a common-law crime, and thus criminal in the colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that

[255]

the crime of libel be abolished.4 Today, every American jurisdiction--the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico--punish libels directed at individuals.5 'There are certain well-defined

----------

4. For a brief account of this development see Warren, History of the American Bar, 236Ä239. See also correspondence between Chief Justice Cushing of Massachusetts and John Adams, published in 27 Mass.L.Q. 11Ä16 (Oct.1942). Jefferson explained in a letter to Abigail Adams, dated September 11, 1804, that to strike down the Alien and Sedition Act would not 'remove all restraint from the over-whelming 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.' See Dennis v. United States, 341 U.S. 494, 522, note 4, 71 S.Ct. 857, 873, 95 L.Ed. 1137. See Miller, Crisis in Freedom, 168Ä169, 231Ä232. See also provisions as to criminal libel in Edward Livingston's famous draft System of Penal Law for Louisiana, 2 Works of Edward Livingston 100Ä108.

5. In eight States the offense is punished as at common law, without legislative enactment. State v. Roberts, 2 Marv., Del., 450, 43 A. 252; Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907; Robinson v. State, 108 Md. 644, 71 A. 433; Commonwealth v. Canter, 269 Mass. 359, 168 N.E. 790; State v. Burnham, 9 N.H. 34; State v. Spear, 13 R.I. 324; State v. Sutton, 74 Vt. 12, 52 A. 116; State v. Payne, 87 W.Va. 102, 104 S.E. 288, 19 A.L.R. 1465. Twelve other jurisdictions make 'libel' a crime by statute, without defining the term. Ala.Code 1940, Tit. 14, § 347; Alaska Comp.Laws Ann.1949, § 65Ä4Ä28; D.C.Code 1940, § 22Ä2301; Fla.Stat.Ann. § 836.01; Burns' Ind.Stat.1933, § 10Ä3201; Miss.Code 1942, § 2268; Neb.Rev.Stat.1943, § 28Ä440; N.J.Stat.Ann. § 2:146Ä1; N.C.Gen.Stat.1943, § 14Ä47; Page's Ohio Gen.Code 1939, § 13383; Wis.Stat.1949, § 348.41; Wyo.Comp.Stat.1945, § 9Ä1601. Thus, twenty American jurisdictions punish 'libel' as defined by the case-by-case common-law development.

The remaining jurisdictions have sought to cast the common-law definition in a statutory form of words. Two formulas have been popular. Eleven jurisdictions, Illinois among them, have accepted with minor variations the following:

'A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury.' ***

The other version, again with minor variations, has found favor in twelve jurisdictions.

[256]

and narrowly limited classes of speech, the prevention and punishment of which has 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 utter-

[257]

ances 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. '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. State of Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213.' Such were the views of a unanimous Court in Chaplinsky v. State of New Hampshire, supra, 315 U.S. at pages 571Ä572, 62 S.Ct. at page 769.6

No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and

[258]

guns, and user of marijuana. The precise question before us, then, is whether the protection of 'liberty' in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels --as criminal libel has been defined, limited and constitutionally recognized time out of mind-- directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law.7 It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes.8 We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this a wilful and purposeless restriction unrelated to the peace and well-being of the State.

Illinois did not have to look beyond her own borders or await the tragic experience of the last three dec-

[259]

ades9 to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Love-joy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction. 10 In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part.11 The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groupsÄforeign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allure-

[260]

ments of northern claims.12 Nine years erlier, in the very city where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroes homeless and shocked citizens into action far beyond the borders of the State.13 Less than a month before the bill was enacted, East St. Louis had seen a day's rioting, prelude to an out-break, only four days after the bill became law, so bloody that it led to Congressional investigation.14 A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in

[261]

the summer of 1919.15 Nor has tension and violence between the groups defined in the statute been limited in Illinois to clashes between whites and Negroes.

In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. ***

It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion

[262]

violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern Know-Nothings.17 Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the para-dox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. ***

Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 189, 42 S.Ct. 72, 73, 66 L.Ed. 189. Such group-protection on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractly recognized as belonging

[263]

to its members. It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois Legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved.

We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party.18

Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. 'While this Court sits' it retains and exercises authority to nullify action which encroaches on freedom of utter-

----------

18. It deserves emphasis that there is no such attempt in this statute. The rubric 'race, color, creed or religion' which describes the type of group, libel of which is punishable, has attained too fixed a meaning to permit political groups to be brought within it. If a statute sought to outlaw libels of political parties, quite different problems not now before us would be raised. For one thing, the whole doctrine of fair comment as indispensable to the democratic political process would come into play. See People v. Fuller, supra, 238 Ill. at page 125, 87 N.E. 336 at pages 338Ä339; Commonwealth v. Pratt, 208 Mass. 553, 559, 95 N.E. 105, 106. Political parties, like public men, are, as it were, public property.

[264]

ance under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.

The scope of the statute before us, as construed by the Illinois court, disposes of the contention that the conduct prohibited by the law is so ill-defined that judges and ***

It is suggested that while it was clearly within the constitutional power of Illinois to punish this utterance if the proceeding were properly safeguarded, in this particular case Illinois denied the defendant rights which the Due Process Clause commands. Specifically, it is argued that the defendant was not permitted to raise at the trial defenses constitutionally guaranteed in a criminal libel prosecution: (1) the defense of truth; (2) justification of the utterance as 'fair comment'; and (3) its privilege as a means for redressing grievances.

Neither by proffer of evidence, requests for instructions, nor motion before or after verdict did the defendant seek to justify his utterance as 'fair comment' or as privileged. Nor has the defendant urged as a ground for reversing his

[265]

conviction in this Court that his opportunity to make those defenses was denied below. And so, whether a prosecution for libel of a racial or religious group is unconstitutionally invalid where the State did deny the defendant such opportunities is not before us.19 Certainly the State may cast the burden of justifying what is patent defamation upon the defamer. The benefits of hypothetical defenses, never raised below or pressed upon us, are not to be invoked in the abstract.

As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made 'with good motives and for justifable ends'. Ill.Const. Art. II, § 4.20 Both elements are necessary if the defense is to prevail. What has been called 'the common sense of American criminal law,' as formulated, with regard to necessary safeguards in criminal libel prosecutions, in the New York Constitutional of 1821, Art. VII, § 8, has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country

[266]

would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement. Assuming that defendant's offer of proof directed to a part of the defense was adequate,21 it did not satisfy the entire requirement which Illinois could exact.22

Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.

We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack.23 But

[267]

it bears repeating--although it should not-- that our finding that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law.

Affirmed.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.

This case is here because Illinois inflicted criminal punishment on Beauharnais for causing the distribution of leaflets in the city of Chicago. The conviction rests on the leaflet's contents, not on the time, manner or place of distribution. Beauharnais is head of an organization that opposes amalgamation and favors segregation of white and colored people. After discussion, an assembly of his group decided to petition the mayor and council of Chicago to pass laws for segregation. Volunteer members of the group agreed to stand on street corners, solicit signers to petitions addressed to the city authorities, and distribute leaflets giving information about the group, its beliefs and its plans. In carrying out this program a solicitor handed out a leaflet which was the basis of this prosecution. ***

I.

That Beauharnais and his group were making a genuine effort to petition their elected representatives is not disputed. Even as far back as 1689, the Bill of Rights exacted of William & Mary said: 'It is the Right of the Subjects to petition the King, and all Commitments and

[268]

Prosecutions for such petitioning are illegal.'1 And 178 years ago the Declaration of Rights of the Continental Congress proclaimed to the monarch of that day that his American subjects had 'a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.'2 After independence was won, Americans stated as the first unequivocal command of their Bill of Rights: 'Congress shall make no law * * * 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.' Without distortion, this First Amendment could not possibly be read so as to hold that Congress has power to punish Beauharnais and others for petitioning Congress as they have here sought to petition the Chicago authorities. See e.g., Bridges v. State of California, 314 U.S. 252, 277, 62 S.Ct. 190, 201, 86 L.Ed. 192. And we have held in a number of prior cases that the Fourteenth Amendment makes the specific prohibitions of the First Amendment equally applicable to the states.3

In view of these prior holdings, how does the Court justify its holding today that states can punish people for exercising the vital freedoms intended to be safeguarded from suppression by the First Amendment? The prior holdings are not referred to; the Court simply acts on the bland assumption that the First Amendment is wholly irrelevant. It is not even accorded the respect of a passing mention. This follows logically, I suppose,

[269]

from recent constitutional doctrine which appears to measure state laws solely by this Court's notions of civilized 'canons of decency,' reasonableness, etc. See, e.g., Rochin v. People of California, 342 U.S. 165, 169, 72 S.Ct. 205, 207. Under this 'reasonableness' test, state laws abridging First Amendment freedoms are sustained if found to have a 'rational basis.' But in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, we said:

'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.'

Today's case degrades First Amendment freedoms to the 'rational basis' level. It is now a certainty that the new 'due process' coverall offers far less protection to liberty than would adherence to our former cases compelling states to abide by the unequivocal First Amendment command that its defined freedoms shall not be abridged.

The Court's holding here and the constitutional doctrine behind it leave the rights of assembly, petition,

[270]

speech and press almost completely at the mercy of state legislative, executive, and judicial agencies.***

II.

The Illinois statute upheld by the Court makes it a crime:

1. for 'any person, firm or corporation',

2. to 'manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place',

[271]

3. any 'lithograph (construed to include any printed matter), moving picture, play, drama or sketch,'

4. which portrays 'depravity, criminality, unchastity, or lack of virtue',

5. of 'a class of citizens, of any race, color, creed or religion',

6. and exposes such a class to 'contempt, derision, or obloquy',

7. or 'is productive of breach of the peace or riots.'

This statute imposes state censorship over the theater, moving pictures, radio, television, leaflets, magazines, books and newspapers. No doubt the statute is broad enough to make criminal the 'publication, sale, presentation or exhibition' of many of the world's great classics, both secular and religious.

The Court condones this expansive state censorship by painstakingly analogizing it to the law of criminal libel. As a result of this refined analysis, the Illinois statute emerges labeled a 'group libel law.' This label may make the Court's holding more palatable for those who sustain it, but the sugar-coating does not make the censorship less deadly. However tagged, the Illinois law is not that criminal libel which has been 'defined, limited and constitutionally recognized time out of mind'.4 For as

[272]

'CONSTITUTIONALLY RECOGNIZED' THAT CRIME has provided for punishment of false, malicious, scurrilous charges against individuals, not against huge groups. This limited scope of the law of criminal libel is of no small importance. It has confined state punishment of speech and expression to the narrowest of areas involving nothing more than purely private feuds. Every expansion of the law of criminal libel so as to punish discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment.

Prior efforts to expand the scope of criminal libel beyond its traditional boundaries have not usually met with widespread popular acclaim. 'Seditious libel' was such an expansion and it did have its day, particularly in the English Court of Star Chamber. But the First Amendment repudiated seditious libel for this country. And one need only glance through the parliamentary discussion of Fox's Libel Law passed in England in 1792, to sense the bad odor of criminal libel in that country even when confined to charges against individuals only.

The Court's reliance on Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 770, 86 L.Ed. 1031, is also misplaced. New Hampshire had a state law making it an offense to direct insulting words at an individual on a public street. Chaplinsky had violated that law by calling a man vile names 'face-to-face'. We pointed out in that context that the use of such 'fighting' words was not an essential part of exposition of ideas. Whether the words used in their context here are 'fighting' words in the same sense is doubtful, but whether so or

[273]

not they are not addressed to or about individuals. Moreover, the leaflet used here was also the means adopted by an assembled group to enlist interest in their efforts to have legislation enacted. And the fighting words were but a part of arguments on questions of wide public interest and importance. Freedom of petition, assembly, speech and press could be greatly abridged by a practice of meticulously scrutinizing every editorial, speech, sermon or other printed matter to extract two or three naughty words on which to hang charges of 'group libel.' The Chaplinsky case makes no such broad inroads on First Amendment freedoms. Nothing Mr. Justice Murphy wrote for the Court in that case or in any other case justifies any such inference.

Unless I misread history the majority is giving libel a more expansive scope and more respectable status than it was ever accorded even in the Star Chamber. For here it is held to be punishable to give publicity to any picture, moving picture, play, drama or sketch, or any printed matter which a judge may find unduly offensive to any race, color, creed or religion. In other words, in arguing for or against the enactment of laws that may differently affect huge groups, it is now very dangerous indeed to say something critical of one of the groups. And any 'person, firm or corporation' can be tried for this crime. 'Person, firm or corporation' certainly includes a book publisher, newspaper, radio or television station, candidate or even a preacher.

It is easy enough to say that none of this latter group have been proceeded against under the Illinois Act. And they have notÄyet. But emotions bubble and tempers flare in racial and religious controversies, the kind here involved. It would not be easy for any court, in good conscience, to narrow this Act so as to exclude from it any of those I have mentioned. Furthermore, persons tried under the Act could not even get a jury trial except

[274]

as to the bare fact of publication. Here, the court simply charged the jury that Beauharnais was guilty if he had caused distribution of the leaflet. Such trial by judge rather than by jury was outlawed in England in 1792 by Fox's Libel Law.

This Act sets up a system of state censorship which is at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights. The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books and even to the burning of 'witches.'

No rationalization on a purely legal level can conceal the fact that state laws like this one present a constant overhanging threat to freedom of speech, press and religion. Today Beauharnais is punished for publicly expressing strong views in favor of segregation. Ironically enough, Beauharnais, convicted of crime in Chicago, would probably be given a hero's reception in many other localities, if not in some parts of Chicago itself. Moreover, the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and nonsegregation. What Beauharnais said in his leaflet is mild compared with usual arguments on both sides of racial controversies.

We are told that freedom of petition and discussion are in no danger 'while this Court sits.' This case raises considerable doubt. Since those who peacefully petition for changes in the law are not to be protected 'while this Court sits,' who is? I do not agree that the Constitution leaves freedom of petition, assembly, speech, press or worship at the mercy of a case-by-case, day-by-day majority of this Court. I had supposed that our people could rely for their freedom on the Constitution's commands, rather

[275]

than on the grace of this Court on an individual case basis. To say that a legislative body can, with this Court's approval, make it a crime to petition for and publicly discuss proposed legislation seems as farfetched to me as it would be to say that a valid law could be enacted to punish a candidate for President for telling the people his views. I think the First Amendment, with the Fourteenth, 'absolutely' forbids such laws without any 'ifs' or 'buts' or 'whereases.' Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems to be the danger of public discussion, holds the scales are tipped on the side of state suppression, and upholds state censorship. This method of decision offers little protection to First Amendment liberties 'while this Court sits.'

If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark:

'Another such victory and I am undone.'

[276]

[277]

Mr. Justice REED, with whom Mr. Justice DOUGLAS joins, dissenting.

The Fourteenth Amendment of our Constitution forbids that any person be deprived by a state of liberty or property without due process of law. This Illinois conviction subjects petitioner to a fine of $200. The petitioner challenges the validity of the sentence on the ground that his conviction under § 224a, Division 1, of the Illinois Criminal Code1 violates substantive due process. The petition for certiorari phrases the issue thus: 'Is the Illinois statute * * * as construed * * * or applied * * * invalid * * * because it infringes upon the constitutional guarantee of free speech, press and of assemblage as guaranteed' by the Fourteenth Amendment? ***

[283]

The Court speaks at length of the constitutional power of a state to pass group libel laws to protect the public peace. This dissent assumes that power. What is under discussion is whether the conviction of Beauharnais on a general charge of violation of the statute can stand when the statute contains without statutory or judicial definition words of such ambiguous meaning and uncertain connotation as 'virtue,' 'derision,' or 'obloquy.' The Court does not attempt to speak specifically as to that contention.

The importance of a definite ruling on that point is manifest. Racial, religious, and political biases and prejudices lead to charge and countercharge, acrimony and bitterness. If words are to be punished criminally, the Constitution at least requires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction.13

These words - 'virtue,' 'derision,' and 'obloquy' - have neither general nor special meanings well enough known to apprise those within their reach as to limita-

[284]

tions on speech. Compare Connally v. General Construction Co., 269 U.S. 385, 391Ä392, 46 S.Ct. 126, 127Ä128, 70 L.Ed. 322. Philosophers and poets, thinkers of high and low degree from every age and race have sought to expound the meaning of virtue, but each teaches his own conception of the moral excellence that satisfies standards of good conduct. Are the tests of the Puritan or the Cavalier to be applied, those of the city or the farm, the Christian or non-Christian, the old or the young? Does the Bill of Rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not. A general and equal enforcement of this law would restrain the mildest expressions of opinion in all those areas where 'virtue' may be thought to have a role. Since this judgment may rest upon these vague and undefined words, which permit within their scope the punishment of incidents secured by the guarantee of free speech, the conviction should be reversed.

Mr. Justice DOUGLAS, dissenting.

Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus.

I would also be willing to concede that even without the element of conspiracy there might be times and occasions when the legislative or executive branch might call a halt to inflammatory talk, such as the shouting of 'fire' in a school or a theatre.

My view is that if in any case other public interests are to override the plain command of the First Amendment,

[285]

the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster.

*** The First Amendment says that freedom of speech, freedom of press, and the free exercise of religion shall not be abridged. That is a negation of power on the part of each and every department of government. Free speech, free press, free exercise of religion are placed separate and apart; they are above and beyond the police power; they are not subject to regulation in the manner of factories, slums, apartment houses, production of oil, and the like.

The Court in this and in other cases places speech under an expanding legislative control. Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be hailed before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group - all of these are caught in the mesh of today's decision. Debate and argument even in the courtroom are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intem-

[287]

perate speech is a distinctive characteristic of man. Hot-heads blow off and release destructive energy in the process. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for retrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be. It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment - a constitutional interpretation which puts free speech under the legislative thumb. It reflects an influence moving ever deeper into our society. It is notice to the legislatures that they have the power to control unpopular blocs. It is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says.

Mr. Justice JACKSON, dissenting.

***

In few subjects so much as libel does local law, in spite of varying historical influences, afford a consensus of American legal opinion as to what is reasonable and essential to the concept of ordered government. The boundaries are roughly outlined, to be sure, and cannot be stated or applied with mathematical precision, but those widely accepted state constitutional provisions on which is superimposed the 'clear and present danger' test for 'tendency' cases seem to be our best guide.

I agree with the Court that a State has power to bring classes 'of any race, color, creed, or religion' within the protection of its libel laws, if indeed traditional forms do not already accomplish it.20 But I am equally clear that in doing so it is essential to our concept of ordered liberty that the State also protect the accused by those safeguards the necessity for which is verified by legal history.

III.

The Illinois statute, as applied in this case, seems to me to have dispensed with accepted safeguards for the accused. Trial of this case ominously parallels the trial of

[300]

People v. Croswell, supra, in that the Illinois court here instructed the jury, in substance, that if it found that defendant published this leaflet he must be found guilty of criminal libel.

Rulings of the trial court precluded the effort to justify statements of fact by proving their truth. The majority opinion concedes the unvarying recognition by the States that truth plus good motives is a defense in a prosecution for criminal libel. But here the trial court repeatedly refused defendant's offer of proof as to the truth of the matter published. Where an offer to prove the dominant element of a defense is rejected as immaterial, we can hardly refuse to consider defendant's constitutional question because he did not go through the useless ceremony of offering proof of a subsidiary element of the defense. If the court would not let him try to prove he spoke truth, how could he show that the spoke truth for good ends?

***. Society has an interest in preserving truth as a justification, however obnoxious the effort may be. A publication which diffuses its attack over unnamed and impersonal multitudes is likely to be harder to justify than one which concentrates its attack on named individuals, but the burden may properly be cast on an accused and punishment follow failure to carry it.

***

In this case, neither the court nor jury found or were required to find any injury to any person, or group, or to the public peace, nor to find any probability, let alone any clear and present danger, of injury to any of these. Even though no individuals were named or described as targets of this pamphlet, if it resulted in a riot or caused injury to any individual Negro, such as being refused living quarters in a particular section, house or apartment, or being refused employment, certainly there would be no constitutional obstacle to imposing civil or criminal liability for actual results. But in this case no actual violence and no specific injury was charged or proved.

The leaflet was simply held punishable as criminal libel per se irrespective of its actual or probable consequences. No charge of conspiracy complicates this case. The words themselves do not advocate the commission of any crime. The conviction rests on judicial attribution of a likelihood of evil results. The trial court, however, refused to charge the jury that it must find some 'clear and present danger,' and the Supreme Court of Illinois sustained conviction because, in its opinion, the words used had a tendency to cause a breach of the peace.***

Punishment of printed words, based on their tendency either to cause breach of the peace or injury to persons or groups, in my opinion, is justifiable only if the prosecution survives the 'clear and present danger' test. It is the most just and workable standard yet evolved for determining criminality of words whose injurious or inciting tendencies are not demonstrated by the event but are ascribed to them on the basis or probabilities.