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BLACK, J., dissenting.
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."
[For appendix to opinion of MR. JUSTICE BLACK, see post, p. 276.]
[For dissenting opinion of MR. JUSTICE REED, see post, p. 277.]
[For dissenting opinion of MR. JUSTICE DOUGLAS, see post, p. 284.]
[For dissenting opinion of MR. JUSTICE JACKSON, see post, p. 287.]
Appendix to Opinion of BLACK, J., dissenting. 343 U.S.
APPENDIX TO OPINION OF MR. JUSTICE BLACK.
PEOPLES EXHIBIT 3
PRESERVE and PROTECT WHITE NEIGHBORHOODS!
FROM THE CONSTANT AND CONTINUOUS INVASION, HARASSMENT AND
(WE WANT TWO MILLION SIGNATURES OF WHITE MEN AND WOMEN)
To The Honorable Martin H. Kennelly
and City Council of the City of Chicago.
WHEREAS, the white population of the City of Chicago, particularly on the South Side of said city, are seething, nervous and agitated because of the constant and continuous invasion, harassment and encroachment by the Negroes upon them, their property and neighborhoods and
WHEREAS, there have been disastrous incidents within the past year, all of which are fraught with grave consequences and great danger to the Peace and Security of the people, and
WHEREAS, there is great danger to the Government from communism which is rife among the Negroes, and
WHEREAS, we are not against the negro; we are for the white people and the white people are entitled to protection: — We, the undersigned white citizens of the City of Chicago and the State of Illinois, hereby petition the Honorable Martin H. Kennelly, Mayor of the City of Chicago and the Alderman of the City of Chicago, to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro-through the exercise of the Police Power; of the Office of the Mayor of the City of Chicago, and the City Council
ONE MILLION SELF RESPECTING WHITE PEOPLE IN CHICAGO TO UNITE UNDER THE BANNER OF THE WHITE CIRCLE LEAGUE OF AMERICA to oppose the National Campaign now on and supported by TRUMAN'S INFAMOUS CIVIL RIGHTS PROGRAM and many Pro Negro Organizations to amalgamate the black and white races with the object of mongrelizing the white race!
THE WHITE CIRCLE LEAGUE OF AMERICA is the only articulate white voice in America being raised in protest against negro agressions and infiltrations into all white neighborhoods. The white people of Chicago MUST take advantage of this opportunity to become UNITED. If persuasion and the need to prevent the white race from becoming mongrelised by the negro will not unite us, then the aggressions... rapes, robberies, knives, guns and marijuana of the negro, SURELY WILL
The Negro has many national organizations working to push him into the midst of the white people on many fronts. The white race does not have a single organization to work on a NATIONAL SCALE to make its wishes articulate and to assert its natural rights to self-preservation. THE WHITE CIRCLE LEAGUE OF AMERICA proposes to do the job. WE ARE NOT AGAINST THE NEGRO! WE ARE FOR THE WHITE PEOPLE!
We must awaken and protect our white families and neighborhoods before it is too late. Let us work unceasingly to conserve the white man's dignity and rights in America.
THE WHITE CIRCLE LEAGUE OF AMERICA, INC. Joseph Beauharnais, Pres.- FR 2-8633, Suite 808, 82 W. Washington St. VOLUNTEERS NEEDED TO GET 26 SIGNATURES ON PETITION! COME TO HEADQUARTERS!
I wish to be enrolled as a member in THE WHITE CIRCLE LEAGUE OF AMERICA and I will do my best to secure ten (10)
or more members.
THE FIRST LOYALTY OF EVERY
THEY CANNOT WINI
IT WILL BE EASIER TO REVERSE
THE HOUR HAS STRUCK FOR
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? The Supreme Court of Illinois upheld the conviction of petitioner under an information which charged:
"that defendant on January 7, 1950, at the City of Chicago, did unlawfully publish, present and exhibit in public places, lithographs, which publications portray depravity, criminality, unchastity or lack of virtue of citizens of Negro race and color and which exposes citizens of Illinois of the Negro race and
1 "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. Any person, firm or corporation violating any of the provisions of this section, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00), nor more than two hundred dollars ($200.00)."
color to contempt, derision, or obloquy, which more fully appears in Exhibit A, which is attached hereto and made a part thereof." 2
The evidence was sufficient to justify the jury in finding that Beauharnais caused the lithograph referred to in the information to be published and distributed in public places. The jury did so find under certain general instructions as to the proper attitude of jurors but essentially and specifically under the following instruction:
"(1) The Court instructs the jury that if you find from the evidence that the defendant, Joseph Beauharnais, did on or about January 7, 1950 manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph, which was allowed in evidence in this case as Peoples Exhibit Number 3, then you are to find the defendant guilty and fine him not less than $50.00 nor more than $200.00."
Thus, the judge did not leave to the jury but decided himself, doubtless as a matter of law, that the publication of the lithograph violated the statute. No complaint was made of this state method of trial.
At trial, petitioner filed a motion to quash the information and objected to the above specific instruction. He also moved for a peremptory instruction of "not guilty" and for judgment notwithstanding the verdict. All these contentions were overruled by the trial court, and, although the record does not show a precisely pleaded objection to the conviction on the ground that § 224a is unconstitutional, nonetheless the Supreme Court of Illinois treated petitioner's contention that the statute was
2 People v. Beauharnais, 408 Ill. 512, 514, 97 N. E. 2d 343, 344-345. The Exhibit A referred to in the information is the lithograph referred to in the instructions to the jury as People's Exhibit 3.
too vague and by virtue of that fact was so broad that it abridged free speech in violation of the Fourteenth Amendment. The petition for certiorari brings these questions here.
In carrying out its obligation to conform state legal administration to the "fundamental principles of liberty and justice" imposed on the states by the Fourteenth Amendment, this Court has steadily affirmed that the general principle against abridgment of free speech, protected by the First Amendment, is included in the command of the Fourteenth. So important to a constitutional democracy is the right of discussion that any challenge to legislative abridgment of those privileges of a free people calls for careful judicial appraisal. It is when speech becomes an incitement to crime that the right freely to exhort may be abridged. American Communications Assn. v. Douds, 339 U. S. 382, 395; Herndon v. Lowry, 301 U. S. 242, 255.
3408 Ill. 512, at 515-516 and 517, 97 N. E. 2d 343, at 345-346. If the highest court of the state treats the federal question as properly before it, and decides the question, the question is reviewable here, regardless of the manner in which it was raised in the inferior courts of the state. See Whitney v. California, 274 U. S. 357, 361, and cases there cited.
4 Hebert v. Louisiana, 272 U. S. 312, 316; Palko v. Connecticut, 302 U. S. 319; Adamson v. California, 332 U. S. 46, 66.
5 Gitlow v. New York, 268 U. S. 652, 666, 672; Near v. Minnesota, 283 U. S. 697, 707; Pennekamp v. Florida, 328 U. S. 331, 335.
De Jonge v. Oregon, 299 U. S. 353, 365:
"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 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."