U.S. Supreme Court HERNDON v. LOWRY, 301 U.S. 242 (1937)

[Page 301 U.S. 242, 246]

penalty for conviction of the offenses described in the two preceding sections unless the jury shall recommend mercy, and section 58 penalizes, by imprisonment, the introduction and circulation of printed matter for the purpose of inciting insurrection, riot, conspiracy, etc. The sections are copied in the margin. [Footnote 2]

The appellant was brought to trial and convicted. He appealed on the ground that, under the statute as construed by the trial court in its instructions to the jury, there was no evidence to sustain a verdict of guilty. The Supreme Court affirmed the judgment upon a broader and different construction of the act. [Footnote 3] The appellant moved for a rehearing contending, inter alia, that, as so construed, the statute violated the Fourteenth Amendment. The court refused to pass upon the constitutional questions thus raised, elaborated and explained its construction of the statute in its original opinion, and de-

[Page 301 U.S. 242, 247]

nied a rehearing. [Footnote 4] The appellant perfected an appeal to this court claiming that he had timely raised the federal questions and we, therefore, had jurisdiction to decide them. We held we were without jurisdiction. [Footnote 5] Upon his commitment to serve his sentence he sought the writ of habeas corpus.

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not be supplemented by proclaiming struggle for the complete separation of the negro zone, at least not at present.'

There is more of the same purport, particularly references to the 'revolutionary trade unions in the South,' 'revolutionary struggle against the ruling white bourgeoisie,' and 'revolutionary program of the Communist Party.'

There is no evidence the appellant distributed any writings or printed matter found in the box he carried when arrested, or any other advocating forcible subversion of governmental authority. There is no evidence the appellant advocated, by speech or written word, at meetings or elsewhere, any doctrine or action implying such forcible subversion. There is evidence tending to prove that the appellant held meetings for the purpose of recruiting members of the Communist Party and solicited contributions for the support of that party and there is proof of the doctrines which that party espouses. Appellant's intent to incite insurrection, if it is to be found, must rest upon his procuring members for the Communist Party and his possession of that party's literature when he was arrested.

Section 55 of the Georgia Penal Code defines insurrection as 'combined resistance to the lawful authority of the State, with intent to the denial thereof, when the same is manifested or intended to be manifested by acts of violence.' [Footnote 6] The appellant was not indicted under this section. Section 58 denounces the introduction, printing, or circulation, or assisting to print or circulate any document 'for the purpose of inciting insurrection.' The appellant was not indicted under this section.

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spire for these purposes. We sustained the power of the government or a state to protect the war operations of the United States by punishing intentional interference with them. We recognized, however, that words may be spoken or written for various purposes and that willful and intentional interference with the described operations of the government might be inferred from the time, place, and circumstances of the act. '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.' [Footnote 10]

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of speech and arbitrarily denies that freedom. [Footnote 11] And, where a statute is so vague and uncertain as to make criminal an utterance or an act which may be innocently said or done with no intent to induce resort to violence or on the other hand may be said or done with a purpose violently to subvert government, a conviction under such a law cannot be sustained. Upon this view we held bad a statute of California (Pen.Code, 403a) providing that 'any person who displays a red flag, ... in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organized government ... is guilty of a felony.' [Footnote 12]

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the trial, it is apparent that the documents found upon the appellant's person were certainly, as to some of the aims stated therein, innocent and consistent with peaceful action for a change in the laws or the Constitution. The proof wholly fails to show that the appellant had read these documents; that he had distributed any of them; that he believed and advocated any or all of the principles and aims set forth in them, or that those he had procured to become members of the party knew or approved of any of these documents.

Thus, the crucial question is not the formal interpretation of the statute by the Supreme Court of Georgia but the application given it. In its application the offense made criminal is that of soliciting members for a political party and conducting meetings of a local unit of that party when one of the doctrines of the party, established by reference to a document not shown to have been exhibited to any one by the accused, may be said to be ultimate resort to violence at some indefinite future time against organized government. It is to be borne in mind that the Legislature of Georgia has not made membership in the Communist Party unlawful by reason of its supposed dangerous tendency even in the remote future. The question is not whether Georgia might, in analogy to what other states have done, so declare. [Footnote 13] The appellant induced others to become members of the Communist Party. Did he thus incite to insurrection by reason of the fact that they agreed to abide by the tenets of the party, some of them lawful, others, as may be assumed, unlawful, in the absence of proof that he brought the unlawful aims to their notice, that he approved them, or that the fantastic program

[Page 301 U.S. 242, 263]

government. The question thus proposed to a jury involves pure speculation as to future trends of thought and action. Within what time might one reasonably expect that an attempted organization of the Communist Party in the United States would result in violent action by that party? If a jury returned a special verdict saying twenty years or even fifty years, the verdict could not be shown to be wrong. The law, as thus construed, licenses the jury to create its own standard in each case. In this aspect what was said in United States v. L. Cohen Grocery Co., 255 U.S. 81, at page 89, 41 S.Ct. 298, 300, 14 A.L.R. 1045, is particularly apposite: 'Observe that the section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against. In fact, we see no reason to doubt the soundness of the observation of the court below in its opinion to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury.'

The decisions relied on by the state held the Sherman Law (15 U.S.C.A . 1-7, 15 note) furnished a reasonable standard of guilt because it made a standard long recognized by the common law the statutory test. [Footnote 14]

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tablishment in the black belt of an independent state, possibly followed by secession from demonstrations, strikes, and tax boycotts in aid of this measure; adoption of a fighting the United States; organization of mass alliance with the revolutionary white proletariat; revolutionary overthrow of capitalism and establishment of Communism through effective physical struggles against the class enemy. Proposing these measures was nothing short of advising a resort to force and violence, for all know that such measures could not be effected otherwise. Not only so, but the literature makes such repelling use of the terms 'revolution,' 'national rebellion,' 'revolutionary struggle,' 'revolutionary overthrow,' 'effective physical struggle,' 'smash the National Guard,' 'mass strikes,' and 'violence,' as to leave no doubt that the use of force in an unlawful sense is intended.

The purpose and probable effect of such literature, when under consideration in a prosecution like that against Herndon, are to be tested and determined with appropriate regard to the capacity and circumstances of those who are sought to be influenced. [Footnote 7] In this instance the literature is largely directed to a people whose past and present circumstances would lead them to give unusual credence to its inflaming and inciting features.

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sions of this Court;8 and the Georgia decisions are to the same effect. [Footnote 9]

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difficult to understand, and conform to decisions heretofore given by this Court in respect of related questions. 10 I therefore am of opinion that there is no objectionable uncertainty about the standard of guilt and that the statute does not in that regard infringe the constitutional guaranty of due process of law.

Believing that the statute under which the conviction was had is not subject to the objections leveled against it, I think the judgment of the Supreme Court of the state denying the petition for habeas corpus should be affirmed.

Mr. Justice McREYNOLDS, Mr. Justice SUTHERLAND, and Mr. Justice BUTLER join in this dissent. Footnotes

Footnote 1 182 Ga. 582, 186 S.E. 429, 430.

Footnote 2 '55. Insurrection shall consist in any combined resistance to the lawful authority of the State, with intent to the denial thereof, when the same is manifested or intended to be manifested by acts of violence.'56. Any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the lawful authority of the State shall constitute an attempt to incite insurrection.'57. Any person convicted of the offense of insurrection, or an attempt to incite insurrection, shall be punished with death; or, if the jury recommend to mercy, confinement in the penitentiary for not less than five nor more than 20 years.'58. If any person shall bring, introduce, print, or circulate, or cause to be introduced, circulated, or printed, or aid or assist, or be in any manner instrumental in bringing, introducing, circulating, or printing within this State any paper, pamphlet, circular, or any writing, for the purpose of inciting insurrection, riot, conspiracy, or resistance against the lawful authority of the State, or against the lives of the inhabitants thereof, or any part of them, he shall be punished by confinement in the penitentiary for not less than five nor longer than 20 years.' Georgia Code, 1933, 26-901 to 26-904, inclusive.

Footnote 3 Herndon v. State, 178 Ga. 832, 174 S.E. 597.

Footnote 4 Herndon v. State, 179 Ga. 597, 176 S.E. 620.

Footnote 5 Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794.

Footnote 6 Note 2, supra.

Footnote 7 178 Ga. 832, 855, 174 S.E. 597, 610.

Footnote 8 179 Ga. 597, 600, 176 S.E. 620, 622.

Footnote 9 Act of June 15, 1917, c. 30, 40 Stat. 217, 219, amended by Act of May 16, 1918, c. 75, 40 Stat. 553 (50 U.S.C.A. 31 et seq. and section 33 note).

Footnote 10 See Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249; Frohwerk v. United States, , 39 S.Ct. 249; 63 L. Ed. 561; Debs v. United States, 249 U.S. 211, 39 S.Ct. 252; Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17; Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259; Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205; O'Connell v. United States, 253 U.S. 142, 40 S.Ct. 444; State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A.1918C, 304; Gilbert v. Minnesota, 254 U.S. 325, 41 S.Ct. 125.

Footnote 11 DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255.

Footnote 12 Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 73 A.L.R. 1484.

Footnote 13 See the statutes drawn in question in Gitlow v. New York, 268 U.S. 652, at page 654, 45 S.Ct. 625, and in Whitney v. California, 274 U.S. 357, 359, 47 S.Ct. 641, 642.

Footnote 14 Waters-Pierce Oil Co. v. Texas, , 29 S.Ct. 220; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780.

[Footnote 1] Georgia Code 1933, 26-901, 26-902, 26-903.

[Footnote 2] Carr v. State, 176 Ga. 747, 169 S.E. 201; Herndon v. State, 178 Ga. 832, 855, 174 S.E. 597.

[Footnote 3] Herndon v. State, 178 Ga. 832, 855, 867, 174 S.E. 597, 610.

[Footnote 4] Herndon v. State, 179 Ga. 597, 599, 176 S.E. 620, 622.

[Footnote 5] Lowry, Sheriff, v. Herndon, 182 Ga. 582, 186 S.E. 429.

[Footnote 6] See Georgia Code 1933, 38-415.

[Footnote 7] Burns v. United States, 274 U.S. 328, 335, 47 S.Ct. 650, 652.

[Footnote 8] Gitlow v. New York, , 666, et seq., 45 S.Ct. 625, 629; Whitney v. California, 274 U.S. 357, 371, 47 S.Ct. 641, 646; Fiske v. Kansas, 274 U.S. 380, 385, 47 S.Ct. 655, 656; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 73 A.L.R. 1484; Near v. Minnesota, 283 U.S. 697, 708, 51 S. Ct. 625, 628.

[Footnote 9] Carr v. State, 176 Ga. 55, 166 S.E. 827, 167 S.E. 103; Carr v. State, 176 Ga. 747, 169 S.E. 201.

[Footnote 10] Waters-Pierce Oil Co. v. Texas, , 108-111, 29 S.Ct. 220; Nash v. United States, 229 U.S. 373, 376-378, 33 S.Ct. 780.