U.S. Supreme Court Beauharnais v. Illinois, 343
U.S. 250 (1952) Beauharnais v.
Illinois No. 118 Argued November 28,
1951 Decided April 28,
1952 343
U.S. 250 CERTIORARI TO THE SUPREME COURT OF
ILLINOIS Syllabus Over his claim that the statute violated the liberty of speech
and of the press guaranteed as against the States by the Due
Process Clause of the Fourteenth Amendment and was void for
vagueness, petitioner was convicted in a state court for
distributing on the streets of Chicago anti-Negro leaflets in
violation of Ill.Rev.Stat., 1949, c. 38, § 471, which makes it a
crime to exhibit in any public place any publication which
"portrays depravity, criminality, unchastity, or lack of virtue of
a class of citizens, of any race, color, creed or religion" which
"exposes the citizens of any race, color, creed or religion to
contempt, derision, or obloquy." Held: 1. As construed and applied in this case, the statute does not
violate the liberty of speech and of the press guaranteed as
against the States by ihe Due Process Clause of the Fourteenth
Amendment. Pp. 343 U. S.
251 -264.

															2. As construed and applied in this case, the statute is not
void for vagueness. Winters v. New York, 333 U.
S. 507 ; Stromberg v. California, 283 U.
S. 359 ; Thornhill v. Alabama, 310 U. S.
88 ; and Terminiello v. Chicago, 337 U. S.
1 , distinguished. P. 343 U. S.
264 .

															3. Since petitioner did not, by appropriate steps in the trial
court, seek to justify his utterance as "fair comment" or as
privileged as a means for redressing grievances, those hypothetical
defenses cannot be considered by this Court. Pp. 343 U. S.
264 -265.

															4. Since the Illinois Supreme Court construed this statute as a
form of criminal libel law, and truth of the utterance is not a
defense to a charge of criminal libel under Illinois law unless the
publication is also made "with good motives and for justifiable
ends," petitioner was not denied due process by the trial court's
rejection of a proffer of proof which did not satisfy this
requirement. Pp. 343 U. S.
253 -254, 343 U. S.
265 -266.

															5. Since libelous utterances are not within the area of
constitutionally protected speech, it is not necessary for this
Court to consider the issues raised by the denial of petitioner's
request that the jury be instructed that, in order to convict, they
must find that the publication complained of was likely to produce
a "clear and present danger" of a substantial evil. Pp. 343 U. S. 253 , 343 U. S.
266 . 408 Ill. 512 , 97 N.E.2d
343 , affirmed. Page 343 U. S. 251 The Supreme Court of Illinois sustained petitioner's conviction
of a violation of Ill.Rev.Stat., 1949, c. 38 § 471, over his
objection that the statute was invalid under the Fourteenth
Amendment. 408 Ill. 512 , 97 N.E.2d
343 . This Court granted certiorari. 342 U.S. 809. Affirmed, p. 343 U. S.
267 .

															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 Page 343 U. S. 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.

															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 Negro race 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 Page 343 U. S. 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. Cf. Thornhill v.
Alabama, 310 U. S. 88 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 307 .
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. We read it in the animating
context of well-defined usage, Nash v. United States, 229 U. S. 373 , and
State court construction which determines its meaning for us. Cox v. New Hampshire, 312 U. S. 569 ; Chaplinsky v. New Hampshire, 315 U.
S. 568 .

															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 Page 343 U. S. 254 this offer in terms of ordinary criminal libel precedents.
[ Footnote 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. [ Footnote 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." [ Footnote
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 Page 343 U. S. 255 the crime of libel be abolished. [ Footnote 4 ] Today, every American jurisdiction -- the
forty-eight States, the District of Columbia, Alaska, Hawaii and
Puerto Rico -- punish libels directed at individuals. [ Footnote 5 ]

															"There are certain well defined Page 343 U. S. 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 utterances Page 343 U. S. 257 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. Connecticut, 310 U. S.
296 , 310 U. S. 309 -310."

															Such were the views of a unanimous Court in Chaplinsky v.
New Hampshire, supra, at 315 U. S.
571 -572. [ Footnote
6 ]

															No one will gainsay that it is libelous falsely to charge
another with being a rapist, robber, carrier of knives and Page 343 U. S. 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. [ Footnote
7 ] It is certainly clear that some American jurisdictions have
sanctioned their punishment under ordinary criminal libel statutes.
[ Footnote 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 willful and purposeless restriction unrelated to the peace
and wellbeing of the State.

															Illinois did not have to look beyond her own borders or await
the tragic experience of the last three decades [ Footnote 9 ] Page 343 U. S. 259 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 Lovejoy in 1837 to the Cicero riots of 1951, Illinois
has been the scene of exacerbated tension between races, often
flaring into violence and destruction. [ Footnote 10 ] In many of these outbreaks, utterances of
the character here in question, so the Illinois legislature could
conclude, played a significant part. [ Footnote 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 groups -- foreign-born brought to it by the crest of
the great wave of immigration, and Negroes attracted by jobs in war
plants and the allurements Page 343 U. S. 260 of northern claims. [ Footnote
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. [ Footnote 13 ] Less than a month
before the bill was enacted, East St. Louis had seen a day's
rioting, prelude to an outbreak, only four days after the bill
became law, so bloody that it led to Congressional investigation.
[ Footnote 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 Page 343 U. S. 261 the summer of 1919. [ Footnote
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.

															"There are limits to the exercise of these liberties [of speech
and of the press]. The danger in these times from the coercive
activities of those who in the delusion of racial or religious
conceit would incite violence and breaches of the peace in order to
deprive others of their equal right to the exercise of their
liberties, is emphasized by events familiar to all. These and other
transgressions of those limits the states appropriately may punish.
[ Footnote 16 ]"

															This was the conclusion, again of a unanimous Court, in 1940. Cantwell v. Connecticut, supra, at 310 U. S.
310 .

															It may be argued, and weightily, that this legislation will not
help matters; that tension and on occasion Page 343 U. S. 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. [ Footnote
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 paradox of reform. It is the price to be
paid for the trial and error inherent in legislative efforts to
deal with obstinate social issues.

															"The science of government is the most abstruse of all sciences
if, indeed, that can be called a science which has but few fixed
principles, and practically consists in little more than the
exercise of a sound discretion, applied to the exigencies of the
state as they arise. It is the science of experiment." Anderson v.
Dunn , 6 Wheat. 204, 19 U. S. 226 .
Certainly the Due Process Clause does not require the legislature
to be in the vanguard of science -- especially sciences as young as
human ecology and cultural anthropology. See Tigner v.
Texas, 310 U. S. 141 , 310 U. S.
148 .

															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 Council, 257 U. S. 184 , 189
[argument of counsel -- omitted]. 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 Page 343 U. S. 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. [ Footnote 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 utterance Page 343 U. S. 264 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 juries in applying the
statute and men in acting cannot draw from it adequate standards to
guide them. The clarifying construction and fixed usage which
govern the meaning of the enactment before us were not present, so
the Court found, in the New York law held invalid in Winters v.
New York, 333 U. S. 507 .
Nor, thus construed and limited, is the act so broad that the
general verdict of guilty on an indictment drawn in the statutory
language might have been predicated on constitutionally protected
conduct. On this score, the conviction here reviewed differs from
those upset in Stromberg v. California, 283 U.
S. 359 ; Thornhill v. Alabama, 310 U. S.
88 ; and Terminiello v. City of Chicago, 337 U. S. 1 . Even
the latter case did not hold that the unconstitutionality of a
statute is established because the speech prohibited by it raises a
ruckus.

															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 Page 343 U. S. 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. [ Footnote 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. [ Footnote 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 Page 343 U. S. 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, [ Footnote 21 ]
it did not satisfy the entire requirement which Illinois could
exact. [ Footnote 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. [ Footnote 23 ] But Page 343 U. S. 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. [ Footnote 1 ] 408 Ill. 512 ,
518, 97 N.E.2d
343 , 346, 347. Illinois law requires that, for the defense to
prevail, the truth of all facts in the utterance must be shown
together with good motive for publication. People v.
Strauch, 247 Ill. 220, 93 N.E. 126; People v. Fuller, 238 Ill. 116, 87 N.E. 336; cf. Ogren v. Rockford Star Printing
Co., 288 Ill. 405, 123 N.E. 587.

															[ Footnote 2 ] See, e.g., State v. Sterman, 199 Iowa 569, 202 N.W.
222; State v. Howard, 169 N.C. 312, 313, 84 S.E. 807, 808; cf. Ogren v. Rockford Star Printing Co., supra. [ Footnote 3 ] See, e.g., People v. Spielman, 318 Ill. 482, 489, 149
N.E. 466, 469; Odgers, Libel and Slander (6th ed.), 368; Kennerly v. Hennessy, 68 Fla. 138, 66 So. 729, 19 A.L.R.
1470. Some States hold, however, that injury to reputation, as in
civil libel, and not tendency to breach of the peace, is the
gravamen of the offense. See Tanenhaus, Group Libel, 35
Cornell L.Q. 261, 273 and n. 67.

															[ Footnote 4 ]

															For a brief account of this development see Warren,
History of the American Bar, 236-239. See also correspondence between Chief Justice Cushing of Massachusetts and
John Adams, published in 27 Mass.L.Q. 11-16 (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 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." See Dennis v. United States, 341 U.
S. 494 , 341 U. S. 522 ,
note 4. See Miller, Crisis in Freedom, 168-169, 231-232. See also provisions as to criminal libel in Edward
Livingston's famous draft System of Penal Law for Louisiana, 2
Works of Edward Livingston 100-108.

															[ Footnote 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. Twelve other
jurisdictions make "libel" a crime by statute, without defining the
term. Ala.Code 1940, Tit. 14, § 347; Alaska Comp.Laws Ann.1949, §
65-4-28; D.C.Code 1940, § 22-2301; Fla.Stat.Ann. § 836.01; Burns'
Ind.Stat.1933, § 10-3201; Miss.Code 1942, § 2268;
Neb.Rev.Stat.1943, §28-440; N.J.Stat.Ann. § 2:146-1;
N.C.Gen.Stat.1943, § 14-47; Page's Ohio Gen.Code 1939, § 13383;
Wis.Stat.1949, § 348.41; Wyo.Comp.Stat.1945, § 9-1601. 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."

															Smith-Hurd Ill.Ann.Stat.1936, c. 38, § 402. Ariz.Code Ann.1939,
§43-3501; Ark.Stat.1947, § 41-2401; Deering's Cal.Penal Code 1949,
§ 248; Colo.Stat.Ann.1935, c. 48, § 199; Ga.Code Ann.1936, §
26-2101; Idaho Code 1947, § 18-4801; Mont.Rev.Codes 1947, §
94-2801; Nev.Comp.Laws 1929, § 10110; P.R.Codigo Penal 1937, § 243;
Utah Code Ann.1943, § 103-38-1; cf. Virgin Islands Code
1921, Tit. IV, c. 5, § 36.

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

															"A libel is a malicious defamation of a person, made public by
any printing, writing, sign, picture, representation, or effigy,
tending to provoke him to wrath or expose him to public hatred,
contempt, or ridicule, or to deprive him of the benefits of public
confidence and social intercourse; or any malicious defamation,
made public as aforesaid, designed to blacken and vilify the memory
of one who is dead, and tending to scandalize or provoke his
surviving relatives or friends."

															Iowa Code Ann. § 737.1; Kan.Gen.Stat.1949, § 21-2401; Dart's
La.Crim.Code 1935, Art. 740-47; Me.Rev.Stat.1944, c. 117, § 30;
Minn.Stat.1949, § 619.51; Mo.Rev.Stat.1949, § 559.410; McKinney's
N.Y.Laws, Penal Law, § 1340; N.D.Rev.Code 1943, § 12-2801;
Okl.Stat.Ann. Tit. 21, § 771; Purdon's Pa.Stat.Ann. Tit. 18, §
4412; Williams Tenn.Code 1934, §§ 11021, 11022; Remington's
Wash.Rev.Stat.1932, § 2424.

															The remaining nine jurisdictions have definitions of criminal
libel which fall into no common pattern. See Conn.Gen.Stat.1949, § 8218; Hawaii Rev.Laws 1945, § 11450;
Mich.Comp.Laws 1948, § 750-370; N.M.Stat.1941, §§ 41-2701, 41-2708;
Ore.Comp.Laws 1940, § 23-437; S.C.Code 1942, § 1395; S.D.Code 1939,
§13. 3401; Vernon's Tex.Penal Stat. 1948, Arts. 1269, 1275; Va.Code
1950, § 18-133.

															Our examination of the homogeneity of these statutory definitons
of criminal libel might well begin and end with the words "virtue"
and "ridicule." Of thirty-two jurisdictions, twelve outlaw
statements impeaching the "virtue" of another; eleven of these, and
fifteen more-twenty-six in all-prohibit utterances tending to bring
another into "public ridicule."

															For the common law definition, applicable in the twenty
jurisdictions first noted above, see L. Hand, J., in Grant v. Reader's Digest Ass'n, 151 F.2d 733, 735, where
he speaks of defining libel "in accordance with the usual rubric,
as consisting of utterances which arouse "hatred, contempt, scorn,
obloquy or shame," and the like." Cf. Restatement, Torts,
§ 559, comment (b); Odgers, Libel and Slander (6th ed.), 16-17;
Newell, Slander and Libel (4th ed.), 1-2.

															Even a cursory examination of these enactments and common law
pronouncements demonstrates that Illinois, in § 224a, was using a
form of words which invoked the familiar common law of libel to
define the prohibited utterances. The defendant and the Illinois
courts, as we have seen, understood this and acted upon it.

															[ Footnote 6 ]

															In all but five States, the constitutional guarantee of free
speech to every person is explicitly qualified by holding him
"responsible for the abuse of that right." See Pennekamp v.
Florida, 328 U. S. 331 , 328 U. S. 356 ,
note 5. See Jefferson in Kentucky Resolutions of 1798 and
1799, 4 Elliot's Debates 540-541, and in an undated draft prepared,
but not used, for his December 8, 1801, Message to Congress,
Library of Congress Jefferson Papers, Vol. 119, Leaf 20569. In Carlson v. California, 310 U. S. 106 , 310 U. S. 112 ,
we noted that the statute there invalidated made "no exceptions
with respect to the truthfulness and restraint of the information
conveyed. . . ."

															[ Footnote 7 ] Compare reports of King v. Osborne in 2
Barn.K.B. 138, 166, 94 Eng.Rep. 406, 425; 2 Swans. 503, n
( c ), 36 Eng.Rep. 705, 717; W.Kel. 230, 25 Eng.Rep. 584
(1732). The present Attorney General of England asserted that this
case obviated the need of special group libel legislation for Great
Britain. See The (London) Times, March 26, 1952, p. 2,
col. 4. See also Odgers, Libel and Slander (6th ed.), 369;
Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 267-269.

															[ Footnote 8 ]

															One of the leading cases arose in Illinois. People v.
Spielman, 318 Ill. 482, 149 N.E. 466 (1925), sustaining a
conviction for libel on the members of the American Legion. The
authorities are collected and discussed in Tanenhaus, Group Libel,
35 Cornell L.Q. 261, 269-276.

															[ Footnote 9 ] See, e.g., Loewenstein, Legislative Control of
Political Extremism in European Democracies, 38 Col.L.Rev. 591 and
725; Riesman, Democracy and Defamation, 42 Col.L.Rev. 727, 1085 and
1282; Public Order Act, 1936, 1 Edw. VIII and 1 Geo. VI, c. 6, and
317 H.C.Deb. 1349-1473 (5th ser. 1936); 318 H.C.Deb. 49-193,
581-710, 1659-1785, 2781-2784 (5th ser. 1936); 103 H.L.Deb.
741-773, 961-972 (5th ser. 1936).

															[ Footnote 10 ] See generally The Chicago Commission on Race Relations,
The Negro in Chicago, 1-78, and passim (University of
Chicago Press, 1922); Research Memorandum No. 5, First Annual
Rep.Ill. Inter-Racial Comm'n (1944).

															[ Footnote 11 ]

															The May 28, 1917, riot in East St. Louis, Illinois, was preceded
by a violently inflammatory speech to unemployed workmen by a
prominent lawyer of the town. Report of the Special Committee
Authorized by Congress to Investigate the East St. Louis Riots,
H.R. Doc. No. 1231, 65th Cong., 2d Sess. 11; Chicago Commission on
Race Relations, The Negro in Chicago, 75. And see id. at
118-122 for literature circulated by real estate associations and
other groups during the series of bombings leading up to the
Chicago riots of 1919. For the Commission's comments on the role of
propaganda in promoting race frictions, see id. at 589,
638-639.

															[ Footnote 12 ]

															Tables in Drake and Cayton, Black Metropolis, 8, show that,
between 1900 and 1920, the number of foreign-born in Chicago
increased by over 1/3, and the Negro population trebled. United
States census figures show the following population growth for the
State as a whole and selected counties:

															bwm:

															Illinois Cook County St. Clair County

															(Chicago) (East St. Louis)

															Total Negro Total Negro Total Negro

															1900 4,821,550 85,078 1,838,735 31,838 86,685 3,987

															1910 5,638,591 109,049 2,405,233 46,627 119,870 8,110

															1920 6,485,280 182,274 3,053,017 115,238 136,520 10,136

															1930 7,630,654 328,972 3,982,123 246,992 157,775 15,550

															1940 7,897,241 387,446 4,063,342 249,157 166,899 21,567

															1950 8,712,176 645,989 4,508,792 521,007 205,995 34,566

															ewm:

															For an account of these vast population movements entailing
great social maladjustments, see Drake and Cayton, Black
Metropolis, 8-18, 31-65; Chicago Commission on Race Relations, The
Negro in Chicago, 79-105; Carl Sandburg, The Chicago Race Riots,
9-30.

															[ Footnote 13 ] See Walling, Race War in the North, 65 The Independent
529 (1908). This article apparently led to the founding of the
National Association for the Advancement of Colored People.
Ovington, How the National Association for the Advancement of
Colored People Began, 8 Crisis 184 (1914). See also Chicago Commission on Race Relations, The Negro in Chicago,
67-71.

															[ Footnote 14 ]

															Report of the Special Committee Authorized by Congress to
Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th
Cong., 2d Sess. See also The Massacre of East St. Louis,
14 Crisis 219 (1917).

															[ Footnote 15 ]

															Chicago, Commission on Race Relations, The Negro in Chicago
122-133.

															[ Footnote 16 ]

															The utterances here in question "are not," as a detached student
of the problem has noted,

															"the daily grist of vituperative political debate. Nor do they
represent the frothy imaginings of lunatics, or the 'idle' gossip
of a country town. Rather, they indicate the systematic avalanche
of falsehoods which are circulated concerning the various groups,
classes and races which make up the countries of the western
world."

															Riesman, Democracy and Defamation; Control of Group Libel, 42
Col.L.Rev. at 727. Professor Riesman continues:

															"Such purposeful attacks are nothing new, of course. . . . What
is new, however, is the existence of a mobile public opinion as the
controlling force in politics, and the systematic manipulation of
that opinion by the use of calculated falsehood and
vilification." Id. at 728.

															[ Footnote 17 ] See, e.g., L. Hand, J., in a symposium in The Saturday
Review of Literature, Mar. 15, 1947, pp. 23-24; Report of the
Committee on the Law of Defamation, Cmd. 7536, 11 (1948).

															[ Footnote 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 125, 87
N.E. 336 at 338-339; Commonwealth v. Pratt, 208 Mass. 553,
559, 95 N.E. 105, 106. Political parties, like public men, are, as
it were, public property.

															[ Footnote 19 ]

															Indeed, such defenses are evidently protected by Illinois law. See Ill.Const. Art. II, § 17, guaranteeing the right of
the people to apply for redress of grievances. And see People
v. Fuller, 238 Ill. 116, 125, 87 N.E. 336, 338-339, on the
defense of "fair comment" in criminal libel prosecutions.

															[ Footnote 20 ]

															The present constitution, adopted in 1870, is Illinois' third.
The first two preserved the defense of truth in certain types of
libel prosecutions:

															"In prosecutions for the publication of papers investigating the
official conduct of officers, or of men acting in a public
capacity, or where the matter published is proper for public
information, the truth thereof may be given in evidence. And in all
indictments for libels, the jury shall have the right of
determining both the law and the fact, under the direction of the
court, as in other cases."

															Ill.Const.1818, Art. VIII, § 23; Ill.Const.1848, Art. XIII,
§

															24. The combined requirement of truth and good motives and
justifiable ends, available as a defense in all libel suits, was
adopted with the Constitution of 1870.

															[ Footnote 21 ]

															Defendant offered to show (1) that crimes were more frequent in
districts heavily populated by Negroes than in those where whites
predominated; (2) three specific crimes allegedly committed by
Negroes, and (3) that property values declined when Negroes moved
into a neighborhood. It is doubtful whether such a showing is as
extensive as the defamatory allegations in the lithograph
circulated by the defendant.

															[ Footnote 22 ]

															The defense attorney put a few questions to the defendant on the
witness stand which tended toward elaborating his motives in
circulating the lithograph complained of. When objections to these
questions were sustained, no offer of proof was made, in contrast
to the rather elaborate offer which followed the refusal to permit
questioning tending to show the truth of the matter. Indeed, in
that offer itself, despite its considerable detail, no mention was
made of the necessary element of good motive or justifiable ends.
In any event, the question of exclusion of this testimony going to
motive was not raised by motion in the trial court, on appeal in
Illinois, or before us.

															[ Footnote 23 ]

															The law struck down by the New Jersey court in New Jersey v.
Klapprott, 127 N.J.L. 395, 22 A.2d 877, 880, was quite
different than the one before us, and was not limited, as is the
Illinois statute, by construction or usage. Indeed, in that case,
the court emphasized that "[i]t is not a case of libel," and
contrasted the history at common law of criminal prosecutions for
written and spoken defamation.

															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. Since the Court opinion quotes only parts of the
leaflet, I am including all of it as an 343
U.S. 250 app|>appendix to this dissent. 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 Page 343 U. S. 268 Prosecutions for such petitioning are illegal." [ Footnote 2/1 ] 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. [ Footnote 2/2 ]"

															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.
California, 314 U. S. 252 , 314 U. S. 277 .
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. [ Footnote 2/3 ]

															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, Page 343 U. S. 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.
California, 342 U. S. 165 , 342 U. S. 169 .
Under this "reasonableness" test, state laws abridging First
Amendment freedoms are sustained if found to have a "rational
basis." But in Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 ,
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, Page 343 U. S. 270 speech and press almost completely at the mercy of state
legislative, executive, and judicial agencies. I say "almost"
because state curtailment of these freedoms may still be
invalidated if a majority of this Court conclude that a particular
infringement is "without reason," or is "a willful and purposeless
restriction unrelated to the peace and well being of the State."
But lest this encouragement should give too much hope as to how and
when this Court might protect these basic freedoms from state
invasion, we are cautioned that state legislatures must be left
free to "experiment" and to make "legislative" judgments. We are
told that mistakes may be made during the legislative process of
curbing public opinion. In such event, the Court fortunately does
not leave those mistakenly curbed, or any of us for that matter,
unadvised. Consolation can be sought, and must be found, in the
philosophical reflection that state legislative error in stifling
speech and press "is the price to be paid for the trial and error
inherent in legislative efforts to deal with obstinate social
issues." My own belief is that no legislature is charged with the
duty or vested with the power to decide what public issues
Americans can discuss. In a free country, that is the individual's
choice, not the state's. State experimentation in curbing freedom
of expression is startling and frightening doctrine in a country
dedicated to self-government by its people. I reject the holding
that either state or nation can punish people for having their say
in matters of public concern. 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,' " Page 343 U. S. 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." [ Footnote 2/4 ] For, as Page 343 U. S. 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. New Hampshire, 315 U. S. 568 , 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 Page 343 U. S. 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 not --
yet. 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 Page 343 U. S. 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 Page 343 U. S. 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 far-fetched 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. 343 U. S.
276 .]

															[For dissenting opinion of MR. JUSTICE REED, see post, p. 343 U. S.
277 .]

															[For dissenting opinion of MR. JUSTICE DOUGLAS, see
post, p. 343 U. S.
284 .]

															[For dissenting opinion of MR. JUSTICE JACKSON, see
post, p. 343 U. S.
287 .] Page 343 U. S. 276 [ Footnote 2/1 ]

															1 William & Mary, Sess. 2, c. 2 (1689).

															[ Footnote 2/2 ]

															Eighth Resolution of the Continental Congress of 1774.

															[ Footnote 2/3 ] E.g., Grosjean v. American Press Co., 297 U.
S. 233 , 297 U. S.
244 -245, 297 U. S. 249 ; Lovell v. City of Griffin, 303 U.
S. 444 , 303 U. S. 450 ; Schneider v. New Jersey, 308 U. S. 147 , 308 U. S. 160 ; Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 95 ; Minersville School District v. Gobitis, 310 U.
S. 586 , 310 U. S. 593 ; West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 ; Thomas v. Collins, 323 U. S. 516 , 323 U. S.
529 -530, concurring opinion, 323 U. S. 545 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S.
349 .

															[ Footnote 2/4 ]

															The Court's finding of a close kinship between "criminal libel"
and "group libel" because both contain the word "libel" and have
some factors in common is reminiscent of what Earl Stanhope said in
1792 in discussing Mr. Fox's Libel Bill. He was arguing that a jury
of laymen might more likely protect liberty than judges, because
judges were prone to rely too heavily on word books.

															"He put the case that an action for a libel was brought for
using a modern word, not to be found in any grammar or glossary, viz., for saying that a man was 'a great bore;' a jury
would laugh at such a ground of prosecution, but the judges would
turn to their grammars and glossaries, and, not being able to meet
with it, would say they could not find such a phrase as 'a great
bore,' but they had found a wild boar, which no doubt it meant; and
yet it could not be, as a wild boar had four legs, and a man was a
two-legged animal; then it must mean, that the plaintiff was like a
wild boar in disposition, which was a wicked libel, and therefore
let the defendant be hanged."

															29 Hansard, Parliamentary History of England, p. 1412.

															| 343
U.S. 250 app| APPENDIX TO OPINION OF MR. JUSTICE BLACK image:a Page 343 U. S. 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 Code [ Footnote 3/1 ] 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 portrayed 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 Page 343 U. S. 278 color to contempt, derision, or obloquy, which more fully
appears in Exhibit A, which is attached hereto and made a part
thereof. [ Footnote 3/2 ]"

															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 Page 343 U. S. 279 too vague and by virtue of that fact was so broad that it
abridged free speech in violation of the Fourteenth Amendment.
[ Footnote 3/3 ] 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,
[ Footnote 3/4 ] 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. [ Footnote
3/5 ] 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.
[ Footnote 3/6 ] It is when speech
becomes an incitement to crime that the right freely to exhort may
be abridged. American Communications Ass'n v. Douds, 339 U. S. 382 , 339 U. S. 395 ; Herndon v. Lowry, 301 U. S. 242 , 301 U. S.
255 . Page 343 U. S. 280 When a state conviction is challenged here on the ground that
free speech has been abridged, this Court must first decide whether
the portion of the statute upon which the charge is based is so
broad "as to permit within the scope of its language the punishment
of incidents fairly within the protection of the guarantee of free
speech." Winters v. New York, 333 U.
S. 507 , 333 U. S. 509 .
In the Winters case, we set aside the conviction because
the indefinite character of the statutory language, as construed by
the Court of Appeals of New York, was so broad that protected
speech was prohibited. This Court reversed, even though it assumed
that Winters' conduct could constitutionally be punished by a
statute expressing its prohibitions in reasonably narrow and
definite form. [ Footnote 3/7 ]

															This requirement means that, when the verdict and judgment flow,
as here, from the information as a whole, each and every portion of
the statute upon which the information was drawn must be
constitutional. In Stromberg v. California, 283 U.
S. 359 , Stromberg had been convicted in the California
courts for violating a statute of that state forbidding the display
of a red flag. [ Footnote 3/8 ] On
appeal, this Court did not consider whether Stromberg's conduct, as
shown by the record, was protected by the Constitution. Instead,
despite the fact that the second and third clauses of the
California statute were unquestionably valid under the Federal
Constitution, this Court Page 343 U. S. 281 reversed the state court because its conviction of Stromberg
might have been based upon the first clause, holding that, "if any
of the clauses in question is invalid under the Federal
Constitution, the conviction cannot be upheld." [ Footnote 3/9 ] The first clause, forbidding a
display of a red flag as a symbol of opposition to organized
government, was deemed invalid because it was so broad that it
permitted

															"punishment of the fair use of [the] opportunity [for free
political discussion, and was therefore] repugnant to the guaranty
of liberty contained in the Fourteenth Amendment." Id. at 283 U. S.
369 .

															The judgment in this present case followed from a determination
of judge and jury that petitioner's publication of the lithograph
violated the statute. From the general verdict of guilty, nothing
appears to show what particular words of the statute the Illinois
courts determined the lithograph offended. This conviction must
stand or fall upon a determination whether all definitions of the
acts proscribed by the statute and charged in the information may
be banned under the principles of the First Amendment, for, as the
foregoing discussion shows, it is impossible to tell upon what
phrase of the statute petitioner's conviction was based. Our
examination can begin and end with the inquiry as to what meaning
lies in the act's declaration, as charged in the information, that
it is unlawful to portray in a lithograph a "lack of virtue of a
class of citizens . . . which . . . exposes [them to] derision, or
obloquy."

															The majority opinion asserts that Illinois has given
sufficiently clear and narrow meaning to the words "virtue,"
"derision" and "obloquy" by characterizing § 224a as "a form of
criminal libel law." But the mere description of this statute as a
criminal libel law does not Page 343 U. S. 282 clarify the meaning of these vague words in the statute. To say
that the mere presence of the word "virtue" in the individual libel
statute [ Footnote 3/10 ] makes its
meaning clear in the group libel statute is a non
sequitur. No case is cited which defines and limits the
meaning of these words. Reliance is also placed by the Court upon
Illinois' unfortunate experience with clashes between races. How
that experience gives content to the vague words is not explained.
The opinion further relies upon "the clarifying
construction and fixed usage which govern the meaning
of the enactment before us." (Emphasis added.) No opinions
containing such clarification are cited. In addition to the case
before us, we find only two reported adjudications on § 224a in the
Illinois courts. [ Footnote 3/11 ]
Without caviling that one of these cases is so recent that it
follows the instant case in the reports, certainly neither of them
contains any words which give that "clarifying construction"
claimed for Illinois law.

															The majority certainly do not supply that construction by
intimating that the publications prohibited by § 224a are only
those "liable to cause violence and disorder." Moreover, that
phrase was used by the Illinois court, not to limit the prohibition
of § 224a, but to describe the lithograph published by Beauharnais. See 408 Ill. at 517, 97 N.E.2d at 346. The quoted language
does not limit the statutory words "virtue," "derision" or
"obloquy." [ Footnote 3/12 ] Page 343 U. S. 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. [ Footnote 3/13 ]

															These words -- "virtue," "derision," and "obloquy" -- have
neither general nor special meanings well enough known to apprise
those within their reach as to limitations Page 343 U. S. 284 on speech. Compare Connally v. General Construction
Co., 269 U. S. 385 , 269 U. S.
391 -392. 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.

															[ Footnote 3/1 ]

															"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)."

															[ Footnote 3/2 ] 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.

															[ Footnote 3/3 ] 408 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 , 274 U. S. 361 ,
and cases there cited.

															[ Footnote 3/4 ] Hebert v. Louisiana, 272 U. S. 312 , 272 U. S. 316 ; Palko v. Connecticut, 302 U. S. 319 ; Adamson v. California, 332 U. S. 46 , 332 U. S.
66 .

															[ Footnote 3/5 ] Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 , 268 U. S. 672 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S. 707 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S.
335 .

															[ Footnote 3/6 ] De Jonge v. Oregon, 299 U. S. 353 , 299 U. S.
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."

															[ Footnote 3/7 ] See 333 U.S. at 333 U. S. 520 . Cf. Thornhill v. Alabama, 310 U. S.
88 ; Herndon v. Lowry, 301 U.
S. 242 , 301 U. S.
263 -264.

															[ Footnote 3/8 ]

															283 U.S. at 283 U. S.
361 :

															"Any person who displays a red flag, banner or badge or any
flag, badge, banner, or device of any color or form whatever 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 or as an invitation or stimulus
to anarchistic action or as an aid to propaganda that is of a
seditious character is guilty of a felony."

															Then § 403a of the California Penal Code.

															[ Footnote 3/9 ]

															283 U.S. at 283 U. S. 368 . See also Williams v. North Carolina, 317 U.
S. 287 , 317 U. S.
291 -292. Cf. Thomas v. Collins, 323 U.
S. 516 , 323 U. S. 529 ; Cramer v. United States, 325 U. S. 1 , 325 U. S. 36 , n.
45.

															[ Footnote 3/10 ]

															Smith-Hurd Ill.Ann.Stat.1936, c. 38, § 402, quoted in majority
opinion at note 5.

															[ Footnote 3/11 ] People v. Simcox, 379 Ill. 347, 40 N.E.2d 525; People v. White Circle League of America, 408 Ill. 564 , 97 N.E.2d 811 (1951). See also Fox Film Corp. v. Collins, 236 Ill.App.
281; Bevins v. Prindable, 39 F.
Supp. 708 , affirmed, 314 U.S. 573.

															[ Footnote 3/12 ]

															Indeed, if the Illinois courts had been inclined to interpret
their statute as this Court now interprets it, they could have done
so only by reading out of their statute the disjunctive clause "or
which is productive of breach of the peace or riots." (Quoted at p. 343 U. S. 251 of majority opinion.) If the Illinois courts were inclined to read
this disjunctive as a conjunctive, they would presumably have
reversed Beauharnais' conviction, for the information in this case
did not charge that publication of his lithograph would be
productive of breach of the peace or riots.

															[ Footnote 3/13 ]

															". . . the constitution never intended to invest judges with a
discretion which cannot be tried and measured by the plain and
palpable standard of law. . . . On a special verdict for murder,
the life of the prisoner does not depend upon the religious, moral,
or philosophical ideas of the judges. . . . If he is condemned . .
. , his conduct is brought to a precise, clear, intelligible
standard, and cautiously measured by it; it is the law, therefore,
and not the judge, which condemns him. . . ."

															Argument in the King's Bench in the Dean of St. Asaph's case
(1783-1784), 21 Howell's State Trials 847, 1006.

															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, Page 343 U. S. 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 is couched in absolute terms -- freedom of
speech shall not be abridged. Speech has therefore a preferred
position [ Footnote 4/1 ] as
contrasted to some other civil rights. For example, privacy,
equally sacred to some, is protected by the Fourth Amendment only
against unreasonable searches and seizures. There is room for
regulation of the ways and means of invading privacy. No such
leeway is granted the invasion of the right of free speech
guaranteed by the First Amendment. Until recent years, that had
been the course and direction of constitutional law. Yet, recently,
the Court in this and in other cases [ Footnote 4/2 ] has engrafted the right of regulation onto
the First Amendment by placing in the hands of the legislative
branch the right to regulate "within reasonable limits" the right
of free speech. This, to me is, an ominous and alarming trend. The
free trade in ideas which the Framers of the Constitution
visualized disappears. In its place there is substituted a new
orthodoxy -- an orthodoxy that changes with the whims of the age or
the day, an orthodoxy which the majority by solemn judgment
proclaims to be essential to the safety, welfare, security,
morality, or health of society. Free speech in the constitutional
sense disappears. Limits are drawn -- limits dictated by
expediency, political opinion, prejudices or some other desideratum
of legislative action.

															An historic aspect of the issue of judicial supremacy was the
extent to which legislative judgment would be Page 343 U. S. 286 supreme in the field of social legislation. The vague contours
of the Due Process Clause were used to strike down laws deemed by
the Court to be unwise and improvident. [ Footnote 4/3 ] That trend has been reversed. In matters
relating to business, finance, industrial and labor conditions,
health and the public welfare, great leeway is now granted the
legislature, [ Footnote 4/4 ] for
there is no guarantee in the Constitution that the status
quo will be preserved against regulation by government.
Freedom of speech, however, rests on a different constitutional
basis. 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
haliled 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.
Intemperate Page 343 U. S. 287 speech is a distinctive characteristic of man. Hotheads 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.

															[ Footnote 4/1 ] Murdock v. Pennsylvania, 319 U.
S. 105 , 319 U. S. 115 ; Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 ; Saia v. New York, 334 U. S. 558 , 334 U. S.
561 .

															[ Footnote 4/2 ] Dennis v. United States, 341 U.
S. 494 ; Feiner v. New York, 340 U.
S. 315 . Cf. Breard v. Alexandria, 341 U.
S. 622 ; American Communications Ass'n v. Douds, 339 U. S. 382 ; Osman v. Douds, 339 U. S. 846 .

															[ Footnote 4/3 ] Lochner v. New York, 198 U. S. 45 ; Coppage v. Kansas, 236 U. S. 1 ; Ribnik v. McBride, 277 U. S. 350 .

															[ Footnote 4/4 ] Nebbia v. New York, 291 U. S. 502 ; West Coast Hotel Co. v. Parrish, 300 U.
S. 379 ; Lincoln Union v. Northwestern Co., 335 U. S. 525 ; Day-Brite Lighting, Inc. v. Missouri, 342 U.
S. 421 .

															MR. JUSTICE JACKSON, dissenting.

															An Illinois Act, construed by its Supreme Court to be a "group
libel" statute, has been used to punish criminally the author and
distributor of an obnoxious leaflet attacking the Negro race. He
answers that, as applied, the Act denies a liberty secured to him
by the Due Process Clause of the Fourteenth Amendment. What is the
liberty which that clause underwrites?

															The spectrum of views expressed by my seniors shows that
disagreement as to the scope and effect of this Amendment underlies
this, as it has many another, division of the Court. All agree that
the Fourteenth Amendment does confine the power of the State to
make printed Page 343 U. S. 288 words criminal. Whence we are to derive metes and bounds of the
state power is a subject to the confusion of which, I regret to
say, I have contributed -- comforted in the acknowledgment,
however, by recalling that this Amendment is so enigmatic and
abstruse that judges more experienced than I have had to reverse
themselves as to its effect on state power.

															The assumption of other dissents is that the "liberty" which the
Due Process Clause of the Fourteenth Amendment protects against
denial by the States is the literal and identical "freedom of
speech, or of the press" which the First Amendment forbids only
Congress to abridge. The history of criminal libel in America
convinces me that the Fourteenth Amendment did not "incorporate"
the First, that the powers of Congress and of the States over this
subject are not of the same dimensions, and that, because Congress
probably could not enact this law, it does not follow that the
States may not. I As a limitation upon power to punish written or spoken words,
Fourteenth Amendment "liberty" in its context of state powers and
functions has meant and should mean something quite different from
"freedom" in its context of federal powers and functions. [ Footnote 5/1 ]

															This Court has never sustained a federal criminal libel Act. One
section of the Sedition Act of 1798 was close to being a "group
libel" Act. [ Footnote 5/2 ] While
there were convictions Page 343 U. S. 289 under it, no attack on its validity reached this Court. I think
today's better opinion regards the enactment as a breach of the
First Amendment, and certainly Mr. Justice Holmes and Mr. Justice
Brandeis thought so. [ Footnote 5/3 ]
But even in the absence of judicial condemnation, the political
disapproval of the Sedition Act was so emphatic and sustained that
federal prosecution of the press ceased for a century. It was
resumed with indictment of The Indianapolis News and The New York
World for disclosures and criticisms of the Panama Canal
acquisition. Both were indicted in the District of Columbia and
under the District Code, on the ground that some copies circulated
there. That prosecution collapsed when Judge Anderson refused the
Government's application to remove the Indiana defendants to the
District of Columbia for trial. [ Footnote 5/4 ]

															The World, circulated at West Point, was indicted in New York on
the theory that an 1825 Act to protect Page 343 U. S. 290 fortifications assimilated the New York State law punishing
criminal libel. That venture likewise came to grief when Judge
Hough rejected that construction of the federal statute and was
upheld by this Court. United States v. Press Publishing
Co., 219 U. S. 1 (1911).
While there has been a demand from official sources for a
resumption of criminal libel prosecution, it has not been acceded
to. [ Footnote 5/5 ] Thus, while the
jeopardy of such federal prosecutions has never been removed by any
decision of this Court, I should think the validity of a federal
enactment such as this would be extremely doubtful, to say the
least.

															The effect of the First Amendment on congressional power to make
seditious utterance criminal did receive consideration in the
aftermath of the First World War. In such a case, Mr. Justice
Holmes formulated for the Court as "the question in every case" the
"clear and present danger" test. Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . He
and Mr. Justice Brandeis adhered to it as a "rule of reason,"
dissenting when they thought the rest of the Court apostate. Abrams v. United States, 250 U. S. 616 , 250 U. S.
627 -628; Schaefer v. United States, 251 U. S. 466 , 251 U. S.
482 .

															Only after research and deliberation in these cases had
sharpened their perception did these Justices face the free speech
issue as to state power which Mr. Justice Holmes first adverted to,
but left undecided, in Patterson v. Colorado, 205 U.
S. 454 . In 1922, they joined the Court's first decision
on the subject, which declared that

															". . . neither the Fourteenth Amendment nor any other provision
of Page 343 U. S. 291 the Constitution of the United States imposes upon the states
any restrictions about 'freedom of speech.' . . ." Prudential Insurance Co. v. Cheek, 259 U.
S. 530 , 259 U. S.
543 .

															However, these two Justices, who made the only original
contribution to legal thought on the difficult problems bound up in
these Amendments, soon reversed and took the view that the
Fourteenth Amendment did impose some restrictions upon the States.
But it was not premised upon the First Amendment, nor upon any
theory that it was incorporated in the Fourteenth. What they wrote,
with care and circumspection, I accept as the wise and historically
correct view of the Fourteenth Amendment. It was:

															" 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."

															(Emphasis supplied.) Gitlow v. New York, 268 U.
S. 652 , 268 U. S.
672 .

															That reasoning was echoed so recently as 1937, when the Court
explicitly rejected the theory of incorporation and, through Mr.
Justice Cardozo, announced a view, unanimous except for Mr. Justice
Butler, that the Fourteenth did not deflect against the States the
literal language of amendments designed to circumscribe federal
power but qualified state power only by such general restraints as
are essential to "the concept of ordered liberty." Palko v.
Connecticut, 302 U. S. 319 , 302 U. S.
324 -325.

															It is clear that these do not proscribe state criminal libel
Acts. Justices Holmes and Brandeis in 1931 joined Chief Justice
Hughes, who spoke for the Court, in striking down a state Act
because it authorized restraint by injunction Page 343 U. S. 292 previous to publication. He said:

															"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."

															This was amplified:

															"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. . . . The law of criminal libel rests upon that
secure foundation." Near v. Minnesota, 283 U. S. 697 , 283 U. S.
715 .

															So recently as 1942, a unanimous Court, speaking of state power,
said that punishment of libelous words "which by their very
utterance inflict injury or tend to incite an immediate breach of
the peace" has never been thought to raise any constitutional
problem. Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S.
571 -572.

															More than forty State Constitutions, while extending broad
protections to speech and press, reserve a responsibility for their
abuse and implicitly or explicitly recognize validity of criminal
libel laws. [ Footnote 5/6 ] We are
justified Page 343 U. S. 293 in assuming that the men who sponsored the Fourteenth Amendment
in Congress, and those who ratified it in the state legislatures,
knew of such provisions then in many of their state constitutions.
Certainly they were not consciously canceling them or calling them
into question, or we would have some evidence of it. Congresses,
during the period while this Amendment was being considered or was
but freshly adopted, approved constitutions of "reconstructed"
States that expressly mentioned state libel laws, [ Footnote 5/7 ] and also approved similar
constitutions for States erected out of the federal domain.
[ Footnote 5/8 ] Page 343 U. S. 294 Certainly this tolerance of state libel laws by the very authors
and partisans of the Fourteenth Amendment shows either that they
were not intending to incorporate the First Amendment or that they
believed it would not prevent federal libel laws. Adoption of the
incorporation theory today would lead to the dilemma of either
confining the States as closely as the Congress or giving the
Federal Government the latitude appropriate to state governments.
The treatment of libel powers corroborates the conclusions against
the incorporationist theory reached by the most comprehensive and
objective studies of the origin and adoption of the Fourteenth
Amendment. [ Footnote 5/9 ]

															The inappropriateness of a single standard for restricting State
and Nation is indicated by the disparity between their functions
and duties in relation to those freedoms. Criminality of defamation
is predicated upon power either to protect the private right to
enjoy integrity of reputation or the public right to tranquility.
Neither of these are objects of federal cognizance except when
necessary to the accomplishment of some delegated power, such
as Page 343 U. S. 295 protection of interstate commerce. When the Federal Government
puts liberty of press in one scale, it has a very limited duty to
personal reputation or local tranquillity to weigh against it in
the other. But state action affecting speech or press can and
should be weighed against and reconciled with these conflicting
social interests.

															For these reasons, I should not, unless clearly required,
confirm to the Federal Government such latitude as I think a State
reasonably may require for orderly government of its manifold
concerns. The converse of the proposition is that I would not limit
the power of the State with the severity appropriately prescribed
for federal power.

															As the principle by which to judge the constitutionality of this
statute, I accept the dissent in Gitlow and the decision
in Palko. II What restraints upon state power to punish criminal libel are
implied by the "concept of ordered liberty"? Experience by
Anglo-Saxon peoples with defamation and laws to punish it extends
over centuries, and the statute and case books exhibit its
teachings. If one can claim to announce the judgment of legal
history on any subject, it is that criminal libel laws are
consistent with the concept of ordered liberty only when applied
with safeguards evolved to prevent their invasion of freedom of
expression.

															Oppressive application of the English libel laws was partially
checked when Fox's Libel Act of 1972 allowed the jury to determine
whether an accused publication was libelous in character, and more
completely when Lord Campbell's Libel Act of 1943 allowed truth to
be proved as a defense.

															American experience teaches similar lessons. The leading state
case is People v. Croswell, 3 Johns.Cas. 337. Page 343 U. S. 296 Since, as the opinion of this Court now points out, the
Jeffersonian's objection to federal sedition prosecutions was
largely fear of federal usurpation of state powers over the
subject, it was consistent for them to prosecute libels under state
law. Croswell, publisher of the aptly named Wasp, was indicted for
libeling Thomas Jefferson by representing him as unworthy of the
confidence, respect, and attachment of the people. The trial judge
pronounced his statements libelous as a matter of law and allowed
the jury to decide no question except whether the accused had
published them. The defendant was convicted, and, on his appeal,
argued by Alexander Hamilton, the appellate court divided equally.
Justice Kent, however, filed a characteristically learned and
vigorous opinion that the trial court must submit the libelous
character of the article and libelous intent of its printer to
decision by the jury, which was entitled to determine both law and
fact. The public response was such that an early session of the
legislature substantially enacted Kent's contentions. Inasmuch as
no judgment had been entered upon the earlier equal division, the
court, at its August, 1805, term, "in consequence of this
declaratory statute," unanimously awarded a new trial. [ Footnote 5/10 ]

															The New York Constitution at that time contained no free speech
provision, but the case led to a provision included in the
Constitution of 1821 which both followed Fox's Libel Act and
anticipated Lord Campbell's Act, and has remained in the several
constitutions of that State since:

															"Every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the abuse of that
right; and no law shall be passed to restrain or abridge the
liberty to speech, or of the press. In all prosecutions or
indictments Page 343 U. S. 297 for libels, the truth may be given in evidence to the jury; and
if it shall appear to the jury that the matter charged as libellous
is true, and was published with good motives and for justifiable
ends, the party shall be acquitted; and the jury shall have the
right to determine the law and the fact. [ Footnote 5/11 ]"

															It would not be an exaggeration to say that, basically, this
provision of the New York Constitution states the common sense of
American criminal libel law. Twenty-four States of the Union whose
constitutions were framed later substantially adopted it. [ Footnote 5/12 ] Twelve States provide that
press and speech shall be free, but there shall be responsibility
for the abuse. [ Footnote 5/13 ]
Five others provide substantially the same, but add that truth may
be given in evidence in a libel prosecution. [ Footnote 5/14 ] Only five States, whose
constitutions were framed earlier, were content with the generality
about the free press similar to that of Massachusetts. [ Footnote 5/15 ] But all of these States,
apart from constitutional Page 343 U. S. 298 provision, have by decisional law recognized the validity of
criminal libel prosecutions. [ Footnote 5/16 ]

															Because of these safeguards, state libel laws have presented no
threat to a free press comparable to that from federal sources, and
have not proved inconsistent with fundamental liberties. Attacks on
the press by States which were frustrated by this Court in Near
v. Minnesota, supra, and Grosjean v. American Press
Co., 297 U. S. 233 ,
were not by libel laws. For near a century and a half, this Court's
decisions left state criminal libel prosecutions entirely free of
federal constitutional limitations. It is a matter of notoriety
that the press often has provoked hostility, that editors have been
mobbed and horsewhipped, but criminal libel prosecutions have not
been frequent, and, as safeguarded by state law, they have been so
innocuous that chronicles of American journalism give them only
passing mention. [ Footnote
5/17 ]

															This Court, by construction of the Fourteenth Amendment, has
imposed but one addition to the safeguards voluntarily taken upon
the States by themselves. It is that, where expression, oral or
printed, is punished, although it has not actually caused injuries
or disorders, but is thought to have a tendency to do so, the
likelihood of such consequence must not be remote or speculative.
That is the "clear and present danger" test which Mr. Justice
Holmes and Mr. Justice Brandeis, eventually with support of the
Court, thought implied in both the First [ Footnote 5/18 ] and Fourteenth Amendments, [ Footnote 5/19 ] although the former
was Page 343 U. S. 299 not bodily bound up in the latter. Any superficial inconsistency
between applying the same standard but permitting a wider range of
action to the States is resolved upon reference to the latter part
of the statement of the formula: clear and present danger of those
substantive evils which the legislature has a right to prevent. The
evils at which Congress may aim, and in so doing come into conflict
with free speech, will be relatively few, since it is a government
of limited powers. Because the States may reach more evils, they
will have wider range to punish speech which presents clear and
present danger of bringing about those evils.

															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. [ Footnote 5/20 ]
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 Page 343 U. S. 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? Furthermore, the record indicates that
defendant was asked to state what he had meant by the use of
certain phrases, and the reason for forming the White Circle League
-- statements which apparently bore on the issue of motive and
ends. But the trial court sustained a sweeping objection "to this
whole line of examination." The Supreme Court of Illinois noted the
offer of proof of truth and its exclusion, and apparently went on
to rule as a matter of law that the statement was not published for
justifiable ends. At all events, it is clear that the defense was
ruled out as matter of law, and defendant was never allowed to
present it for decision by either court or jury upon the facts, a
practice which I think is contrary to the overwhelming verdict of
Anglo-Saxon history and practice. I do not intimate that this
defendant stood even a remote chance of justifying what impresses
me, as it did the trial court, as reckless and vicious libel. But
the point is that his evidence, proffered for that purpose, was
excluded instead of being Page 343 U. S. 301 received and evaluated. 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.

															The same may be said of the right to comment upon matters of
public interest insofar as the statement includes matters of
opinion, a point, however, which the defense may have inadequately
raised. When any naturally cohesive or artificially organized group
possesses a racial or sectarian solidarity which is or may be
exploited to influence public affairs, that group becomes a
legitimate subject for public comment. Of course, one can only
deplore the habitual intemperance and bitter disparagement which
characterizes most such comment. While I support the right of a
State to place decent bounds upon it, I am not ready to hold that
group purposes, characteristics and histories are to be immunized
from comment or may be discussed only at the risk of prosecution
free of all usual safeguards.

															Another defense almost universally recognized, which it seems
the jury were not allowed to consider here, is that of privilege.
Petition for redress of grievances is specifically privileged by
many State Constitutions. I do not think we should hold this whole
document to be constitutionally privileged just because, in part,
it stimulates a petition for redress of grievances. A court or jury
could have found that its primary purpose was not to petition, but
to appeal for members and contributions to the White Circle League.
If some part of it were privileged, that, so it has been held, does
not extend constitutional protection to unprivileged matter. Cf. Valentine v. Chrestensen, 316 U. S.
52 . But the question of privilege seems Page 343 U. S. 302 not to have been specifically passed on by the court, and
certainly was not submitted for the jury's consideration.

															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.

															Referring to the clear and present danger doctrine in Dennis
v. United States, 341 U. S. 494 , 341 U. S. 568 ,
I said:

															"I would save it, unmodified, for application as a 'rule of
reason' in the kind of case for which it was devised. When the
issue is criminality of a hotheaded 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 Page 343 U. S. 303 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.
. . ."

															Not the least of the virtues of this formula in such tendency
cases is that it compels the prosecution to make up its mind what
particular evil it sought or is seeking to prevent. It must relate
its interference with speech or press to some identifiable evil to
be prevented. Words on their own account are not to be punished in
such cases, but are reachable only as the root of punishable
evils.

															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.

															Its application is important in this case because it takes
account of the particular form, time, place, and manner of
communication in question.

															"The moving picture screen, the radio, the newspaper, the
handbill, the sound truck and the street corner orator have
differing natures, values, abuses and dangers. Each, in my view, is
a law unto itself. . . ." Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 97 . It
would consider whether a leaflet is so emotionally exciting to
immediate action as the spoken word, especially Page 343 U. S. 304 the incendiary street or public speech. Terminiello v. City
of Chicago, 337 U. S. 1 , 337 U. S. 13 ; Kunz v. New York, 340 U. S. 290 , 340 U. S. 295 .
It will inquire whether this publication was obviously so foul and
extreme as to defeat its own ends, whether its appeals for money --
which has a cooling effect on many persons -- would not negative
its inflammatory effect, whether it would not impress the passer-by
as the work of an irresponsible who needed mental examination.

															One of the merits of the clear and present danger test is that
the triers of fact would take into account the realities of race
relations and any smouldering fires to be fanned into holocausts.
Such consideration might well warrant a conviction here when it
would not in another and different environment.

															Group libel statutes represent a commendable desire to reduce
sinister abuses of our freedoms of expression -- abuses which I
have had occasion to learn can tear apart a society, brutalize its
dominant elements, and persecute, even to extermination, its
minorities. While laws or prosecutions might not alleviate racial
or sectarian hatreds and may even invest scoundrels with a specious
martyrdom, I should be loath to foreclose the States from a
considerable latitude of experimentation in this field. Such
efforts, if properly applied, do not justify frenetic forebodings
of crushed liberty. But these acts present most difficult policy
and technical problems, as thoughtful writers who have canvassed
the problem more comprehensively than is appropriate in a judicial
opinion have well pointed out. [ Footnote 5/21 ]

															No group interest in any particular prosecution should forget
that the shoe may be on the other foot in some prosecution
tomorrow. In these, as in other matters, our Page 343 U. S. 305 guiding spirit should be that each freedom is balanced with a
responsibility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal
libel, which concedes the power to the State, but only as a power
restrained by recognition of individual rights. I cannot escape the
conclusion that, as the Act has been applied in this case, it lost
sight of that rights.

															[ Footnote 5/1 ]

															First Amendment: "Congress shall make no law . . . abridging the
freedom of speech, or of the press. . . ." Fourteenth Amendment: "
. . . nor shall any State deprive any person of life, liberty, or
property, without due process of law. . . ."

															[ Footnote 5/2 ]

															1 Stat. 596 (1798) § 2:

															" And be it further enacted, That if any person shall
write, print, utter or publish . . . 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 . . . , such person . . . shall be punished by a fine not
exceeding two thousand dollars, and by imprisonment not exceeding
two years."

															Section 3:

															". . . it shall be lawful for the defendant . . . to give in
evidence in his defence, the truth of the matter contained in the
publication charged as a libel. And the jury who shall try the
cause shall have a right to determine the law and the fact, under
the direction of the court, as in other cases."

															[ Footnote 5/3 ] Abrams v. United States, 250 U.
S. 616 , 250 U. S.
630 .

															[ Footnote 5/4 ] United States v. Smith, 173 F. 227. In discharging the
defendants, Judge Anderson said:

															"To my mind, that man has read the history of our institutions
to little purpose who does not look with grave apprehension upon
the possibility of the success of a proceeding such as this. If the
history of liberty means anything, if constitutional guaranties are
worth anything, this proceeding must fail."

															"If the prosecuting officers have the authority to select the
tribunal, if there be more than one tribunal to select from, if the
government has that power, and can drag citizens from distant
states to the capital of the nation, there to be tried, then, as
Judge Cooley says, this is a strange result of a revolution where
one of the grievances complained of was the assertion of the right
to send parties abroad for trial."

															173 F. at 232.

															[ Footnote 5/5 ]

															Riesman, "Group Libel," 42 Col.L.Rev. 727, 748. See
also 87 Cong.Rec. 5830-5841.

															[ Footnote 5/6 ]

															The following is a list of such state constitutional provisions,
coupled with the year of the adoption of the constitution in which
they are contained: Alabama, 1901, Art. I, §§ 4, 12; Arizona, 1912,
Art. II, § 6; Arkansas, 1874, Art. II, § 6; California, 1879, Art.
I, § 9; Colorado, 1876, Art. II, § 10; Delaware, 1897, Art. I, § 5;
Florida, 1887, Declaration of Rights, § 13; Georgia, 1945, Art. I,
§ 1, par. 15; Idaho, 1890, Art. I, § 9; Illinois, 1870, Art. II, §
4; Indiana, 1851, Art. I, § 9; Iowa, 1857, Art. I, § 7, I.C.A.;
Kansas, 1859, Bill of Rights, § 11; Kentucky, 1891, §§ 8, 9;
Louisiana, 1921, Art. I, §3; Maine, 1876, Art. I, § 4; Maryland,
1867, Declaration of Rights, Art. 40; Michigan, 1908, Art. II, § 4;
Minnesota, 1857, Art. I, § 3; Mississippi, 1890, Art. III, § 13;
Missouri, 1945, Art. I, § 8; Montana, 1889, Art. III, § 10;
Nebraska, 1875, Art. I, § 5; Nevada, 1864, Art. I, § 9; New Jersey,
1947, Art. I, par. 6; New Mexico, 1912, Art. II, § 17; New York,
1938, Art. I, § 8; North Carolina, 1876, Art. I, § 20; North
Dakota, 1889, Art. I, § 9; Ohio, 1851, Art. I, § 11; Oklahoma,
1907, Art. II, § 22; Oregon, 1859, Art. I, § 8; Pennsylvania, 1874,
Art. I, § 7; Rhode Island, 1843, Art. I, § 20; South Dakota, 1889,
Art. VI, § 5; Tennessee, 1870, Art. I, § 19; Texas, 1876, Art. I, §
8; Utah, 1895, Art. I, § 15; Virginia, 1902, Art. I, § 12;
Washington, 1889, Art. I, § 5; West Virginia, 1872, Art. III, § 7;
Wisconsin, 1848, Art. I, § 3; Wyoming, 1889, Art. I, § 20.

															[ Footnote 5/7 ]

															Congress required that reconstructed States approve state
constitutions consistent with the Federal Constitution, and also
that each State ratify the Fourteenth Amendment. Examples of state
constitutional provisions expressly referring to libel, but which
constitutions were nevertheless approved by Congress, follow:
Arkansas: Const.1868, Art. I, § 2 provides that truth coupled with
good motives shall be a complete defense to a criminal libel
prosecution; Arkansas, readmitted by 15 Stat. 72 (1868); Florida:
Const. 1868, Art. I, § 10, provides that truth coupled with good
motives shall be a complete defense to a criminal libel
prosecution; Florida, readmitted by 15 Stat. 73 (1868);
Mississippi: Const.1868, Art. I, § 4 enacts Fox's Libel Act in
substance; Mississippi, readmitted by 16 Stat. 67 (1870); South
Carolina: Const.1868, Art. I, § 8 enacts Fox's Libel Act in
substance, and provides that truth and good motives shall be a
complete defense to a criminal libel prosecution; South Carolina,
readmitted by 15 Stat. 73 (1868); Texas: Const. 1868, Art. I, § 6
enacts Fox's Libel Act in substance; Texas, readmitted by 16 Stat.
80 (1870).

															[ Footnote 5/8 ]

															In the case of States erected out of the public domain, one of
two procedures was generally followed. Either Congress would itself
enact a statute admitting a particular State, stating therein that
the constitution of the State in question was consistent with the
Federal Constitution, or else the Congressional Act would provide
that the State would be admitted upon its adoption of a
constitution consistent with the Federal Constitution. In the
latter case, the actual admission occurred by proclamation of the
President.

															Colorado: Art. II, § 10 enacts Fox's Libel Act in substance, and
provides that truth and good motives shall constitute a complete
defense in a libel prosecution; admitted by 18 Stat. 474 (1875), 19
Stat. 665 (1876); Montana: Art. III, § 10 enacts Fox's Libel Act in
substance; admitted by 25 Stat. 676 (1889), 26 Stat. 1551 (1889);
New Mexico: Art. II, § 17 provides that truth and good motives
shall constitute a complete defense to a criminal libel
prosecution; admitted by 36 Stat. 557 (1910), 37 Stat. 39 (1911);
Utah: Art. I, § 15, like Colorado provisions; admitted by 28 Stat.
107 (1894), 29 Stat. 876 (1896); Wyoming: Art. I, § 20, like
Colorado provisions; admitted by 26 Stat. 222 (1890).

															[ Footnote 5/9 ] See Fairman and Morrison, Does the Fourteenth Amendment
Incorporate the Bill of Rights? 2 Stan.L.Rev. 5-173.

															[ Footnote 5/10 ]

															3 Johns.Cas. 337, 413.

															[ Footnote 5/11 ]

															Const.1821, Art. VII, § 8; Const.1846, Art. I, § 8; Const.1894,
Art. I, § 8; Const.1938, Art. I, § 8.

															[ Footnote 5/12 ]

															Arkansas, California, Colorado, Delaware, Florida, Iowa, Kansas,
Maine, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania,
Tennessee, Texas, Utah, Wisconsin, and Wyoming. For citations to
article and section, see 343
U.S. 250 fn5/6|>n. 6, supra. [ Footnote 5/13 ]

															Arizona, Georgia, Idaho, Kentucky, Louisiana, Maryland,
Michigan, Minnesota, North Carolina, Oregon, Virginia, and
Washington. The Georgia provision, Const.1945, Art. I, § 1, par.
15, representative of the rest, reads: " . . . any person may
speak, write and publish his sentiments, on all subjects, being
responsible for the abuse of that liberty." For citations to
article and section, see 343
U.S. 250 fn5/6|>n. 6, supra. [ Footnote 5/14 ]

															Alabama, Illinois, Indiana, Rhode Island, and West Virginia. For
citations to article and section, see 343
U.S. 250 fn5/6|>n. 6, supra. [ Footnote 5/15 ]

															Connecticut, Const.1818, Art. I, § 6; New Hampshire, Const.1784,
Part I, Art. 22; South Carolina, Const.1895, Art. I, § 4; Vermont,
Const.1793, c. I, Art. 13. The Massachusetts provision, Const.1780,
Part I, Art. XVI reads as follows: "The liberty of the press is
essential to the security of freedom in a state; it ought not,
therefore, to be restrained in this Commonwealth."

															[ Footnote 5/16 ] State v. Gardner, 112 Conn. 121, 151 A. 349; Commonwealth v. Szliakys, 254 Mass. 424, 150 N.E. 190; Noyes v. Thorpe, 73 N.H. 481, 62 A. 787, 12 L.R.A., N.S.,
636; State v. Gurry, 163 S.C. 1, 161 S.E. 191; State
v. Colby, 98 Vt. 96, 126 A. 510. Decisional law of other
States is collected in Note, 1 Bflo.L.Rev. 258.

															[ Footnote 5/17 ]

															Lee, "A History of American Journalism" (Garden City, 1923).

															[ Footnote 5/18 ] Schenck v. United States, 249 U. S.
47 , 249 U. S.
52 .

															[ Footnote 5/19 ] Gitlow v. New York, 268 U. S. 652 , 268 U. S.
672 .

															[ Footnote 5/20 ]

															It appears that group libel was not unknown to common law. See Scott, Publishing False News, 30 Can.B.Rev. 37,
42-43.

															[ Footnote 5/21 ]

															Tannenhaus, Group Libel, 35 Cornell L.Q. 261; Riesman, Democracy
and Defamation: Control of Group Libel, 42 Col.L.Rev. 727; see
also Note, 1 Bflo.L.Rev. 258.