U.S. Supreme Court Abrams v. United States, 250
U.S. 616 (1919) Abrams v. United
States No. 316 Argued October 21, 22,
1919 Decided November 10,
1919 250
U.S. 616 ERROR TO THE DISTRICT COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK Syllabus Evidence sufficient to sustain anyone of several counts of an
indictment will sustain a verdict and judgment of guilty under all
if the sentence does not exceed that which might lawfully have been
imposed under any single count. P. 250 U. S.
619 .

															Evidence held sufficient to sustain a conviction of
conspiracy to violate the Espionage Act by uttering, etc.,
circulars intended to provoke and encourage resistance to the
United States in the war with Germany, and by inciting and
advocating, through such circulars, resort to a general strike of
workers in ammunition factories for the purpose of curtailing
production of ordnance and munitions essential to the prosecution
of the war. Pp. 250 U. S. 619 et seq. When prosecuted under the Espionage Act, persons who sought to
effectuate a plan of action which necessarily, before it could be
realized, involved the defeat of the plans of the United States for
the conduct of the war with Germany must be held to have intended
that result notwithstanding their ultimate purpose may have been to
prevent interference with the Russian Revolution. P. 250 U. S.
621 .

															Affirmed.

															The case is stated in the opinion.

															MR. JUSTICE CLARKE delivered the opinion of the court.

															On a single indictment, containing four counts, the five
plaintiffs in error, hereinafter designated the defendants, were
convicted of conspiring to violate provisions of the Page 250 U. S. 617 Espionage Act of Congress (§ 3, Title I, of Act approved June
15, 1917, as amended May 16, 1918, 40 Stat. 553).

															Each of the first three counts charged the defendants with
conspiring, when the United States was at war with the Imperial
Government of Germany, to unlawfully utter, print, write and
publish: in the first count, "disloyal, scurrilous and abusive
language about the form of Government of the United States;" in the
second count, language "intended to bring the form of Government of
the United States into contempt, scorn, contumely and disrepute;"
and in the third count, language "intended to incite, provoke and
encourage resistance to the United States in said war." The charge
in the fourth count was that the defendants conspired,

															"when the United States was at war with the Imperial German
Government, unlawfully and willfully, by utterance, writing,
printing and publication, to urge, incite and advocate curtailment
of production of things and products, to-wit, ordnance and
ammunition, necessary and essential to the prosecution of the
war."

															The offenses were charged in the language of the act of
Congress.

															It was charged in each count of the indictment that it was a
part of the conspiracy that the defendants would attempt to
accomplish their unlawful purpose by printing, writing and
distributing in the City of New York many copies of a leaflet or
circular, printed in the English language, and of another printed
in the Yiddish language, copies of which, properly identified, were
attached to the indictment.

															All of the five defendants were born in Russia. They were
intelligent, had considerable schooling, and, at the time they were
arrested, they had lived in the United States terms varying from
five to ten years, but none of them had applied for naturalization.
Four of them testified as witnesses in their own behalf, and, of
these, three frankly avowed that they were "rebels,"
"revolutionists," Page 250 U. S. 618 "anarchists," that they did not believe in government in any
form, and they declared that they had no interest whatever in the
Government of the United States. The fourth defendant testified
that he was a "socialist," and believed in "a proper kind of
government, not capitalistic," but, in his classification, the
Government of the United States was "capitalistic."

															It was admitted on the trial that the defendants had united to
print and distribute the described circulars, and that five
thousand of them had been printed and distributed about the 22nd
day of August, 1918. The group had a meeting place in New York
City, in rooms rented by defendant Abrams under an assumed name,
and there the subject of printing the circulars was discussed about
two weeks before the defendants were arrested. The defendant
Abrams, although not a printer, on July 27, 1918, purchased the
printing outfit with which the circulars were printed, and
installed it in a basement room where the work was done at night.
The circulars were distributed, some by throwing them from a window
of a building where one of the defendants was employed and others
secretly, in New York City.

															The defendants pleaded "not guilty," and the case of the
Government consisted in showing the facts we have stated, and in
introducing in evidence copies of the two printed circulars
attached to the indictment, a sheet entitled "Revolutionists Unite
for Action," written by the defendant Lipman, and found on him when
he was arrested, and another paper, found at the headquarters of
the group, and for which Abrams assumed responsibility.

															Thus, the conspiracy and the doing of the overt acts charged
were largely admitted, and were fully established.

															On the record thus described, it is argued, somewhat faintly,
that the acts charged against the defendants were not unlawful
because within the protection of that freedom Page 250 U. S. 619 of speech and of the press which is guaranteed by the First
Amendment to the Constitution of the United States, and that the
entire Espionage Act is unconstitutional because in conflict with
that Amendment.

															This contention is sufficiently discussed and is definitely
negatived in Schenck v. United States and Baer v.
United States, 249 U. S. 47 , and
in Frohwerk v. United States, 249 U.
S. 204 .

															The claim chiefly elaborated upon by the defendants in the oral
argument and in their brief is that there is no substantial
evidence in this record to support the judgment upon the verdict of
guilty, and that the motion of the defendants for an instructed
verdict in their favor was erroneously denied. A question of law is
thus presented, which calls for an examination of the record not
for the purpose of weighing conflicting testimony, but only to
determine whether there was some evidence, competent and
substantial, before the jury, fairly tending to sustain the
verdict. Troxell v. Delaware, Lackawanna & Western R.R.
Co., 227 U. S. 434 , 227 U. S. 442 ; Lancaster v. Collins, 115 U. S. 222 , 115 U. S. 225 ; Chicago & Northwestern Ry. Co. v. Ohle, 117 U.
S. 123 , 117 U. S. 129 . We
shall not need to consider the sufficiency, under the rule just
stated, of the evidence introduced as to all of the counts of the
indictment, for, since the sentence imposed did not exceed that
which might lawfully have been imposed under any single count, the
judgment upon the verdict of the jury must be affirmed if the
evidence is sufficient to sustain anyone of the counts. Evans
v. United States, 153 U. S. 608 ; Claassen v. United States, 142 U.
S. 140 ; Debs v. United States, 249 U.
S. 211 , 249 U. S.
216 .

															The first of the two articles attached to the indictment is
conspicuously headed, "The Hypocrisy of the United States and her
Allies." After denouncing President Wilson as a hypocrite and a
coward because troops were sent into Russia, it proceeds to assail
our Government in general, saying: Page 250 U. S. 620 "His [the President's] shameful, cowardly silence about the
intervention in Russia reveals the hypocrisy of the plutocratic
gang in Washington and vicinity."

															It continues:

															"He [the President] is too much of a coward to come out openly
and say: 'We capitalistic nations cannot afford to have a
proletarian republic in Russia.'"

															Among the capitalistic nations, Abrams testified, the United
States was included.

															Growing more inflammatory as it proceeds, the circular
culminates in:

															"The Russian Revolution cries: Workers of the World! Awake!
Rise! Put down your enemy and mine!"

															"Yes! friends, there is only one enemy of the workers of the
world and that is CAPITALISM."

															This is clearly an appeal to the "workers" of this country to
arise and put down by force the Government of the United States
which they characterize as their "hypocritical," "cowardly" and
"capitalistic" enemy.

															It concludes:

															"Awake! Awake! you Workers of the World!"

															"REVOLUTIONISTS"

															The second of the articles was printed in the Yiddish language
and, in the translation, is headed, "Workers -- Wake up." After
referring to "his Majesty, Mr. Wilson, and the rest of the gang;
dogs of all colors," it continues:

															"Workers, Russian emigrants, you who had the least belief in the
honesty of our Government," which defendants admitted
referred to the United States Government,

															"must now throw away all confidence, must spit in the face the
false, hypocritic, military propaganda which has fooled you so
relentlessly, calling forth your sympathy, your help, to the
prosecution of the war."

															The purpose of this obviously was to persuade the persons to
whom it was addressed to turn a deaf ear to patriotic Page 250 U. S. 621 appeals in behalf of the Government of the United States, and to
cease to render it assistance in the prosecution of the war.

															It goes on:

															"With the money which you have loaned, or are going to loan
them, they will make bullets not only for the Germans, but also for
the Workers Soviets of Russia. Workers in the ammunition
factories, you are producing bullets, bayonets, cannon, to murder
not only the Germans, but also your dearest, best, who are in
Russia and are fighting for freedom. "

															It will not do to say, as is now argued, that the only intent of
these defendants was to prevent injury to the Russian cause. Men
must be held to have intended, and to be accountable for, the
effects which their acts were likely to produce. Even if their
primary purpose and intent was to aid the cause of the Russian
Revolution, the plan of action which they adopted necessarily
involved, before it could be realized, defeat of the war program of
the United States, for the obvious effect of this appeal, if it
should become effective, as they hoped it might, would be to
persuade persons of character such as those whom they regarded
themselves as addressing, not to aid government loans, and not to
work in ammunition factories where their work would produce
"bullets, bayonets, cannon" and other munitions of war the use of
which would cause the "murder" of Germans and Russians.

															Again, the spirit becomes more bitter as it proceed to declare
that --

															"America and her Allies have betrayed (the Workers). Their
robberish aims are clear to all men. The destruction of the Russian
Revolution, that is the politics of the march to Russia."

															" Workers, our reply to the barbaric intervention has to be a
general strike! An open challenge only will let the Government
know that not only the Russian Worker fights for Page 250 U. S. 622 freedom, but also here in America lives the spirit of
Revolution."

															This is not an attempt to bring about a change of administration
by candid discussion, for, no matter what may have incited the
outbreak on the part of the defendant anarchists, the manifest
purpose of such a publication was to create an attempt to defeat
the war plans of the Government of the United States by bringing
upon the country the paralysis of a general strike, thereby
arresting the production of all munitions and other things
essential to the conduct of the war.

															This purpose is emphasized in the next paragraph, which
reads:

															"Do not let the Government scare you with their wild punishment
in prisons, hanging and shooting. We must not and will not betray
the splendid fighters of Russia. Workers, up to
fight. "

															After more of the same kind, the circular concludes:

															"Woe unto those who will be in the way of progress. Let
solidarity live!"

															It is signed, "The Rebels."

															That the interpretation we have put upon these articles,
circulated in the greatest port of our land, from which great
numbers of soldiers were at the time taking ship daily, and in
which great quantities of war supplies of every kind were at the
time being manufactured for transportation overseas, is not only
the fair interpretation of them, but that it is the meaning which
their authors consciously intended should be conveyed by them to
others is further shown by the additional writings found in the
meeting place of the defendant group and on the person of one of
them. One of these circulars is headed: "Revolutionists! Unite for
Action!"

															After denouncing the President as "Our Kaiser" and the hypocrisy
of the United States and her Allies, this article concludes: Page 250 U. S. 623 "Socialists, Anarchists, Industrial Workers of the World,
Socialists, Labor party men and other revolutionary organizations, Unite for action, and let us save the Workers' Republic of
Russia,"

															" Know you lovers of freedom that, in order to save the
Russian revolution, we must keep the armies of the allied countries
busy at home. "

															Thus was again avowed the purpose to throw the country into a
state of revolution if possible, and to thereby frustrate the
military program of the Government.

															The remaining article, after denouncing the resident for what is
characterized as hostility to the Russian revolution,
continues:

															"We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will
participate in that bloody conspiracy against Russia, to create
so great a disturbance that the autocrats of America shall be
compelled to keep their armies at home, and not be able to spare
any for Russia. "

															It concludes with this definite threat of armed rebellion:

															"If they will use arms against the Russian people to enforce
their standard of order, so will we use arms, and they
shall never see the ruin of the Russian Revolution."

															These excerpts sufficiently show that, while the immediate
occasion for this particular outbreak of lawlessness on the part of
the defendant alien anarchists may have been resentment caused by
our Government's sending troops into Russia as a strategic
operation against the Germans on the eastern battle front, yet the
plain purpose of their propaganda was to excite, at the supreme
crisis of the war, disaffection, sedition, riots, and, as they
hoped, revolution, in this country for the purpose of embarrassing,
and, if possible, defeating the military plans of the Government in
Europe. A technical distinction may perhaps be taken between
disloyal and abusive language applied to the form of our
government or language intended to bring the form Page 250 U. S. 624 of our government into contempt and disrepute, and language of
like character and intended to produce like results directed
against the President and Congress, the agencies through which that
form of government must function in time of war. But it is not
necessary to a decision of this case to consider whether such
distinction is vital or merely formal, for the language of these
circulars was obviously intended to provoke and to encourage
resistance to the United States in the war, as the third count
runs, and the defendants, in terms, plainly urged and advocated a
resort to a general strike of workers in ammunition factories for
the purpose of curtailing the production of ordnance and munitions
necessary and essential to the prosecution of the war as is charged
in the fourth count. Thus, it is clear not only that some evidence,
but that much persuasive evidence, was before the jury tending to
prove that the defendants were guilty as charged in both the third
and fourth counts of the indictment, and, under the long
established rule of law hereinbefore stated, the judgment of the
District Court must be Affirmed. MR. JUSTICE HOLMES dissenting.

															This indictment is founded wholly upon the publication of two
leaflets which I shall describe in a moment. The first count
charges a conspiracy pending the war with Germany to publish
abusive language about the form of government of the United States,
laying the preparation and publishing of the first leaflet as overt
acts. The second count charges a conspiracy pending the war to
publish language intended to bring the form of government into
contempt, laying the preparation and publishing of the two leaflets
as overt acts. The third count alleges a conspiracy to encourage
resistance to the United States in the same war, and to attempt to
effectuate the purpose by publishing the same leaflets. The fourth
count lays a conspiracy Page 250 U. S. 625 to incite curtailment of production of things necessary to the
prosecution of the war and to attempt to accomplish it by
publishing the second leaflet, to which I have referred.

															The first of these leaflets says that the President's cowardly
silence about the intervention in Russia reveals the hypocrisy of
the plutocratic gang in Washington. It intimates that "German
militarism combined with allied capitalism to crush the Russian
evolution " -- goes on that the tyrants of the world fight each
other until they see a common enemy -- working class enlightenment,
when they combine to crush it, and that now militarism and
capitalism combined, though not openly, to crush the Russian
revolution. It says that there is only one enemy of the workers of
the world, and that is capitalism; that it is a crime for workers
of America, &c., to fight the workers' republic of Russia, and
ends "Awake! Awake, you Workers of the World, Revolutionists!" A
note adds

															"It is absurd to call us pro-German. We hate and despise German
militarism more than do you hypocritical tyrants. We have more
reasons for denouncing German militarism than has the coward of the
White House."

															The other leaflet, headed "Workers -- Wake Up," with abusive
language says that America together with the Allies will march for
Russia to help the Czecko-Slovaks in their struggle against the
Bolsheviki, and that this time the hypocrites shall not fool the
Russian emigrants and friends of Russia in America. It tells the
Russian emigrants that they now must spit in the face of the false
military propaganda by which their sympathy and help to the
prosecution of the war have been called forth, and says that, with
the money they have lent or are going to lend, "they will make
bullets not only for the Germans, but also for the Workers Soviets
of Russia," and further,

															"Workers in the ammunition factories, you are producing bullets,
bayonets, cannon, to murder not only the Germans, Page 250 U. S. 626 but also your dearest, best, who are in Russia and are fighting
for freedom."

															It then appeals to the same Russian emigrants at some length not
to consent to the "inquisitionary expedition to Russia," and says
that the destruction of the Russian revolution is "the politics of
the march to Russia." The leaflet winds up by saying "Workers, our
reply to this barbaric intervention has to be a general strike!"
and, after a few words on the spirit of revolution, exhortations
not to be afraid, and some usual tall talk ends, "Woe unto those
who will be in the way of progress. Let solidarity live! The
Rebels."

															No argument seems to me necessary to show that these
pronunciamentos in no way attack the form of government of the
United States, or that they do not support either of the first two
counts. What little I have to say about the third count may be
postponed until I have considered the fourth. With regard to that,
it seems too plain to be denied that the suggestion to workers in
the ammunition factories that they are producing bullets to murder
their dearest, and the further advocacy of a general strike, both
in the second leaflet, do urge curtailment of production of things
necessary to the prosecution of the war within the meaning of the
Act of May 16, 1918, c. 75, 40 Stat. 553, amending § 3 of the
earlier Act of 1917. But to make the conduct criminal, that statute
requires that it should be "with intent by such curtailment to
cripple or hinder the United States in the prosecution of the war."
It seems to me that no such intent is proved.

															I am aware, of course, that the word intent as vaguely used in
ordinary legal discussion means no more than knowledge at the time
of the act that the consequences said to be intended will ensue.
Even less than that will satisfy the general principle of civil and
criminal liability. A man may have to pay damages, may be sent to
prison, at common law might be hanged, if, at the time of his
act, Page 250 U. S. 627 he knew facts from which common experience showed that the
consequences would follow, whether he individually could foresee
them or not. But, when words are used exactly, a deed is not done
with intent to produce a consequence unless that consequence is the
aim of the deed. It may be obvious, and obvious to the actor, that
the consequence will follow, and he may be liable for it even if he
regrets it, but he does not do the act with intent to produce it
unless the aim to produce it is the proximate motive of the
specific act, although there may be some deeper motive behind.

															It seems to me that this statute must be taken to use its words
in a strict and accurate sense. They would be absurd in any other.
A patriot might think that we were wasting money on aeroplanes, or
making more cannon of a certain kind than we needed, and might
advocate curtailment with success, yet, even if it turned out that
the curtailment hindered and was thought by other minds to have
been obviously likely to hinder the United States in the
prosecution of the war, no one would hold such conduct a crime. I
admit that my illustration does not answer all that might be said,
but it is enough to show what I think, and to let me pass to a more
important aspect of the case. I refer to the First Amendment to the
Constitution, that Congress shall make no law abridging the freedom
of speech.

															I never have seen any reason to doubt that the questions of law
that alone were before this Court in the cases of Schenck, Frohwerk and Debs, 249 U. S. 249 U.S.
47, 249 U. S. 204 , 249 U. S. 211 ,
were rightly decided. I do not doubt for a moment that, by the same
reasoning that would justify punishing persuasion to murder, the
United States constitutionally may punish speech that produces or
is intended to produce a clear and imminent danger that it will
bring about forthwith certain substantive evils that the United
States constitutionally may seek to prevent. The power undoubtedly
is Page 250 U. S. 628 greater in time of war than in time of peace, because war opens
dangers that do not exist at other times.

															But, as against dangers peculiar to war, as against others, the
principle of the right to free speech is always the same. It is
only the present danger of immediate evil or an intent to bring it
about that warrants Congress in setting a limit to the expression
of opinion where private rights are not concerned. Congress
certainly cannot forbid all effort to change the mind of the
country. Now nobody can suppose that the surreptitious publishing
of a silly leaflet by an unknown man, without more, would present
any immediate danger that its opinions would hinder the success of
the government arms or have any appreciable tendency to do so.
Publishing those opinions for the very purpose of obstructing,
however, might indicate a greater danger, and, at any rate, would
have the quality of an attempt. So I assume that the second
leaflet, if published for the purposes alleged in the fourth count,
might be punishable. But it seems pretty clear to me that nothing
less than that would bring these papers within the scope of this
law. An actual intent in the sense that I have explained is
necessary to constitute an attempt, where a further act of the same
individual is required to complete the substantive crime, for
reasons given in Swift & Co. v. United States, 196 U. S. 375 , 196 U. S. 396 .
It is necessary where the success of the attempt depends upon
others because, if that intent is not present, the actor's aim may
be accomplished without bringing about the evils sought to be
checked. An intent to prevent interference with the revolution in
Russia might have been satisfied without any hindrance to carrying
on the war in which we were engaged.

															I do not see how anyone can find the intent required by the
statute in any of the defendants' words. The second leaflet is the
only one that affords even a foundation for the charge, and there,
without invoking the hatred of German militarism expressed in the
former one, it is evident Page 250 U. S. 629 from the beginning to the end that the only object of the paper
is to help Russia and stop American intervention there against the
popular government -- not to impede the United States in the war
that it was carrying on. To say that two phrases, taken literally,
might import a suggestion of conduct that would have interference
with the war as an indirect and probably undesired effect seems to
me by no means enough to show an attempt to produce that
effect.

															I return for a moment to the third count. That charges an intent
to provoke resistance to the United States in its war with Germany.
Taking the clause in the statute that deals with that, in
connection with the other elaborate provisions of the act, I think
that resistance to the United States means some forcible act of
opposition to some proceeding of the United States in pursuance of
the war. I think the intent must be the specific intent that I have
described, and, for the reasons that I have given, I think that no
such intent was proved or existed in fact. I also think that there
is no hint at resistance to the United States as I construe the
phrase.

															In this case, sentences of twenty years' imprisonment have been
imposed for the publishing of two leaflets that I believe the
defendants had as much right to publish as the Government has to
publish the Constitution of the United States now vainly invoked by
them. Even if I am technically wrong, and enough can be squeezed
from these poor and puny anonymities to turn the color of legal
litmus paper, I will add, even if what I think the necessary intent
were shown, the most nominal punishment seems to me all that
possibly could be inflicted, unless the defendants are to be made
to suffer not for what the indictment alleges, but for the creed
that they avow -- a creed that I believe to be the creed of
ignorance and immaturity when honestly held, as I see no reason to
doubt that it was held here, but which, although made the subject
of examination at the Page 250 U. S. 630 trial, no one has a right even to consider in dealing with the
charges before the Court.

															Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power, and
want a certain result with all your heart, you naturally express
your wishes in law, and sweep away all opposition. To allow
opposition by speech seems to indicate that you think the speech
impotent, as when a man says that he has squared the circle, or
that you do not care wholeheartedly for the result, or that you
doubt either your power or your premises. But when men have
realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their
own conduct that the ultimate good desired is better reached by
free trade in ideas -- that the best test of truth is the power of
the thought to get itself accepted in the competition of the
market, and that truth is the only ground upon which their wishes
safely can be carried out. That, at any rate, is the theory of our
Constitution. It is an experiment, as all life is an experiment.
Every year, if not every day, we have to wager our salvation upon
some prophecy based upon imperfect knowledge. While that experiment
is part of our system, I think that we should be eternally vigilant
against attempts to check the expression of opinions that we loathe
and believe to be fraught with death, unless they so imminently
threaten immediate interference with the lawful and pressing
purposes of the law that an immediate check is required to save the
country. I wholly disagree with the argument of the Government that
the First Amendment left the common law as to seditious libel in
force. History seems to me against the notion. I had conceived that
the United States, through many years, had shown its repentance for
the Sedition Act of 1798, by repaying fines that it imposed. Only
the emergency that makes it immediately dangerous to leave the
correction of evil counsels to time warrants Page 250 U. S. 631 making any exception to the sweeping command, "Congress shall
make no law . . . abridging the freedom of speech." Of course, I am
speaking only of expressions of opinion and exhortations, which
were all that were uttered here, but I regret that I cannot put
into more impressive words my belief that, in their conviction upon
this indictment, the defendants were deprived of their rights under
the Constitution of the United States.

															MR. JUSTICE BRANDEIS concurs with the foregoing opinion.


U.S. Supreme Court Whitney v. California, 274
U.S. 357 (1927) Whitney v. California No. 3 Argued October 6,
1925 Reargued March 18,
1926 Decided May 16, 1927 274
U.S. 357 ERROR TO THE DISTRICT COURT OF
APPEAL, FIRST APPELLATE DISTRICT, DIVISION ONE, OF THE
STATE OF CALIFORNIA Syllabus 1. This Court acquires no jurisdiction to review the judgment of
a state court of last resort on a writ of error unless it
affirmatively appears on the face of the record that a federal
question constituting an appropriate ground for such review was
presented in and expressly or necessarily decided by such state
court. P. 274 U. S.
360 .

															2. Where the fact that a federal question was considered and
passed upon by the state court does not appear by the record, it
may be shown by a certified copy of an order of that court made
after the return of the writ of error and brought here as an
addition to the record. P. 274 U. S. 361 .

															3. In reviewing the judgment of a state court, this Court will
consider only such federal questions as are shown to have been
presented to the state court and expressly or necessarily decided
by it. P. 274 U.S. 362 .

															4. The question whether the petitioner, who joined and assisted
in the organization of a Communist Labor Party contravening the
California Criminal Syndicalism Act, did so with knowledge of its
unlawful character and purpose, was a mere question of the weight
of the evidence, foreclosed by the verdict of guilty approved by
the state court, and not a question of the constitutionality of the
Act, reviewable by this Court. P. 274 U. S.
366 .

															5. The California Criminal Syndicalism Act, which defines
"criminal syndicalism" as

															"any doctrine or precept advocating, teaching Page 274 U. S. 358 or aiding and abetting the commission of crime, sabotage (which
word is hereby defined as meaning willful and malicious physical
damage or injury to physical property), or unlawful acts of force
and violence or unlawful methods of terrorism as a means of
accomplishing a change in industrial ownership or control, or
effecting any political change,"

															and declares guilty of a felony any person who

															"organizes or assists in organizing, or is or knowingly becomes
a member of, any organization, society, group or assemblage of
persons organized or assembled to advocate, teach or aid and abet
criminal syndicalism,"

															is sufficiently clear and explicit to satisfy the requirement of
due process of law. P. 274 U. S.
368 .

															6. The statute does not violate the Equal Protection Clause of
the Fourteenth Amendment in penalizing those who advocate a resort
to violent and unlawful methods as a means of changing industrial
and political conditions while not penalizing those who may
advocate a resort to such methods for maintaining such conditions,
since the distinction is not arbitrary, but within the
discretionary power of the State to direct its legislation against
what it deems an evil without covering the whole field of possible
abuses. P. 274 U. S.
369 .

															7. Such a statute is not open to objection unless the
classification on which it is based is so lacking in any adequate
or reasonable basis as to preclude the assumption that it was made
in the exercise of the legislative judgment and discretion. P. 274 U. S.
369 .

															8. This Act is not class legislation; it affects all alike, no
matter what their business associations or callings, who come
within its terms and do the things prohibited. P. 274 U. S.
370 .

															9. Nor is it repugnant to the Due Process Clause as a restraint
of the rights of free speech, assembly, and association. P. 274 U. S.
371 .

															10. The determination of the legislature that the acts defined
involve such danger to the public peace and security of the State
that they should be penalized in the exercise of the police power
must be given great weight, and every presumption be indulged in
favor of the validity of the statute, which could be declared
unconstitutional only if an attempt to exercise arbitrarily and
unreasonably the authority vested in the State in the public
interest. P. 274 U. S.
371 .

															57 Cal. App. 449; ib., 453, affirmed.

															ERROR to a judgment of the District Court of Appeal of
California, which affirmed a conviction of the petitioner under the
state act against criminal syndicalism. The Supreme Court of
California denied a petition for appeal.

															On the first hearing in this Court, the writ of error was Page 274 U. S. 359 dismissed for want of jurisdiction, but later a petition for
rehearing was granted. 269 U.S. 530, 538.

															MR. JUSTICE SANFORD delivered the opinion of the Court.

															By a criminal information filed in the Superior Court of Alameda
County, California, the plaintiff in error was charged, in five
counts, with violations of the Criminal Syndicalism Act of that
State. Statutes, 1919, c. 188, p. 281. She was tried, convicted on
the first count, and sentenced to imprisonment. The judgment was
affirmed by the District Court of Appeal. 57 Cal. App. 449. Her
petition to have the case heard by the Supreme Court * was denied. Ib., 453. And the case was brought here on a writ of error
which was allowed by the Presiding Justice of the Court of Appeal,
the highest court of the State in which a decision could be had.
Jud.Code, § 237.

															On the first hearing in this Court, the writ of error was
dismissed for want of jurisdiction. 269 U.S. 530. Thereafter, a
petition for rehearing was granted, ib., 538, and the case
was again heard and reargued both as to the jurisdiction and the
merits.

															The pertinent provisions of the Criminal Syndicalism Act
are:

															"Section 1. The term 'criminal syndicalism' as used in this act
is hereby defined as any doctrine or precept advocating, teaching
or aiding and abetting the commission Page 274 U. S. 360 of crime, sabotage (which word is hereby defined as meaning
willful and malicious physical damage or injury to physical
property), or unlawful acts of force and violence or unlawful
methods of terrorism as a means of accomplishing a change in
industrial ownership or control, or effecting any political
change."

															"Sec. 2. Any person who: . . . 4. Organizes or assists in
organizing, or is or knowingly becomes a member of, any
organization, society, group or assemblage of persons organized or
assembled to advocate, teach or aid and abet criminal
syndicalism"

															"Is guilty of a felony and punishable by imprisonment."

															The first count of the information, on which the conviction was
had charged that, on or about November 28, 1919, in Alameda County,
the defendant, in violation of the Criminal Syndicalism Act,

															"did then and there unlawfully, willfully, wrongfully,
deliberately and feloniously organize and assist in organizing, and
was, is, and knowingly became a member of an organization, society,
group and assemblage of persons organized and assembled to
advocate, teach, aid and abet criminal syndicalism."

															It has long been settled that this Court acquires no
jurisdiction to review the judgment of a state court of last resort
on a writ of error unless it affirmatively appears on the face of
the record that a federal question constituting an appropriate
ground for such review was presented in, and expressly or
necessarily decided by, such state court. Crowell v.
Randell , 10 Pet. 368, 35 U. S. 392 ; Railroad Co. v.
Rock , 4 Wall, 177, 71 U. S. 180 ; California Powder Works v. Davis, 151 U.
S. 389 , 151 U. S. 393 ; Cincinnati, etc. Railway v. Slade, 216 U. S.
78 , 216 U. S. 83 ; Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U.
S. 341 , 252 U. S. 343 ; New York v. Kleinert, 268 U. S. 646 , 268 U. S.
650 .

															Here, the record does not show that the defendant raised, or
that the State courts considered or decided, any Page 274 U. S. 361 Federal question whatever, excepting as appears in an order made
and entered by the Court of Appeal after it had decided the case
and the writ of error had issued and been returned to this Court. A
certified copy of that order, brought here as an addition to the
record, shows that it was made and entered pursuant to a
stipulation of the parties, approved by the court, and that it
contains the following statement:

															"The question whether the California Criminal Syndicalism Act .
. . and its application in this case are repugnant to the
provisions of the Fourteenth Amendment to the Constitution of the
United States providing that no state shall deprive any person of
life, liberty, or property without due process of law, and that all
persons shall be accorded the equal protection of the laws, was
considered and passed upon by this Court."

															In Cincinnati Packet Co. v. Bay, 200 U.
S. 179 , 200 U. S. 182 ,
where it appeared that a federal question had been presented in a
petition in error to the State Supreme Court in a case in which the
judgment was affirmed without opinion, it was held that the
certificate of that court to the effect that it had considered and
necessarily decided this question was sufficient to show its
existence. And see Marvin v. Trout, 199 U.
S. 212 , 199 U. S. 217 , et seq.; Consolidated Turnpike v. Norfolk, etc. Railway, 228 U. S. 596 , 228 U. S.
599 .

															So -- while the unusual course here taken to show that federal
questions were raised and decided below is not to be commended --
we shall give effect to the order of the Court of Appeal as would
be done if the statement had been made in the opinion of that court
when delivered. See Gross v. United States Mortgage Co., 108 U. S. 477 , 108 U. S.
484 -486; Philadelphia Fire Association v. New
York, 119 U. S. 110 , 119 U. S. 116 ; Home for Incurables v. City of New York, 187 U.
S. 155 , 187 U. S. 157 ; Land & Water Co. v. San Jose Ranch Co., 189 U.
S. 177 , 189 U. S.
179 -180; Rector v. City Deposit
Bank , Page 274 U. S. 362 200 U. S. 405 , 200 U. S. 412 ; Haire v. Rice, 204 U. S. 291 , 204 U. S. 299 ; Chambers v. Baltimore, etc. Railroad, 207 U.
S. 142 , 207 U. S. 148 ; Atchison, etc. Railway v. Sowers, 213 U. S.
55 , 213 U. S. 62 ; Consolidated Turnpike Co. v. Norfolk, etc. Railway, 228 U. S. 596 , 228 U. S. 599 ; Miedrech v. Lauenstein, 232 U. S. 236 , 232 U. S. 242 ; North Carolina Railroad v. Zachary, 232 U.
S. 248 , 232 U. S. 257 ; Chicago, etc. Railway v. Perry, 259 U.
S. 548 , 259 U. S.
551 .

															And here, since it appears from the statement in the order of
the Court of Appeal that the question whether the Syndicalism Act
and its application in this case was repugnant to the due process
and equal protection clauses of the Fourteenth Amendment was
considered and passed upon by that court -- this being a federal
question constituting an appropriate ground for a review of the
judgment -- we conclude that this Court has acquired jurisdiction
under the writ of error. The order dismissing the writ for want of
jurisdiction will accordingly be set aside.

															We proceed to the determination, upon the merits, of the
constitutional question considered and passed upon by the Court of
Appeal. Of course, our review is to be confined to that question,
since it does not appear, either from the order of the Court of
Appeal or from the record otherwise, that any other federal
question was presented in and either expressly or necessarily
decided by that court. National Bank v.
Commonwealth , 9 Wall. 353, 76 U. S. 363 ; Edwards v.
Elliott , 21 Wall. 532, 88 U. S. 557 ; Dewey v. Des Moines, 173 U. S. 193 , 173 U. S. 200 ; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U.
S. 626 , 175 U. S. 633 ; Capital City Dairy Co. v. Ohio, 183 U.
S. 238 , 183 U. S. 248 ; Haire v. Rice, 204 U. S. 291 , 204 U. S. 301 ; Selover, Bates & Co. v. Walsh, 226 U.
S. 112 , 226 U. S. 126 . Missouri Pacific Railway v. Coal Co., 256 U.
S. 134 , 256 U. S. 135 . It
is not enough that there may be somewhere hidden in the record a
question which, if it had been raised, would have been of a federal
nature. Dewey v. Des Moines, supra, 173 U. S. 199 ; Keokuk & Hamilton Bridge Co. v. Illinois, supra, 175 U. S. 634 .
And this necessarily excludes from our consideration Page 274 U. S. 363 a question sought to be raised for the first time by the
assignments of error here -- not presented in or passed upon by the
Court of Appeal -- whether apart from the constitutionality of the
Syndicalism Act, the judgment of the Superior Court, by reason of
the rulings of that court on questions of pleading, evidence and
the like, operated as a denial to the defendant of due process of
law. See Oxley Stave Co. v. Butler County, 166 U.
S. 648 , 166 U. S. 660 ; Capital City Dairy Co. v. Ohio, supra, 183 U. S. 248 ; Manhattan Life Ins. Co. v. Cohen, 234 U.
S. 123 , 234 U. S. 134 ; Bass, etc. Ltd. v. Tax Commission, 266 U.
S. 271 , 266 U. S.
283 .

															The following facts, among many others, were established on the
trial by undisputed evidence: the defendant, a resident of Oakland,
in Alameda County, California, had been a member of the Local
Oakland branch of the Socialist Party. This Local sent delegates to
the national convention of the Socialist Party held in Chicago in
1919, which resulted in a split between the "radical" group and the
old-wing Socialists. The "radicals" -- to whom the Oakland
delegates adhered -- being ejected, went to another hall, and
formed the Communist Labor Party of America. Its Constitution
provided for the membership of persons subscribing to the
principles of the Party and pledging themselves to be guided by its
Platform, and for the formation of state organizations conforming
to its Platform as the supreme declaration of the Party. In its
"Platform and Program," the Party declared that it was in full
harmony with "the revolutionary working class parties of all
countries," and adhered to the principles of Communism laid down in
the Manifesto of the Third International at Moscow, and that its
purpose was "to create a unified revolutionary working class
movement in America," organizing the workers as a class in a
revolutionary class struggle to conquer the capitalist state for
the overthrow of capitalist rule, the conquest of political power
and the establishment Page 274 U. S. 364 of a working class government, the Dictatorship of the
Proletariat, in place of the state machinery of the capitalists,
which should make and enforce the laws, reorganize society on the
basis of Communism, and bring about the Communist Commonwealth --
advocated, as the most important means of capturing state power,
the action of the masses, proceeding from the shops and factories,
the use of the political machinery of the capitalist state being
only secondary; the organization of the workers into "revolutionary
industrial unions"; propaganda pointing out their revolutionary
nature and possibilities, and great industrial battles showing the
value of the strike as a political weapon -- commended the
propaganda and example of the Industrial Workers of the World and
their struggles and sacrifices in the class war -- pledged support
and cooperation to "the revolutionary industrial proletariat of
America" in their struggles against the capitalist class -- cited
the Seattle and Winnipeg strikes and the numerous strikes all over
the country "proceeding without the authority of the old
reactionary Trade Union officials," as manifestations of the new
tendency -- and recommended that strikes of national importance be
supported and given a political character, and that propagandists
and organizers be mobilized "who cannot only teach, but actually
help to put in practice the principles of revolutionary industrial
unionism and Communism."

															Shortly thereafter, the Local Oakland withdrew from the
Socialist Party and sent accredited delegates, including the
defendant, to a convention held in Oakland in November, 1919, for
the purpose of organizing a California branch of the Communist
Labor Party. The defendant, after taking out a temporary membership
in the Communist Labor Party, attended this convention as a
delegate and took an active part in its proceedings. She was
elected a member of the Credentials Committee, and, as its
chairman, made a report to the convention upon Page 274 U. S. 365 which the delegates were seated. She was also appointed a member
of the Resolutions Committee, and, as such, signed the following
resolution in reference to political action, among others proposed
by the Committee:

															"The C.L.P. of California fully recognizes the value of
political action as a means of spreading communist propaganda; it
insists that, in proportion to the development of the economic
strength of the working class, it, the working class, must also
develop its political power. The C.L.P. of California proclaims and
insists that the capture of political power, locally or nationally
by the revolutionary working class, can be of tremendous assistance
to the workers in their struggle of emancipation. Therefore, we
again urge the workers who are possessed of the right of franchise
to cast their votes for the party which represents their immediate
and final interest -- the C.L.P. -- at all elections, being fully
convinced of the utter futility of obtaining any real measure of
justice or freedom under officials elected by parties owned and
controlled by the capitalist class."

															The minutes show that this resolution, with the others proposed
by the committee, was read by its chairman to the convention before
the Committee on the Constitution had submitted its report.
According to the recollection of the defendant, however, she
herself read this resolution. Thereafter, before the report of the
Committee on the Constitution had been acted upon, the defendant
was elected an alternate member of the State Executive Committee.
The Constitution, as finally read, was then adopted. This provided
that the organization should be named the Communist Labor Party of
California; that it should be "affiliated with" the Communist Labor
Party of America, and subscribe to its Program, Platform and
Constitution, and, "through this affiliation," be "joined with the
Communist International of Moscow;" and that the qualifications for
membership should be those prescribed in the Page 274 U. S. 366 National Constitution. The proposed resolutions were later
taken, up and all adopted except that on political action, which
caused a lengthy debate, resulting in its defeat and the acceptance
of the National Program in its place. After this action, the
defendant, without, so far as appears, making any protest, remained
in the convention until it adjourned. She later attended as an
alternate member one or two meetings of the State Executive
Committee in San Jose and San Francisco, and stated, on the trial,
that she was then a member of the Communist Labor Party. She also
testified that it was not her intention that the Communist Labor
Party of California should be an instrument of terrorism or
violence, and that it was not her purpose or that of the Convention
to violate any known law.

															In the light of this preliminary statement, we now take up,
insofar as they require specific consideration, the various grounds
upon which it is here contended that the Syndicalism Act and its
application in this case is repugnant to the due process and equal
protection clauses of the Fourteenth Amendment.

															1. While it is not denied that the evidence warranted the jury
in finding that the defendant became a member of and assisted in
organizing the Communist Labor Party of California, and that this
was organized to advocate, teach, aid or abet criminal syndicalism
as defined by the Act, it is urged that the Act, as here construed
and applied, deprived the defendant of her liberty without due
process of law in that it has made her action in attending the
Oakland convention unlawful by reason of "a subsequent event
brought about against her will by the agency of others," with no
showing of a specific intent on her part to join in the forbidden
purpose of the association, and merely because, by reason of a lack
of "prophetic" understanding, she failed to foresee the quality
that others would give to the convention. The argument is, Page 274 U. S. 367 in effect, that the character of the state organization could
not be forecast when she attended the convention; that she had no
purpose of helping to create an instrument of terrorism and
violence; that she

															"took part in formulating and presenting to the convention a
resolution which, if adopted, would have committed the new
organization to a legitimate policy of political reform by the use
of the ballot;"

															that it was not until after the majority of the convention
turned out to be "contrary-minded, and other less temperate
policies prevailed," that the convention could have taken on the
character of criminal syndicalism, and that, as this was done over
her protest, her mere presence in the convention, however violent
the opinions expressed therein, could not thereby become a crime.
This contention, while advanced in the form of a constitutional
objection to the Act, is in effect nothing more than an effort to
review the weight of the evidence for the purpose of showing that
the defendant did not join and assist in organizing the Communist
Labor Party of California with a knowledge of its unlawful
character and purpose. This question, which is foreclosed by the
verdict of the jury -- sustained by the Court of Appeal over the
specific objection that it was not supported by the evidence -- is
one of fact merely, which is not open to review in this Court,
involving, as it does, no constitutional question whatever. And we
may add that the argument entirely disregards the facts: that the
defendant had previously taken out a membership card in the
National Party, that the resolution which she supported did not
advocate the use of the ballot to the exclusion of violent and
unlawful means of bringing about the desired changes in industrial
and political conditions, and that, after the constitution of the
California Party had been adopted, and this resolution had been
voted down and the National Program accepted, she not only remained
in the convention, without Page 274 U. S. 368 protest, until its close, but subsequently manifested her
acquiescence by attending as an alternate member of the State
Executive Committee and continuing as member of the Communist Labor
Party.

															2. It is clear that the Syndicalism Act is not repugnant to the
due process clause by reason of vagueness and uncertainty of
definition. It has no substantial resemblance to the statutes held
void for uncertainty under the Fourteenth and Fifth Amendments in International Harvester Co. v. Kentucky, 234 U.
S. 216 , 234 U. S. 221 ,
and United States v. Cohen Grocery, 255 U. S.
81 , 255 U. S. 89 ,
because not fixing an ascertainable standard of guilt. The language
of § 2, subd. 4, of the Act, under which the plaintiff in error was
convicted, is clear, the definition of "criminal syndicalism
"specific.

															The Act, plainly, meets the essential requirement of due process
that a penal statute be "sufficiently explicit to inform those who
are subject to it, what conduct on their part will render them
liable to its penalties," and be couched in terms that are not "so
vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application." Connally v. General
Construction Co., 269 U. S. 385 , 269 U. S. 391 . And see United States v. Brewer, 139 U.
S. 278 , 139 U. S. 288 ; Chicago, etc., Railway v. Dey, (C.C.) 35 Fed. 866, 876; Tozer v. United States, (C.C.) 52 Fed. 917, 919. In Omaechevarria v. Idaho, 246 U. S. 343 , 246 U. S. 348 ,
in which it was held that a criminal statute prohibiting the
grazing of sheep on any "range" previously occupied by cattle "in
the usual and customary use" thereof, was not void for
indefiniteness because it failed to provide for the ascertainment
of the boundaries of a "range" or to determine the length of time
necessary to constitute a prior occupation a "usual" one, this
Court said:

															"Men familiar with range conditions and desirous of observing
the law will have little difficulty Page 274 U. S. 369 in determining what is prohibited by it. Similar expressions are
common in the criminal statutes of other States. This statute
presents no greater uncertainty or difficulty, in application to
necessarily varying facts, than has been repeatedly sanctioned by
this court. Nash v. United States, 229 U. S.
373 , 229 U. S. 377 ; Miller v.
Strahl, 239 U. S. 426 , 239 U. S.
434 ."

															So, as applied here, the Syndicalism Act required of the
defendant no "prophetic" understanding of its meaning.

															And similar Criminal Syndicalism statutes of other States, some
less specific in their definitions, have been held by the State
courts not to be void for indefiniteness. State v.
Hennessy, 114 Wash. 351, 364; State v. Laundy, 103
Ore. 443, 460; People v. Ruthenberg, 229 Mich. 31, 325. And see Fox v. Washington, 236 U.
S. 273 , 236 U. S. 277 ; People v. Steelik, 187 Cal. 361, 372; People v.
Lloyd, 304 Ill. 23, 34.

															3. Neither is the Syndicalism Act repugnant to the equal
protection clause on the ground that, as its penalties are confined
to those who advocate a resort to violent and unlawful methods as a
means of changing industrial and political conditions, it
arbitrarily discriminates between such persons and those who may
advocate a resort to these methods as a means of maintaining such
conditions.

															It is, settled by repeated decisions of this Court that the
equal protection clause does not take from a State the power to
classify in the adoption of police laws, but admits of the exercise
of a wide scope of discretion, and avoids what is done only when it
is without any reasonable basis, and therefore is purely arbitrary,
and that one who assails the classification must carry the burden
of showing that it does not rest upon any reasonable basic, but is
essentially arbitrary. Lindsley v. National Cabonic Gas
Co., 220 U. S. 61 , 220 U. S. 78 ,
and case cited. Page 274 U. S. 370 A statute does not violate the equal protection clause merely
because it is not all-embracing; Zucht v. King, 260 U. S. 174 , 260 U. S. 177 ; James-Dickinson Farm Mortgage Co. v. Harry, 273 U.
S. 119 . A State may properly direct its legislation
against what it deems an existing evil without covering the whole
field of possible abuses. Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 ; Farmers Bank v. Federal Reserve Bank, 262 U.
S. 649 , 262 U. S. 661 ; James-Dickinson Mortgage Co. v. Harry, supra. The statute
must be presumed to be aimed at an evil where experience shows it
to be most felt, and to be deemed by the legislature coextensive
with the practical need, and is not to be overthrown merely because
other instances may be suggested to which also it might have been
applied, that being a matter for the legislature to determine
unless the case is very clear. Keokee Coke Co. v Taylor, 234 U. S. 224 , 234 U. S. 227 .
And it is not open to objection unless the classification is so
lacking in any adequate or reasonable basis as to preclude the
assumption that it was made in the exercise of the legislative
judgment and discretion. Stebbins v. Riley, 268 U.
S. 137 , 268 U. S. 143 ; Graves v. Minnesota, 272 U. S. 425 ; Swiss Oil Corporation v. Shanks, 273 U.
S. 407 .

															The Syndicalism Act is not class legislation; it affects all
alike, no matter what their business associations or callings, who
come within its terms and do the things prohibited. See State
v. Hennessy, supra, 361; State v. Laundy, supra, 460.
And there is no substantial basis for the contention that the
legislature has arbitrarily or unreasonably limited its application
to those advocating the use of violent and unlawful methods to
effect changes in industrial and political conditions, there being
nothing indicating any ground to apprehend that those desiring to
maintain existing industrial and political conditions did or would
advocate such methods. That there is a widespread conviction of the
necessity for legislation of Page 274 U. S. 371 this character is indicated by the adoption of similar statutes
in several other States.

															4. Nor is the Syndicalism Act, as applied in this case,
repugnant to the due process clause as a restraint of the rights of
free speech, assembly, and association.

															That the freedom of speech which is secured by the Constitution
does not confer an absolute right to speak, without responsibility,
whatever one may choose, or an unrestricted and unbridled license
giving immunity for every possible use of language and preventing
the punishment of those who abuse this freedom, and that a State in
the exercise of its police power may punish those who abuse this
freedom by utterances inimical to the public welfare, tending to
incite to crime, disturb the public peace, or endanger the
foundations of organized government and threaten its overthrow by
unlawful means, is not open to question. Gitlow v. New
York, 268 U. S. 652 , 268 U. S.
666 -668, and cases cited.

															By enacting the provisions of the Syndicalism Act, the State has
declared, through its legislative body, that to knowingly be or
become a member of or assist in organizing an association to
advocate, teach or aid and abet the commission of crimes or
unlawful acts of force, violence or terrorism as a means of
accomplishing industrial or political changes involves such danger
to the public peace and the security of the State, that these acts
should be penalized in the exercise of its police power. That
determination must be given great weight. Every presumption is to
be indulged in favor of the validity of the statute, Mugler v.
Kansas, 123 U. S. 623 , 123 U. S. 661 ,
and it may not be declared unconstitutional unless it is an
arbitrary or unreasonable attempt to exercise the authority vested
in the State in the public interest. Great Northern Railway v.
Clara City, 246 U. S. 434 , 246 U. S. 439 .

															The essence of the offense denounced by the Act is the combining
with others in an association for the accomplishment Page 274 U. S. 372 of the desired ends through the advocacy and use of criminal and
unlawful methods. It partakes of the nature of a criminal
conspiracy. See People v. Steelik, supra, 376. That such
united and joint action involves even greater danger to the public
peace and security than the isolated utterances and acts of
individuals is clear. We cannot hold that, as here applied, the Act
is an unreasonable or arbitrary exercise of the police power of the
State, unwarrantably infringing any right of free speech, assembly
or association, or that those persons are protected from punishment
by the due process clause who abuse such rights by joining and
furthering an organization thus menacing the peace and welfare of
the State.

															We find no repugnancy in the Syndicalism Act as applied in this
case to either the due process or equal protection clauses of the
Fourteenth Amendment on any of the grounds upon which its validity
has been here challenged.

															The order dismissing the writ of error will be vacated and set
aside, and the judgment of the Court of Appeal Affirmed.

															* 1 Statutes, 1919, c. 58, p. 88.

															MR. JUSTICE BRANDEIS, concurring.

															Miss Whitney was convicted of the felony of assisting in
organizing, in the year 1919, the Communist Labor Party of
California, of being a member of it, and of assembling with it.
These acts are held to constitute a crime because the party was
formed to teach criminal syndicalism. The statute which made these
acts a crime restricted the right of free speech and of assembly
theretofore existing. The claim is that the statute, as applied,
denied to Miss Whitney the liberty guaranteed by the Fourteenth
Amendment.

															The felony which the statute created is a crime very unlike the
old felony of conspiracy or the old misdemeanor Page 274 U. S. 373 of unlawful assembly. The mere act of assisting in forming a
society for teaching syndicalism, of becoming a member of it, or of
assembling with others for that purpose, is given the dynamic
quality of crime. There is guilt although the society may not
contemplate immediate promulgation of the doctrine. Thus, the
accused is to be punished not for contempt, incitement, or
conspiracy, but for a step in preparation, which, if it threatens
the public order at all, does so only remotely. The novelty in the
prohibition introduced is that the statute aims not at the practice
of criminal syndicalism, nor even directly at the preaching of it,
but at association with those who propose to preach it.

															Despite arguments to the contrary which had seemed to me
persuasive, it is settled that the due process clause of the
Fourteenth Amendment applies to matters of substantive law as well
as to matters of procedure. Thus, all fundamental rights comprised
within the term liberty are protected by the Federal Constitution
from invasion by the States. The right of free speech, the right to
teach, and the right of assembly are, of course, fundamental
rights. See Meyer v. Nebraska, 262 U.
S. 390 ; Pierce v. Society of Sisters, 268 U. S. 510 ; Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 ; Farrington v. Tokushige, 273 U. S. 284 .
These may not be denied or abridged. But, although the rights of
free speech and assembly are fundamental, they are not, in their
nature, absolute. Their exercise is subject to restriction if the
particular restriction proposed is required in order to protect the
State from destruction or from serious injury, political, economic,
or moral. That the necessity which is essential to a valid
restriction does not exist unless speech would produce, or is
intended to produce, a clear and imminent danger of some
substantive evil which the State constitutionally may seek to
prevent has been settled. See Schenck v. United States, 249 U. S. 47 , 249 U. S.
52 . Page 274 U. S. 374 It is said to be the function of the legislature to determine
whether, at a particular time and under the particular
circumstances, the formation of, or assembly with, a society
organized to advocate criminal syndicalism constitutes a clear and
present danger of substantive evil, and that, by enacting the law
here in question, the legislature of California determined that
question in the affirmative. Compare Gitlow v. New York, 268 U. S. 652 , 268 U. S.
668 -671. The legislature must obviously decide, in the
first instance, whether a danger exists which calls for a
particular protective measure. But where a statute is valid only in
case certain conditions exist, the enactment of the statute cannot
alone establish the facts which are essential to its validity.
Prohibitory legislation has repeatedly been held invalid, because
unnecessary, where the denial of liberty involved was that of
engaging in a particular business. [ Footnote 1 ] The power of the courts to strike down an
offending law is no less when the interests involved are not
property rights, but the fundamental personal rights of free speech
and assembly.

															This Court has not yet fixed the standard by which to determine
when a danger shall be deemed clear; how remote the danger may be
and yet be deemed present, and what degree of evil shall be deemed
sufficiently substantial to justify resort to abridgement of free
speech and assembly as the means of protection. To reach sound
conclusions on these matters, we must bear in mind why a State is,
ordinarily, denied the power to prohibit dissemination of social,
economic and political doctrine which a vast majority of its
citizens believes to be false and fraught with evil
consequence. Page 274 U. S. 375 Those who won our independence believed that the final end of
the State was to make men free to develop their faculties, and
that, in its government, the deliberative forces should prevail
over the arbitrary. They valued liberty both as an end, and as a
means. They believed liberty to be the secret of happiness, and
courage to be the secret of liberty. They believed that freedom to
think as you will and to speak as you think are means indispensable
to the discovery and spread of political truth; that, without free
speech and assembly, discussion would be futile; that, with them,
discussion affords ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest menace to
freedom is an inert people; that public discussion is a political
duty, and that this should be a fundamental principle of the
American government. [ Footnote
2 ] They recognized the risks to which all human institutions
are subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is hazardous
to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies, and that
the fitting remedy for evil counsels is good ones. Believing in the
power of reason as applied through public discussion, they eschewed
silence Page 274 U. S. 376 coerced by law -- the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they
amended the Constitution so that free speech and assembly should be
guaranteed.

															Fear of serious injury cannot alone justify suppression of free
speech and assembly. Men feared witches and burnt women. It is the
function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech, there must be
reasonable ground to fear that serious evil will result if free
speech is practiced. There must be reasonable ground to believe
that the danger apprehended is imminent. There must be reasonable
ground to believe that the evil to be prevented is a serious one.
Every denunciation of existing law tends in some measure to
increase the probability that there will be violation of it.
[ Footnote 3 ] Condonation of a
breach enhances the probability. Expressions of approval add to the
probability. Propagation of the criminal state of mind by teaching
syndicalism increases it. Advocacy of law-breaking heightens it
still further. But even advocacy of violation, however
reprehensible morally, is not a justification for denying free
speech where the advocacy falls short of incitement and there is
nothing to indicate that the advocacy would be immediately acted
on. The wide difference between advocacy and incitement, between
preparation and attempt, between assembling and conspiracy, must be
borne in mind. In order to support a finding of clear and present
danger, it must be shown either that immediate serious violence was
to be expected or was advocated, or that the past conduct furnished
reason to believe that such advocacy was then contemplated. Page 274 U. S. 377 Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the
cost of liberty. To courageous, self-reliant men, with confidence
in the power of free and fearless reasoning applied through the
processes of popular government, no danger flowing from speech can
be deemed clear and present unless the incidence of the evil
apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech,
not enforced silence. Only an emergency can justify repression.
Such must be the rule if authority is to be reconciled with
freedom. [ Footnote 4 ] Such, in
my opinion, is the command of the Constitution. It is therefore
always open to Americans to challenge a law abridging free speech
and assembly by showing that there was no emergency justifying
it.

															Moreover, even imminent danger cannot justify resort to
prohibition of these functions essential to effective democracy
unless the evil apprehended is relatively serious. Prohibition of
free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm
to society. A police measure may be unconstitutional merely because
the remedy, although effective as means of protection, is unduly
harsh or oppressive. Thus, a State might, in the exercise of its
police power, make any trespass upon the Page 274 U. S. 378 land of another a crime, regardless of the results or of the
intent or purpose of the trespasser. It might, also, punish an
attempt, a conspiracy, or an incitement to commit the trespass. But
it is hardly conceivable that this Court would hold constitutional
a statute which punished as a felony the mere voluntary assembly
with a society formed to teach that pedestrians had the moral right
to cross unenclosed, unposted, wastelands and to advocate their
doing so, even if there was imminent danger that advocacy would
lead to a trespass. The fact that speech is likely to result in
some violence or in destruction of property is not enough to
justify its suppression. There must be the probability of serious
injury to the State. Among free men, the deterrents ordinarily to
be applied to prevent crime are education and punishment for
violations of the law, not abridgment of the rights of free speech
and assembly.

															The California Syndicalism Act recites in § 4:

															"Inasmuch as this act concerns and is necessary to the immediate
preservation of the public peace and safety, for the reason that,
at the present time, large numbers of persons are going from place
to place in this state advocating, teaching and practicing criminal
syndicalism, this act shall take effect upon approval by the
Governor."

															This legislative declaration satisfies the requirement of the
constitution of the State concerning emergency legislation. In
re McDermott, 180 Cal. 783. But it does not preclude enquiry
into the question whether, at the time and under the circumstances,
the conditions existed which are essential to validity under the
Federal Constitution. As a statute, even if not void on its face,
may be challenged because invalid as applied, Dahnke-Walker
Milling Co. v. Bondrant, 257 U. S. 282 , the
result of such an enquiry may depend upon the specific facts of the
particular case. Whenever the fundamental rights of free speech and
assembly are alleged to have been invaded, Page 274 U. S. 379 it must remain open to a defendant to present the issue whether
there actually did exist at the time a clear danger; whether the
danger, if any, was imminent, and whether the evil apprehended was
one so substantial as to justify the stringent restriction
interposed by the legislature. The legislative declaration, like
the fact that the statute was passed and was sustained by the
highest court of the State, creates merely a rebuttable presumption
that these conditions have been satisfied.

															Whether in 1919, when Miss Whitney did the things complained of,
there was in California such clear and present danger of serious
evil might have been made the important issue in the case. She
might have required that the issue be determined either by the
court or the jury. She claimed below that the statute, as applied
to her, violated the Federal Constitution; but she did not claim
that it was void because there was no clear and present danger of
serious evil, nor did she request that the existence of these
conditions of a valid measure thus restricting the rights of free
speech and assembly be passed upon by the court or a jury. On the
other hand, there was evidence on which the court or jury might
have found that such danger existed. I am unable to assent to the
suggestion in the opinion of the Court that assembling with a
political party, formed to advocate the desirability of a
proletarian revolution by mass action at some date necessarily far
in the future, is not a right within the protection of the
Fourteenth Amendment. In the present case, however, there was other
testimony which tended to establish the existence of a conspiracy,
on the part of members of the International Workers of the World,
to commit present serious crimes, and likewise to show that such a
conspiracy would be furthered by the activity of the society of
which Miss Whitney was a member. Under these circumstances, the
judgment of the state court cannot be disturbed. Page 274 U. S. 380 Our power of review in this case is limited not only to the
question whether a right guaranteed by the Federal Constitution was
denied, Murdock v. City of
Memphis , 20 Wall. 590; Haire v. Rice, 204 U. S. 291 , 204 U. S. 301 ;
but to the particular claims duly made below, and denied. Seaboard Air Line Ry. v. Duvall, 225 U.
S. 477 , 225 U. S.
485 -488. We lack here the power occasionally exercised
on review of judgments of lower federal courts to correct in
criminal cases vital errors, although the objection was not taken
in the trial court. Wiborg v. United States, 163 U.
S. 632 , 163 U. S.
658 -660; Clyatt v. United States, 197 U.
S. 207 , 197 U. S.
221 -222. This is a writ of error to a state court.
Because we may not enquire into the errors now alleged, I concur in
affirming the judgment of the state court.

															MR. JUSTICE HOLMES joins in this opinion.

															[ Footnote 1 ] Compare Frost v. R.R. Comm. of California, 271 U.
S. 583 ; Weaver v. Palmer Bros. Co., 270 U. S. 402 ; Jay Burns Baking Co. v. Bryan, 264 U.
S. 504 ; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 ; Adams v. Tanner, 244 U. S. 590 .

															[ Footnote 2 ] Compare Thomas Jefferson:

															"We have nothing to fear from the demoralizing reasonings of
some, if others are left free to demonstrate their errors and
especially when the law stands ready to punish the first criminal
act produced by the false reasonings; these are safer corrections
than the conscience of the judge."

															Quoted by Charles A. Beard, The Nation, July 7, 1926, vol. 123,
p. 8. Also in first Inaugural Address:

															"If there be any among us who would wish to dissolve this union
or change its republican form, let them stand undisturbed as
monuments of the safety with which error of opinion may be
tolerated where reason is left free to combat it."

															[ Footnote 3 ] Compare Judge Learned Hand in Masses Publishing Co.
v. Patten, 244 Fed. 535, 540; Judge Amidon in United
States v. Fontana, Bull. Dept. of Justice No. 148, pp. 4-5;
Chafee, "Freedom of Speech," pp. 456, 174.

															[ Footnote 4 ] Compare Z. Chafee, Jr., "Freedom of Speech", pp. 24-39,
207-221, 228, 262-265; H. J. Laski, "Grammar of Politics", pp. 120,
121; Lord Justice Scrutton in Rex v. Secretary of Home Affairs,
Ex parte O'Brien, [1923] 2 K.B. 361, 382:

															"You really believe in freedom of speech if you are willing to
allow it to men whose opinions seem to you wrong and even
dangerous; . . ." Compare Warren, "The New Liberty Under the Fourteenth
Amendment," 39 Harvard Law Review, 431, 461.