Beauharnais v. Illinois/Dissent Reed
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  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 color to contempt, derision, or obloquy, which more fully      appears in Exhibit A, which is attached hereto and made a      part thereof.' 

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 too vague and by virtue of that fact was so broad that it abridged free speech in violation of the Fourteenth Amendment.  The petition for certiorari brings these questions here.

In carrying out its obligation to conform state legal administration to the 'fundamental principles of liberty and justice' imposed on the states by the Fourteenth Amendment,  this Court has steadily affirmed that the general principle against abridgment of free speech, protected by the First Amendment, is included in the command of the Fourteenth.  So important to a constitutional democracy is the right of discussion that any challenge to legislative abridgment of those privileges of a free people calls for careful judicial appraisal.  It is when speech becomes an incitement to crime that the right freely to exhort may be abridged. American Communications Ass'n., C.I.O. v. Douds, 339 U.S. 382, 395, 70 S.Ct. 674, 682, 94 L.Ed. 925; Herndon v. Lowry, 301 U.S. 242, 255, 57 S.Ct. 732, 738, 81 L.Ed. 1066.

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. People of State of New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840. 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. 

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. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, Stromberg had been convicted in the California courts for violating a statute of that state forbidding the display of a red flag.  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 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.'  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., 283 U.S. at page 369, 51 S.Ct. at page 536.

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 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  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.  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 page 517, 97 N.E.2d at page 346. The quoted language does not limit the statutory words 'virtue,' 'derision' or 'obloquy.' 

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. 

These words-'virtue,' 'derision,' and 'obloquy'-have neither general nor special meanings well enough known to apprise those within their reach as to limitations on speech. Compare Connally v. General Construction Co., 269 U.S. 385, 391-392, 46 S.Ct. 126, 127-128, 70 L.Ed. 322. Philosophers and poets, thinkers of high and low degree from every age and race have sought to expound the meaning of virtue, but each teaches his own conception of the moral excellence that satisfies standards of good conduct. Are the tests of the Puritan or the Cavalier to be applied, those of the city or the farm, the Christian or non-Christian, the old or the young? Does the Bill of Rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not. A general and equal enforcement of this law would restrain the mildest expressions of opinion in all those areas where 'virtue' may be thought to have a role. Since this judgment may rest upon these vague and undefined words, which permit within their scope the punishment of incidents secured by the guarantee of free speech, the conviction should be reversed. 

Notes

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