Carr v. State | Cases | Westlaw

“The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and through political mass strikes and revolutionary mass action overthrow and destroy organized parliamentary government. It concludes with a call to action in these words: ‘The proletariat revolution and the Communist reconstruction of society—the struggle for these—is now indispensable. *** The Communist International calls the proletariat of the world to the final struggle!’ This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement.

“The means advocated for bringing about the destruction of organized parliamentary government, namely, mass industrial revolts usurping the functions of municipal government, political mass strikes directed against the parliamentary State, and revolutionary mass action for its final destruction, necessarily imply the use of force and violence, and in their essential nature are inherently unlawful in a constitutional government of law and order. That the jury were warranted in finding that the Manifesto advocated *829 not merely the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to that end, is clear. For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and ‘liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U. S. 530, 543, 42 S. Ct. 516, 66 L. Ed. 1044, 27 A. L. R. 27, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 2 Story on the Constitution (5th Ed.) § 1580, p. 634; Robertson v. Baldwin, 165 U. S. 275, 281, 17 S. Ct. 326, 41 L. Ed. 715; Patterson v. Colorado, 205 U. S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689; Fox v. Washington, 236 U. S. 273, 276, 35 S. Ct. 383, 59 L. Ed. 573; Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States, 249 U. S. 204, 206, 39 S. Ct. 249, 63 L. Ed. 561; Debs v. United States, 249 U. S. 211, 213, 39 S. Ct. 252, 63 L. Ed. 566; Schaefer v. United States, 251 U. S. 466, 474, 40 S. Ct. 259, 64 L. Ed. 360; Gilbert v. Minnesota, 254 U. S. 325, 332, 41 S. Ct. 125, 65 L. Ed. 287; Warren v. United States, 106 C. C. A. 156, 183 F. 718, 721, 33 L. R. A. (N. S.) 800. Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic. 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 corrupt public morals, incite to crime, or disturb the public peace, is not open to question. Robertson v. Baldwin, supra [165 U. S.] page 281 (17 S. Ct. 326) [41 L. Ed. 715]; Patterson v. Colorado, supra [205 U. S.] page 462 (27 S. Ct. 556) [51 L. Ed. 879, 10 Ann. Gas. 689]; Fox v. Washington, supra [236 U. S.] page 277 (35 S. Ct. 383) [59 L. Ed. 573]; Gilbert v. Minnesota, supra [254 U. S.] page 339 (41 S. Ct. 125) [65 L. Ed. 287]; People v. Most, 171 N. Y. 423, 431, 64 N. Ed. 175, 58 L. R. A. 509; State v. Holm, 139 Minn. 267, 275, 166 N. W. 181, L. R. A. 1918C, 304; State v. Hennessy, 114 Wash. 351, 359, 195 P. 211; State v. Boyd, 86 N. J. Law, 75, 79, 91 A. 586; State v. McKee, 73 Conn. 18, 27, 46 A. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124. Thus it was held by this Court in the Fox Case, that a State may punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case, that a State may punish utterances teaching or advocating that its citizens should not assist the United States in prosecuting or carrying on war with its public enemies. And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press, said Story, supra, does not protect disturbances to the public peace or the attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. State v. Holm, supra [139 Minn.] page 275 (166 N. W. 181) [L. R. A. 1918C, 304]. It does not protect publications prompting the overthrow of government by force; the punishment of those who publish articles which tend to destroy organized society being essential to the security of freedom and the stability of the state. People v. Most, supra [171 N. Y.] pages 431, 432 (64 N. E. 175) [58 L. R. A. 509]. And a State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. People v. Lloyd, 304 Ill. 23, 34, 136 N. E. 505. See, also, State v. Tachin, 92 N. J. Law, 269, 274, 106 A. 145, and People v. Steelik, 187 Cal. 361, 375, 203 P. 78. In short this freedom does not deprive a State of the primary and essential right of self preservation; which, so long as human governments endure, they cannot be denied. Turner v. Williams, 194 U. S. 279, 294, 24 S. Ct. 719, 48 L. Ed. 979. In Toledo Newspaper Co. v. United States, 247 U. S. 402, 419, 38 S. Ct. 560, 564 (62 L. Ed. 1186), it was said: ‘The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions.’ By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may 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. *830 Mugler v. Kansas, 123 U. S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205. And the case is to be considered ‘in the light of the principle that the State is primarily the judge of regulations required in the interest of public safety and welfare’; and that its police ‘statutes may only be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise authority vested in the State in the public interest.’ Great Northern Ry. v. [Minnesota ex rel. Village of] Clara City, 246 U. S. 434, 439, 38 S. Ct. 346, 347 (62 L. Ed. 817). That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. In People v. Lloyd, supra [304 Ill.] page 35 (136 N. E. 505, 512), it was aptly said: ‘Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law.”’

We cite, on the same question, Whitney v. People of State of California, 274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 1095, and citations.

This construction is made more certain by the use of the further expression, “defend the Soviet Union.” The authorities of the Soviet Union, as is known to all men, claim that it is a “proletarian dictatorship”; therefore the literature alleged to have been circulated advocates the overthrow of the present government of the United States and the establishment of a “proletarian dictatorship,” such as now exists in the Soviet Union in Russia.

*831 Webster's New International Dictionary defines the word “proletarian” to mean: “One of the wage earning class; especially a laborer for day wages not possessed of capital.” Reference to smashing the capitalistic government and the establishment of a proletarian government obviously means the establishment of a government restricted to one class of citizenship, to wit, laborers not possessed of capital; that is, a government in which all who possess capital are excluded.

It is insisted in the brief by plaintiff in error that there is nothing in the literature to indicate advocacy of violence, that upon the contrary the literature quoted merely indicates the purpose to use peaceful means. But the quoted literature further includes also the words “against bosses' wars,” “smash the National Guard, the C. M. T. C., and the R. O. T. C.” By way of argument, it is said that in political speeches campaign orators are frequently heard to use the expression “smash the political machine,” and therefore the expression in the literature quoted, “smash the National Guard, the C. M. T. C., and the R. O. T. C.,” will be considered as having a similar meaning.

A sufficient reply to that contention is that a “political machine” is not a part of an organized government. It is the creation of a faction and generally believed to be inimical to the best interests of the government itself. Against such, General Washington in his “Farewell Address” inveighed with great force and eloquence. Campaign speakers who advocate “smashing the political machine” could not be included as falling within the class of those who advocate the overthrow of the present government of the United States and the establishment of a proletarian dictatorship by defending the Soviet Union of Russia, the smashing of the National Guard, the C. M. T. C., and the R. O. T. C.; the latter two organizations being inaugurated and supported by the government of the United States for the preparation and education of its army of defense. It would be surprising indeed if a speaker in a political campaign for the election of officers of the present government should advocate the smashing alike of the government and the political machine. A combination of persons working together in a campaign with the intent and purpose to overthrow the present government of the United States or the states of the federal Union, by the establishment of a proletarian dictatorship through resistance to the federal government and by the smashing of the National Guard, cannot be considered as an inoffensive peaceful aggregation of citizens merely advising that course with the anticipation that the present government will quietly lay down its authority and embrace the principles and form of the proletarian dictatorship of Soviet Russia. Upon the contrary, such an association amounts to more than a “political machine,” and it is alleged that in this case the intent is to effectuate its own purpose by violence.

3. The third ground of demurrer attacks the indictment on the ground that the indictment charges that certain described literature was circulated, such as “the Daily Worker,” “The Liberator,” “Out of a Job, by Earl Browder,” “Read as You Fight,” “Why Every Worker Should Join the Communist Party,” “On the Road to Bolshevization,” “The Trade Union in Socialist Construction in the U. S. S. R., by Katherina Evdeyeva,” “The Communist Manifesto, by Carl Marx and Frederich Engles,” “Women in the Soviet Union,” “The Program of the Communist International Labor and Southern Cotton Mills, by Myra Page,” “State and Revolution, by V. I. Lenin,” “Revolutionary Lessons, by V. I. Lenin,” “Program of the Trade Union Unity League,” “Proletarian Revolution, by V. I. Lenin,” “Communist Party U. S. A. District No. 17.”

A sufficient reply to this ground is that the indictment does not name this literature. It is assumed that this ground was included in the demurrer by mistake and was intended merely for another indictment against a different party.

This ground of the demurrer is insufficient to raise any issue. It is infected with the infirmity which it seeks to lay to the indictment. “A demurrer, being a critic, must itself be free from imperfection.”

“Grounds of demurrer which aver that stated paragraphs of the petition should be stricken because ‘too uncertain, indefinite, and vague’ to ‘entitle plaintiff to recover,’ or ‘to fix any liability upon defendant,’ without specifying in what particulars these paragraphs are subject to these criticisms, are themselves too general to present questions for decision to this court. See Askew v. Thompson, 129 Ga. 325 (3), 328, 58 S. E. 854.” Johnson v. Hopkins, 145 Ga. 817, 90 S. E. 60.

5. The first ground of demurrer is as follows: “Said indictment, while enumerating certain literature, alleged to have been circulated with insurrectionary intent, does not describe said literature, or give any notice of its character, contents or import, or furnish any description of the same, or put this defendant on notice as to the character of *832 the alleged literature alleged to be insurrectionary.”

It follows from what has already been said in the next preceding division of this opinion that the court did not err in overruling this ground.

Judgment affirmed.