Rosenfeld Susan. Encyclopedia of American Historical Documents

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and established under article III of the Constitution of the

United States.”

Title III—Wiretapping and Electronic Surveillance

Findings. . . .

(a) Wire communications are normally conducted

through the use of facilities which form part of an inter-

state network. The same facilities are used for interstate

and intrastate communications. There has been extensive

wiretapping carried on without legal sanctions, and with-

out the consent of any of the parties to the conversation.

Electronic, mechanical, and other intercepting devices are

being used to overhear oral conversations made in private,

without the consent of any of the parties to such commu-

nications. The contents of these communications and evi-

dence derived therefrom are being used by public and

private parties as evidence in court and administrative pro-

ceedings, and by persons whose activities affect interstate

commerce. The possession, manufacture, distribution,

advertising, and use of these devices are facilitated by

interstate commerce.

* * *

and oral communications in their criminal activities. The

interception of such communications to obtain evidence of

the commission of crimes or to prevent their commission

is an indispensable aid to law enforcement and the admin-

istration of justice.

(d) To safeguard the privacy of innocent persons, the

interception of wire or oral communications where none of

the parties to the communication has consented to the

interception should be allowed only when authorized by a

court of competent jurisdiction and should remain under

the control and supervision of the authorizing court. Inter-

ception of wire and oral communications should further be

limited to certain major types of offenses and specific cat-

egories of crime with assurances that the interception is

justified and that the information obtained thereby will not

be misused.

“Chapter 119. Wire Interception and Interception of

Oral Communications

* * *

“Section 2510. Definitions. . .

“(1) ‘wire communication’ means any communication

made in whole or in part through the use of facilities for

the transmission of communications by the aid of wire,

cable, or other like connection between the point of origin

and the point of reception furnished or operated by any

person engaged as a common carrier in providing or oper-

ating such facilities for the transmission of interstate or for-

eign communications;

“(2) ‘oral communication’ means any oral communica-

tion uttered by a person exhibiting an expectation that

such communication is not subject to interception under

circumstances justifying such expectation;

* * *

“(4) ‘intercept’ means the aural acquisition of the con-

tents of any wire or oral communication through the use of

any electronic, mechanical, or other device.

“(5) ‘electronic, mechanical, or other device’ means

any device or apparatus which can be used to intercept a

wire or oral communication [with specified exceptions].

“(6) ‘person’ means any employee, or agent of the

United States or any State or political subdivision thereof,

and any individual, partnership, association, joint stock

company, trust, or corporation;

“(7) ‘Investigative or law enforcement officer’ means

any officer of the United States or of a State or political

subdivision thereof, who is empowered by law to conduct

investigations of or to make arrests for offenses enumer-

ated in this chapter, and any attorney authorized by law to

prosecute or participate in the prosecution of such

offenses;

“(8) ‘contents’, when used with respect to any wire or

oral communication, includes any information concerning

the identity of the parties to such communication or the

existence, substance, purport, or meaning of that commu-

nication;

* * *

“Section 2511. Interception and disclosure of wire or oral

communications prohibited

“(1) Except as otherwise specially provided in this

chapter any person who—

“(a) willfully intercepts, endeavors to intercept, or pro-

cures any other person to intercept or endeavor to inter-

cept, any wire or oral communication;

“(b) willfully uses, endeavors to use, or procures any

other person to use or endeavor to use any electronic,

mechanical or other device to intercept any oral commu-

nication

“(iv) such use or endeavor to use (A) takes place on the

premises of any business or other commercial establish-

ment the operations of which affect interstate or foreign

commerce; or (B) obtains or is for the purpose of obtain-

ing information relating to the operations of any business

or other commercial establishment the operations of

which affect interstate or foreign commerce. . .

“(c) willfully discloses, or endeavors to disclose, to any

other person the contents of any wire or oral communica-

tion, knowing or having reason to know that the informa-

tion was obtained through the interception of a wire or oral

communication in violation of this subsection; or

1632 ERA 9: Postwar United States

“(d) willfully uses, or endeavors to use, the contents of

any wire or oral communication, knowing or having reason

to know that the information was obtained through the

interception of a wire or oral communication in violation of

this subsection; shall be fined . . . or imprisoned. . . .

* * *

“(c) It shall not be unlawful under this chapter for a

person acting under color of law to intercept a wire or oral

communication, where such person is a party to the com-

munication or one of the parties to the communication has

given prior consent to such interception.

“(d) It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a wire or

oral communication where such person is a party to the

communication or where one of the parties to the com-

munication has given prior consent to such interception

unless such communication is intercepted for the purpose

of committing any criminal or tortuous act in violation of

the Constitution or laws of the United States or of any

State or for the purpose of committing any other injurious

act.

“(3) Nothing contained in this chapter or in section

605 of the Communications Act of 1934 (48 Stat. 1143; 47

U.S.C. 605) shall limit the constitutional power of the

President to take such measures as he deems necessary to

protect the Nation against actual or potential attack or

other hostile acts of a foreign power, to obtain foreign

intelligence information deemed essential to the security

of the United States, or to protect national security infor-

mation against foreign intelligence activities. Nor shall

anything contained in this chapter be deemed to limit the

constitutional power of the President to take such mea-

sures as he deems necessary to protect the United States

against the overthrow of the Government by force or

other unlawful means, or against any other clear and pre-

sent danger to the structure or existence of the Govern-

ment. The contents of any wire or oral communication

intercepted by authority of the President in the exercise

of the foregoing powers may be received in evidence in

any trial hearing, or other proceeding only where such

interception was reasonable, and shall not be otherwise

used or disclosed except as is necessary to implement that

power.

“Section 2512. Manufacture, distribution, possession,

and advertising of wire or oral communication intercepting

devices prohibited [with exceptions].

* * *

“Section 2514. Immunity of witnesses

“Whenever in the judgment of a United States attor-

ney the testimony of any witness. . .involving any violation

of this chapter or any of the offenses enumerated in sec-

tion 2516, or any conspiracy to violate this chapter or any

of the offenses enumerated in section 2516 is necessary to

the public interest, such United States attorney, upon the

approval of the Attorney General, shall make application

to the court that the witness shall be instructed to testify or

produce evidence subject to the provisions of this section,

and upon order of the court such witness shall not be

excused from testifying or from producing . . . evidence on

the ground that the testimony or evidence required of him

may tend to incriminate him or subject him to a penalty or

forfeiture. No such witness shall be prosecuted or sub-

jected to any penalty or forfeiture for or on account of any

transaction, matter or thing concerning which he is com-

pelled, after having claimed his privilege against self-

incrimination, to testify or produce evidence. . . . No

witness shall be exempt under this section from prosecu-

tion for perjury or contempt committed while giving testi-

mony or producing evidence under compulsion as

provided in this section.

“Section 2515. Prohibition of use as evidence of inter-

cepted wire or oral communications

“Whenever any wire or oral communication has been

intercepted, no part of the contents of such communica-

tion and no evidence derived therefrom may be received

in evidence in any trial, hearing, or other proceeding in or

before any court, grand jury, department, officer, agency,

regulatory body, legislative committee, or other authority

of the United States, a State, or a political subdivision

thereof. . . .

“Section 2516. Authorization for interception of wire

or oral communications

“(1) The Attorney General, or any Assistant Attorney

General specially designated by the Attorney General, may

authorize an application to a Federal judge of competent

jurisdiction for, and such judge may grant. . .an order autho-

rizing or approving the interception of wire or oral commu-

nications by the Federal Bureau of Investigation, or a

Federal agency having responsibility for the investigation of

the offense as to which the application is made, when such

interception may provide or has provided evidence of—

“(a) any offense punishable by death or by imprison-

ment for more than one year . . . relating to the enforce-

ment of the Atomic Energy Act of 1954 or . . . relating to

espionage, . . . sabotage, . . . treason . . . or . . . riots;

“(b) . . . restrictions on payments and loans to labor

organizations, or any offense which involves murder, kid-

napping, robbery, or extortion. . . .

“(c) bribery. . . , transmission of wagering informa-

tion. . . . influencing or injuring an officer, juror, or wit-

ness. . . , obstruction of criminal investigations . . . ,

Presidential assassinations, kidnapping, and assault . . . ,

interference with commerce by threats or violence . . . ,

travel or transportation in aid of racketeering enterprises

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1633

. . . , influence operations of employee benefit plan . . . ,

theft from interstate shipment . . . , embezzlement from

pension and welfare funds . . . , interstate transportation

of stolen property);

“(d) any offense involving counterfeiting . . . ;

involving bankruptcy fraud or the manufacture, im-

portation, receiving, concealment, buying, selling, or oth-

erwise dealing in narcotic drugs, marihuana, or other

dangerous drugs. . . .

“(f) any offense including extortionate credit transac-

tions. . . .

“(g) any conspiracy to commit any of the foregoing

offenses. . . .

* * *

“Section 2517. Authorization for disclosure and use of

intercepted wire or oral communications

“(1) Any investigative or law enforcement officer who,

by any means authorized by this chapter, has obtained

knowledge of the contents of any wire or oral communica-

tion, or evidence derived therefrom, may disclose such

contents to another investigative or law enforcement offi-

cer to the extent that such disclosure is appropriate to the

proper performance of the official duties of the officer

making or receiving the disclosure.

“(2) Any investigative or law enforcement officer who,

by any means authorized by this chapter, has obtained

knowledge of the contents of any wire or oral communica-

tion or evidence derived therefrom may use such contents

to the extent such use is appropriate to the proper perfor-

mance of his official duties.

“(3) Any person who has received, by any means

authorized by this chapter, any information concerning a

wire or oral communication, or evidence derived there-

from intercepted in accordance with the provisions of

this chapter may disclose the contents of that communica-

tion. . . while giving testimony . . . in any criminal pro-

ceeding in any court of the United States or of any State or

in any Federal or State grand jury proceeding.

* * *

“(5) When an investigative or law enforcement officer,

while engaged in intercepting wire or oral communications

in the manner authorized herein, intercepts wire or oral

communications relating to offenses other than those spec-

ified in the order of authorization or approval, the contents

thereof, and evidence derived therefrom, may be disclosed

or used . . . when authorized or approved by a judge of

competent jurisdiction. . . . [if] . . .

“(a) there is probable cause for belief that an indi-

vidual is committing, has committed, or is about to commit

a particular offense enumerated in section 2516 of this

chapter;

“(b) there is probable cause for belief that particular

communications concerning that offense will be obtained

through such interception;

“(c) normal investigative procedures have been tried

and have failed or reasonably appear to be unlikely to suc-

ceed if tried or to be too dangerous;

“(d) there is probable cause for belief that the facilities

from which, or the place where, the wire or oral commu-

nications are to be intercepted are being used, or are about

to be used, in connection with the commission of such

offense. . . .

“(5) No order entered under this section may autho-

rize or approve the interception of any wire or oral com-

munication for any period longer than is necessary to

achieve the objective of the authorization, nor in any

event than thirty days. Extensions of an order may be

granted. . . .

“(7) . . . Any investigative or law enforcement officer,

specially designated by the Attorney General or by the

principal prosecuting attorney of any State or subdivision

thereof . . . who reasonably determines that—

“(a) an emergency situation exists with respect to con-

spiratorial activities threatening the national security inter-

est or to conspiratorial activities characteristic of organized

crime. . . .

* * *

“Sec. 605. Except as authorized by chapter 119, title 18,

United States Code, no person receiving, assisting in

receiving, transmitting, or assisting in transmitting,

any interstate or foreign communication by wire or radio

shall divulge or publish the existence, contents, sub-

stance, purport, effect, or meaning thereof, except

through authorized channels of transmission or recep-

tion. . . .

* * *

Sec. 804. (a) There is hereby established a National Com-

mission for the Review of Federal and State Laws Relating

to Wiretapping and Electronic Surveillance. . . .

* * *

(d) It shall be the duty of the Commission to conduct

a comprehensive study and review of the operation of the

provisions of this title. . .to determine the effectiveness of

such provisions during the six-year period immediately fol-

lowing the date of their enactment.

* * *

Title IV—State Firearms Control Assistance

Findings and Declaration

Sec. 901. (a) The Congress hereby finds and

declares—

1634 ERA 9: Postwar United States

(1) that there is a widespread traffic in firearms mov-

ing in or otherwise affecting interstate or foreign com-

merce, and that the existing Federal controls over such

traffic do not adequately enable the States to control this

traffic within their own borders through the exercise of

their police power;

(2) that the ease with which any person can acquire

firearms other than a rifle or shotgun (including criminals,

juveniles without the knowledge or consent of their par-

ents or guardians, narcotics addicts, mental defectives,

armed groups who would supplant the functions of duly

constituted public authorities, and others whose posses-

sion of such weapons is similarly contrary to the public

interest) is a significant factor in the prevalence of lawless-

ness and violent crime in the United States;

(3) that only through adequate Federal control over

interstate and foreign commerce in these weapons, and

over all persons engaging in the businesses of importing,

manufacturing, or dealing in them, can this grave problem

be properly dealt with, and effective State and local regu-

lation of this traffic be made possible;

(4) that the acquisition on a mail-order basis of fire-

arms other than a rifle or shotgun by nonlicensed individ-

uals, from a place other than their State of residence, has

materially tended to thwart the effectiveness of State laws

and regulations, and local ordinances;

(5) that the sale or other disposition of concealable

weapons by importers, manufacturers, and dealers holding

Federal licenses, to nonresidents of the State in which the

licensees’ places of business are located, has tended to

make ineffective the laws, regulations, and ordinances in

the several States and local jurisdictions regarding such

firearms;

(6) that there is a causal relationship between the easy

availability of firearms other than a rifle or shotgun and

juvenile and youthful criminal behavior, and that such

firearms have been widely sold by federally licensed

importers and dealers to emotionally immature, or thrill-

bent juveniles and minors prone to criminal behavior;

(7) that the United States has become the dumping

ground of the castoff surplus military weapons of other

nations, and that such weapons, and the large volume of

relatively inexpensive pistols and revolvers (largely worth-

less for sporting purposes), imported into the United

States in recent years, has contributed greatly to lawless-

ness and to the Nation’s law enforcement problems;

(8) that the lack of adequate Federal control over

interstate and foreign commerce in highly destructive

weapons (such as bazookas, mortars, antitank guns, and

so forth, and destructive devices such as explosive or

incendiary grenades, bombs, missiles, and so forth) has

allowed such weapons and devices to fall into the hands

of lawless persons, including armed groups who would

supplant lawful authority, thus creating a problem of

national concern. . . .

Chapter 44.—Firearms

“(a) As used in this chapter—

“(1) The term ‘person’ and the term ‘whoever’

includes any individual, corporation, company, association,

firm, partnership, society, or joint stock company.

* * *

“(3) The term ‘firearm’ means any weapon (including

a starter gun) which will or is designed to or may readily be

converted to expel a projectile by the action of an explo-

sive; the frame or receiver of any such weapon; or any

firearm muffler or firearm silencer; or any destructive

device.

“(4) The term ‘destructive device’ means any explosive,

incendiary, or poison gas bomb, grenade, mine, rocket, mis-

sile, or similar device; and includes any type of weapon

which will or is designed to or may readily be converted to

expel a projectile by the action of any explosive and having

any barrel with a bore of one-half inch or more in diameter.

“Section 922. Unlawful acts

“(a) It shall be unlawful—

“(1) for any person, except a licensed importer,

licensed manufacturer, or licensed dealer, to engage in the

business of importing, manufacturing, or dealing in

firearms, or ammunition, or in the course of such business

to ship, transport, or receive any firearm or ammunition in

interstate or foreign commerce.

“(2) for any importer, manufacturer, or dealer licensed

under the provisions of this chapter to ship or transport in

interstate or foreign commerce, any firearm other than a

rifle or shotgun, or ammunition to any person other than a

licensed importer, licensed manufacturer, or licensed

dealer. . . .

* * *

Title V—Disqualification for Engaging in Riots and

Civil Disorders

“Section 7313. Riots and civil disorders

“(a) An individual convicted by any. . .competent juris-

diction of—

“(1) inciting a riot or civil disorder;

“(2) organizing, promoting, encouraging, or participat-

ing in a riot or civil disorder;

“(3) aiding or abetting any person in committing any

offense specified in clause (1) or (2); or

“(4) any offense determined by the head of the

employing agency to have been committed in furtherance

of, or while participating in, a riot or civil disorder; shall, if

the offense for which he is convicted is a felony, be ineligi-

ble to accept or hold any position in the Government of

the United States or in the government of the District of

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1635

Columbia for the five years immediately following the date

upon which his conviction becomes final. . . .

* * *

Title VI—Confirmation of the Director of the

Federal Bureau of Investigation

Sec. 1101. Effective as of the day following the date on

which the present incumbent in the office of Director

ceases to serve as such, the Director of the Federal Bureau

of Investigation shall be appointed by the President, by

and with the advice and consent of the Senate, and shall

receive compensation at the rate prescribed for level II of

the Federal Executive Salary Schedule.

Title VII—Unlawful Possession or Receipt

of Firearms

Sec. 1202. (a) Any person who—

(1) has been convicted by a court of the United States

or of a State or any political subdivision thereof of a felony,

(2) has been discharged from the Armed Forces under

other than honorable conditions, or

(3) has been adjudged by a court of the United States

or of a State or any political subdivision thereof of being

mentally incompetent, or

(4) having been a citizen of the United States has

renounced his citizenship, or

(5) being an alien is illegally or unlawfully in the

United States. . . .

* * *

Title IX—Additional Grounds for Issuing Warrant

* * *

“Section 3103a. Additional grounds for issuing warrant

“In addition to the grounds for issuing a warrant in

section 3103 of this title, a warrant may be issued to search

for and seize any property that constitutes evidence of a

criminal offense in violation of the laws of the United

States.”

* * *

Approved June 19, 1968, 7:14 p.m.

Source:

Statutes at Large, Vol. 82, pp 197–239.

Brandenburg v. Ohio, 1969

U.S. Supreme Court decision issued on June 9, 1969, protect-

ing free speech unless such speech represented a clear threat

of violence. It overturned an Ohio criminal syndicalism act

under which the defendant had been convicted of leading a

gathering of 12 hooded and armed figures who burned a cross

and denounced blacks and Jews. The Supreme Court ruled

that the constitutional guarantees of free speech and free press

prevented a state from forbidding the advocacy of the use of

force or of law violation “except where such advocacy is

directed to inciting or producing imminent lawless action and

is likely to incite or produce such action.”

________________________

_______________________

Argued Feb. 27, 1969.

Decided June 9, 1969.

Per Curiam.

The appellant, a leader of a Ku Klux Klan group, was

convicted under the Ohio Criminal Syndicalism statute for

“advocat[ing] . . . the duty, necessity, or propriety of crime,

sabotage, violence, or unlawful methods of terrorism as a

means of accomplishing industrial or political reform” and

for “voluntarily assembl[ing] with any society, group, or

assemblage of persons formed to teach or advocate the

doctrines of criminal syndicalism.” Ohio Rev. Code Ann.

SectionSection 2923.13. He was fined $1,000 and sen-

tenced to one to 10 years’ imprisonment. The appellant

challenged the constitutionality of the criminal syndicalism

statute under the First and Fourteenth Amendments to

the United States Constitution, but the intermediate

appellate court of Ohio affirmed his conviction without

opinion. The Supreme Court of Ohio dismissed his appeal,

sua sponte, “for the reason that no substantial constitu-

tional question exists herein.” It did not file an opinion or

explain its conclusions. Appeal was taken to this Court, and

we noted probable jurisdiction. 393 U.S. 948, 89 S.Ct. 377,

21 L.Ed.2d 360 (1968). We reverse.

The record shows that a man, identified at trial as the

appellant, telephoned an announcer-reporter on the staff

of a Cincinnati television station and invited him to come

to a Ku Klux Klan “rally” to be held at a farm in Hamilton

County. With the cooperation of the organizers, the

reporter and a cameraman attended the meeting and

filmed the events. Portions of the films were later broad-

cast on the local station and on a national network.

The prosecution’s case rested on the films and on tes-

timony identifying the appellant as the person who com-

municated with the reporter and who spoke at the rally.

The State also introduced into evidence several articles

appearing in the film, including a pistol, a rifle, a shotgun,

ammunition, a Bible, and a red hood worn by the speaker

in the films.

One film showed 12 hooded figures, some of whom

carried firearms. They were gathered around a large

wooden cross, which they burned. No one was present

other than the participants and the newsmen who made

the film. Most of the words uttered during the scene were

1636 ERA 9: Postwar United States

incomprehensible when the film was projected, but scat-

tered phrases could be understood that were derogatory of

Negroes and, in one instance, of Jews. Another scene on

the same film showed the appellant, in Klan regalia, mak-

ing a speech. The speech, in full, was as follows:

“This is an organizers’ meeting. We have had quite a

few members here today which are—we have hundreds,

hundreds of members throughout the State of Ohio. I can

quote from a newspaper clipping from the Columbus,

Ohio Dispatch, five weeks ago Sunday morning. The Klan

has more members in the State of Ohio than does any

other organization. We’re not a revengent organization,

but if our President, our Congress, our Supreme Court,

continues to suppress the white, Caucasian race, it’s possi-

ble that there might have to be some revengeance taken.

“We are marching on Congress July the Fourth, four

hundred thousand strong. From there we are dividing into

two groups, one group to march on St. Augustine, Florida,

the other group to march into Mississippi. Thank you.”

The second film showed six hooded figures one of

whom, later identified as the appellant, repeated a speech

very similar to that recorded on the first film. The refer-

ence to the possibility of “revengeance” was omitted, and

one sentence was added: “Personally, I believe the nigger

should be returned to Africa, the Jew returned to Israel.”

Though some of the figures in the films carried weapons,

the speaker did not.

[1] The Ohio Criminal Syndicalism Statute was

enacted in 1919. From 1917 to 1920, identical or quite

similar laws were adopted by 20 States and two territories.

E. Dowell, A History of Criminal Syndicalism Legislation

in the United States 21 (1939). In 1927, this Court sus-

tained the constitutionality of California’s Criminal Syndi-

calism Act. Cal. Penal Code SectionSection 11400-11402,

the text of which is quite similar to that of the laws of Ohio.

Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71

L.Ed. 1095 (1927). The Court upheld the statute on the

ground that, without more, “advocating” violent means to

effect political and economic change involves such danger

to the security of the State that the State may outlaw it. Cf.

Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108

(1927). But Whitney has been thoroughly discredited by

later decisions. See Dennis v. United States, 341 U.S. 494,

at 507, 71 S.Ct. 857, at 866, 95 L.Ed. 1137 (1951). These

later decisions have fashioned the principle that the con-

stitutional guarantees of free speech and free press do not

permit a State to forbid or proscribe advocacy of the use of

force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action

and is likely to incite or produce such action. As we said in

Noto v. United States, 367 U.S. 290, 297-298, 81 S.Ct.

1517, 1520-1521, 6 L.Ed.2d 836 (1961), “the mere abstract

teaching . . . of the moral propriety or even moral necessity

for a resort to force and violence, is not the same as prepar-

ing a group for violent action and steeling it to such

action.” See also Herndon v. Lowry, 301 U.S. 242, 259-

261, 57 S.Ct. 732, 739- 740, 81 L.Ed. 1066 (1937); Bond v.

Floyd, 385 U.S. 116, 134, 87 S.Ct. 339, 348, 17 L.Ed.2d

235 (1966). A statute which fails to draw this distinction

impermissibly intrudes upon the freedoms guaranteed by

the First and Fourteenth Amendments. It sweeps within

its condemnation speech which our Constitution has

immunized from governmental control. Cf. Yates v. United

States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356

(1957); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81

L.Ed. 278 (1937); Stromberg v. California, 283 U.S. 359,

51 S.Ct. 532, 75 L.Ed. 1117 (1931). See also United States

v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508

(1967); Keyishian v. Board of Regents, 385 U.S. 589, 87

S.Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384

U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Aptheker v.

Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d

992 (1964); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316,

12 L.Ed.2d 377 (1964).

[2, 3] Measured by this test, Ohio’s Criminal Syndical-

ism Act cannot be sustained. The Act punishes persons

who “advocate or teach the duty, necessity, or propriety” of

violence “as a means of accomplishing industrial or politi-

cal reform”; or who publish or circulate or display any book

or paper containing such advocacy; or who “justify” the

commission of violent acts “with intent to exemplify,

spread or advocate the propriety of the doctrines of crimi-

nal syndicalism”; or who “voluntarily assemble” with a

group formed “to teach or advocate the doctrines of crim-

inal syndicalism.” Neither the indictment nor the trial

judge’s instructions to the jury in any way refined the

statute’s bald definition of the crime in terms of mere

advocacy not distinguished from incitement to imminent

lawless action.

Accordingly, we are here confronted with a statute

which, by its own words and as applied, purports to punish

mere advocacy and to forbid, on pain of criminal punish-

ment, assembly with others merely to advocate the de-

scribed type of action. Such a statute falls within the

condemnation of the First and Fourteenth Amendments.

The contrary teaching of Whitney v. California, supra, can-

not be supported, and that decision is therefore overruled.

Reversed.

Mr. Justice Black, concurring.

I agree with the views expressed by Mr. Justice Dou-

glas in his concurring opinion in this case that the “clear

and present danger” doctrine should have no place in the

interpretation of the First Amendment. I join the Court’s

opinion, which, as I understand it, simply cites Dennis v.

United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137

(1951), but does not indicate any agreement on the Court’s

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1637

part with the “clear and present danger” doctrine on which

Dennis purported to rely.

Mr. Justice Douglas, concurring.

While I join the opinion of the Court, I desire to enter

a caveat.

The “clear and present danger” test was adumbrated

by Mr. Justice Holmes in a case arising during World War

I—a war “declared” by the Congress, not by the Chief

Executive. The case was Schenck v. United States, 249 U.S.

47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, where the defen-

dant was charged with attempts to cause insubordination

in the military and obstruction of enlistment. The pam-

phlets that were distributed urged resistance to the draft,

denounced conscription, and impugned the motives of

those backing the war effort. The First Amendment was

tendered as a defense. Mr. Justice Holmes in rejecting that

defense said:

“The question in every case is whether the words used

are used in such circumstances and are of such a nature as

to create a clear and present danger that they will bring

about the substantive evils that Congress has a right to pre-

vent. It is a question of proximity and degree.”

Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249,

63 L.Ed. 561, also authored by Mr. Justice Holmes,

involved prosecution and punishment for publication of

articles very critical of the war effort in World War I.

Schenck was referred to a conviction for obstructing secu-

rity “by words of persuasion.” Id., at 206, 39 S.Ct. at 250.

And the conviction in Frohwerk was sustained because

“the circulation of the paper was in quarters where a little

breath would be enough to kindle a flame.” Id., at 209, 39

S.Ct., at 251.

Debs v. United States, 249 U.S. 211, S.Ct. 252, 63

L.Ed. 566, was the third of the trilogy of the 1918 Term.

Debs was convicted of speaking in opposition to the war

where his “opposition was so expressed that its natural and

intended effect would be to obstruct recruiting.” Id., at

215, 39 S.Ct. at 253.

“If that was intended and if, in all the circumstances,

that would be its probable effect, it would not be protected

by reason of its being part of a general program in expres-

sions of a general and conscientious belief.” Ibid.

In the 1919 Term, the Court applied the Schenck doc-

trine to affirm the convictions of other dissidents in World

War I. Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17,

63 L.Ed. 1173, was one instance. Mr. Justice Holmes, with

whom Mr. Justice Brandeis concurred, dissented. While

adhering to Schenck, he did not think that on the facts a

case for overriding the First Amendment had been made

out:

“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.” 250 U.S., at 628, 40

S.Ct., at 21.

Another instance was Schaefer v. United States, 251

U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360, in which Mr. Justice

Brandeis, joined by Mr. Justice Holmes, dissented. A third

was Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64

L.Ed. 542, in which again Mr. Justice Brandeis, joined by

Mr. Justice Holmes, dissented.

Those, then, were the World War I cases that put the

gloss of “clear and present danger” on the First Amend-

ment. Whether the war power—the greatest leveler of

them all—is adequate to sustain that doctrine is debatable.

The dissents in Abrams, Schaefer, and Pierce show how

easily “clear and present danger” is manipulated to crush

what Brandeis called “[t]he fundamental right of free men

to strive for better conditions through new legislation and

new institutions” by argument and discourse (Pierce v.

United States, supra, at 273, 40 S.Ct. at 217) even in time

of war. Though I doubt if the “clear and present danger”

test is congenial to the First Amendment in time of a de-

clared war, I am certain it is not reconcilable with the First

Amendment in days of peace.

The Court quite properly overrules Whitney v. Cali-

fornia, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, which

involved advocacy of ideas which the majority of the Court

deemed unsound and dangerous.

Mr. Justice Holmes, though never formally abandon-

ing the “clear and present danger” test, moved closer to

the First Amendment ideal when he said in dissent in Git-

low [Gitlow v. People of State of New York, 268 U.S. 652,

45 S.Ct. 626, 69 L.Ed. 1138]:

“Every idea is an incitement. It offers itself for belief

and it believed it is acted on unless some other belief out-

weighs it or some failure of energy stifles the movement at

its birth. The only difference between the expression of an

opinion and an incitement in the narrower sense is the

speaker’s enthusiasm for the result. Eloquence may set fire

to reason. But whatever may be thought to the redundant

discourse before us it had no chance of starting a present

conflagration. If in the long run the beliefs expressed in

proletarian dictatorship are destined to be accepted by the

dominant forces of the community, the only meaning of

free speech is that they should be given their chance and

have their way.”

We have never been faithful to the philosophy of that

dissent.

The Court in Herndon v. Lowry, 301 U.S. 242, 57

S.Ct. 732, 81 L.Ed. 1066, overturned a conviction for exer-

cising First Amendment rights to incite insurrection

because of lack of evidence of incitement. Id., at 259-261,

57 S.Ct., at 739-740. And see Hartzel v. United States, 322

U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534. In Bridges v. Cal-

1638 ERA 9: Postwar United States

ifornia, 314, U.S. 252, 261-263, 62 S.Ct. 190, 192- 194, 86

L.Ed. 192, we approved the “clear and present danger”

test in an elaborate dictum that tightened it and confined

it to a narrow category. But in Dennis v. United States, 341

U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, we opened wide the

door, distorting the “clear and present danger” test beyond

recognition.

In that case the prosecution dubbed an agreement to

teach the Marxist creed a “conspiracy.” The case was sub-

mitted to a jury on a charge that the jury could not convict

unless it found that the defendants “intended to overthrow

the Government as speedily as circumstances would per-

mit.’” Id., at 509-511, 71 S.Ct., at 867. The Court sustained

convictions under that charge, construing it to mean a

determination of “whether the gravity of the “evil,” dis-

counted by its improbability, justifies such invasion of free

speech as is necessary to avoid the danger.’” Id., at 510, 71

S.Ct., at 868, quoting from United States v. Dennis, 183

F.2d 201, 212.

Out of the “clear and present danger” test came other

offspring. Advocacy and teaching of forcible overthrow of

government as an abstract principle is immune from pros-

ecution. Yates v. United States, 354 U.S. 298, 318, 77 S.Ct.

1064, 1076, 1 L.Ed.2d 1356. But an “active” member, who

has a guilty knowledge and intent of the aim to overthrow

the Government by violence, Noto v. United States, 367

U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836, may be prose-

cuted. Scales v. United States, 367 U.S. 203, 228, 81 S.Ct.

1469, 1485, 6 L.Ed.2d 782. And the power to investigate,

backed by the powerful sanction of contempt, includes the

power to determine which of the two categories fits the

particular witness. Barenblatt v. United States, 360 U.S.

109, 130, 79 S.Ct. 1081, 1094, 3 L.Ed.2d 1115. And so the

investigator roams at will through all of the beliefs of the

witness, ransacking his conscience and his innermost

thoughts.

Judge Learned Hand, who wrote for the Court of

Appeals in affirming the judgment in Dennis, coined the

“not improbable” test, United States v. Dennis, 2 Cir., 183

F.2d 201, 214, which this Court adopted and which Judge

Hand preferred over the “clear and present danger” test.

Indeed, in his book, The Bill of Rights 59 (1958), in refer-

ring to Holmes’ creation of the “clear and present danger”

test, he said, “I cannot help thinking that for once Homer

nodded.”

My own view is quite different. I see no place in the

regime of the First Amendment for any “clear and pre-

sent danger” test, whether strict and tight as some would

make it, or free- wheeling as the Court in Dennis re-

phrased it.

When one reads the opinions closely and sees when

and how the “clear and present danger” test has been

applied, great misgivings are aroused. First, the threats

were often loud but always puny and made serious only by

judges so wedded to the status quo that critical analysis

made them nervous. Second, the test was so twisted and

perverted in Dennis as to make the trial of those teachers

of Marxism an all-out political trial which was part and par-

cel of the cold war that has eroded substantial parts of the

First Amendment.

Action is often a method of expression and within the

protection of the First Amendment.

Suppose one tears up his own copy of the Constitution

in eloquent protest to a decision of this Court. May he be

indicted?

Suppose one rips his own Bible to shreds to celebrate

his departure from one “faith” and his embrace of atheism.

May he be indicted?

Last Term the Court held in United States v. O’Brien,

391 U.S. 367, 382, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672,

that a registrant under Selective Service who burned his

draft card in protest of the war in Vietnam could be pros-

ecuted. The First Amendment was tendered as a defense

and rejected, the Court saying:

“The issuance of certificates indicating the registration

and eligibility classification of individuals is a legitimate

and substantial administrative aid in the functioning of this

system. And legislation to insure the continuing availability

of issued certificates serves a legitimate and substantial

purpose in the system’s administration.” 391 U.S., at 377-

378, 88 S.Ct. at 1679.

But O’Brien was not prosecuted for not having his

draft card available when asked for by a federal agent. He

was indicted, tried and convicted for burning the card.

And this Court’s affirmance of that conviction was not,

with all respect, consistent with the First Amendment.

The act of praying often involves body posture and

movement as well as utterances. It is nonetheless pro-

tected by the Free Exercise Clause. Picketing, as we have

said on numerous occasions, as “free speech plus.” See

Bakery and Pastry Drivers and Helpers Local 802 of Inter-

national Brotherhood of Teamsters v. Wohl, 315 U.S. 769,

775, 62 S.Ct. 816, 819, 86 L.Ed. 1178 (Douglas, J., con-

curring); Giboney v. Empire Storage Co., 336 U.S. 490,

501, 69 S.Ct. 684, 690, 93 L.Ed. 834; Hughes v. Superior

Court, 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985;

National Labor Relations Board v. Fruit and Vegetable

Packers, 377 U.S. 58, 77, 84 S.Ct. 1063, 1073, 12 L.Ed.2d

129 (Black, J., concurring), and id., at 93, 84 S.Ct. at 1081

(Harlan, J., dissenting); Cox v. Louisiana, 379 U.S. 559,

578, 85 S.Ct. 466, 468, 476, 13 L.Ed.2d 487 (opinion of

Black, J.); Amalgamated Food Employees v. Logan Plaza,

391 U.S. 308, 326, 88 S.Ct. 1601, 1612, 29 L.Ed.2d 603

(Douglas, J., concurring). That means that it can be regu-

lated when it comes to the “plus” or “action” side of the

protest. It can be regulated as to the number of pickets and

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1639

the place and hours (see Cox v. Louisiana, supra ), because

traffic and other community problems would otherwise

suffer.

But none of these considerations are implicated in the

symbolic protest of the Vietnam war in the burning of a

draft card.

One’s beliefs have long been thought to be sanctuaries

which government could not invade. Barenblatt is one

example of the ease with which that sanctuary can be vio-

lated. The lines drawn by the Court between the criminal

act of being an “active” Communist and the innocent act of

being a nominal or inactive Communist mark the differ-

ence only between deep and abiding belief and casual or

uncertain belief. But I think that all matters of belief are

beyond the reach of subpoenas or the probings of in-

vestigators. That is why the invasions of privacy made by

investigating committees were notoriously unconstitution-

al. That is the deep-seated fault in the infamous loyalty-

security hearings which, since 1947 when President

Truman launched them, have processed 20,000,000 men

and women. Those hearings were primarily concerned

with one’s thoughts, ideas, beliefs, and convictions. They

were the most blatant violations of the First Amendment

we have ever known.

The line between what is permissible and not subject

to control and what may be made impermissible and

subject to regulation is the line between ideas and overt

acts.

The example usually given by those who would punish

speech is the case of one who falsely shouts fire in a

crowded theatre.

This is, however, a classic case where speech is

brigaded with action. See Speiser v. Randall, 357 U.S. 513,

536-537, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (Douglas, J.,

concurring.) They are indeed inseparable and a prosecu-

tion can be launched for the overt acts actually caused.

Apart from rare instances of that kind, speech is, I think,

immune from prosecution. Certainly there is no constitu-

tional line between advocacy of abstract ideas as in Yates

and advocacy of political action as in Scales. The quality of

advocacy turns on the depth of the conviction; and gov-

ernment has no power to invade that sanctuary of belief

and conscience.

Source:

Supreme Court Reporter, Vol. 89, pp. 1,827–1,834.

Furman v. Georgia, 1972

U.S. Supreme Court per curium decision issued on June 29,

1972, in which the death penalty as administered in three

cases was held 5-4, with nine separate concurring and dis-

senting opinions, to constitute “cruel and unusual punish-

ment” in violation of the Eighth and Fourteenth Amendments.

(Only Justices William Brennan and Thurgood Marshall

declared the death penalty per se unconstitutional.) The deci-

sion overturned the death sentences of three black petitioners

from Georgia and Texas who had been convicted of capital

crimes (murder and rape). Both states allowed juries at their

discretion but without any specific guides or limits to impose

the death penalty.

Furman

halted all executions in the 39

states with death penalties involving more than 600 prisoners.

Gregg v. Georgia

(428 U.S. 153 [1976]) the Court permitted

jury discretion if guidelines were provided. Inconsistencies

remain, and the death penalty continues to be served against

minority criminals more than whites, but the Court has

allowed it to stand.

After DNA testing became widely available, in the late

1990s, a number of death row and life sentence subjects have

been found to be innocent of the crimes of which they were

convicted.

On June 21, 2002, the Supreme Court in

Atkins v. Virginia

(536 U.S. 304), citing a national consensus, decided that exe-

cuting mentally retarded criminals violated the Eighth Amend-

ment against cruel and unusual punishment. Thirteen years

earlier, in

Penry v. Lynaugh

(492 U.S. 302), the Court held dif-

ferently because a national consensus was not evident at that

time. Four days after

Adkins

, the Supreme Court ruled 7-2 in

Ring v. Arizona

(No. 01-488) that juries, not judges, must

determine whether a convicted murderer is subject to the

death penalty.

Justices Douglas, Brennan, Stewart, White, and Marshall

filed separate opinions in support of the judgments; Chief Jus-

tice Burger, Blackmun, Powell, and Rehnquist filed separate

dissenting opinions. Only the per curiam and Justice Douglas’s

opinion are reproduced here.

________________________

_______________________

Per Curiam.

Petitioner in No. 69-5003 was convicted of murder in

Georgia and was sentenced to death. . . . Petitioner in No.

69-5030 was convicted of rape in Georgia and was sen-

tenced to death. . . . Petitioner in Nos. 69-5031 was con-

victed of rape in Texas and was sentenced to death. . . .

Certiorari was granted limited to the following question:

“Does the imposition and carrying out of the death penalty

in [these cases] constitute cruel and unusual punishment

in violation of the Eighth and Fourteenth Amendments?”

. . .The Court holds that the imposition and carrying out of

the death penalty in these cases constitute cruel and

unusual punishment in violation of the Eighth and Four-

teenth Amendments. The judgment in each case is there-

fore reversed insofar as it leaves undisturbed the death

sentence imposed, and the cases are remanded for further

proceedings. So ordered.

1640 ERA 9: Postwar United States

Mr. Justice Douglas, concurring.

In these three cases the death penalty was imposed,

one of them for murder, and two for rape. In each the

determination of whether the penalty should be death or a

lighter punishment was left by the State to the discretion

of the judge or of the jury. In each of the three cases the

trial was to a jury. They are here on petitions for certiorari

which we granted limited to the question whether the

imposition and execution of the death penalty constitute

“cruel and unusual punishment” within the meaning of the

Eighth Amendment as applied to the States by the Four-

teenth. I vote to vacate each judgment, believing that the

exaction of the death penalty does violate the Eighth and

Fourteenth Amendments.

That the requirements of due process ban cruel and

unusual punishment is now settled. . . . It is also settled

that the proscription of cruel and unusual punishments

forbids the judicial imposition of them as well as their

imposition by the legislature

Congressman Bingham, in proposing the Fourteenth

Amendment, maintained that “the privileges or immuni-

ties of citizens of the United States” as protected by the

Fourteenth Amendment included protection against

“cruel and unusual punishments:”

* * *

Whether the privileges and immunities route is followed,

or the due process route, the result is the same.

It has been assumed in our decisions that punishment

by death is not cruel, unless the manner of execution can

be said to be inhuman and barbarous. . . . It is also said in

our opinions that the proscription of cruel and unusual

punishments “is not fastened to the obsolete, but may

acquire meaning as public opinion becomes enlightened

by a humane justice.” . . . A like statement was made in

Trop v. Dulles. . .that the Eighth Amendment “must draw

its meaning from the evolving standards of decency that

mark the progress of a maturing society.”

The generality of a law inflicting capital punishment is

one thing. What may be said of the validity of a law on the

books and what may be done with the law in its application

do, or may, lead to quite different conclusions.

It would seem to be incontestable that the death

penalty inflicted on one defendant is “unusual” if it dis-

criminates against him by reason of his race, religion,

wealth, social position, or class, or if it is imposed under

a procedure that gives room for the play of such preju-

dices.

There is evidence that the provision of the English Bill of

Rights of 1689, from which the language of the Eighth

Amendment was taken, was concerned primarily with

selective or irregular application of harsh penalties and

that its aim was to forbid arbitrary and discriminatory

penalties of a severe nature:

* * *

The English Bill of Rights, enacted December 16, 1689,

stated that “excessive bail ought not to be required, nor

excessive fines imposed, nor cruel and unusual punish-

ments inflicted.” These were the words chosen for our

Eighth Amendment. A like provision had been in Virginia’s

Constitution of 1776 and in the constitutions of seven

other States. The Northwest Ordinance, enacted under

the Articles of Confederation, included a prohibition cruel

and unusual punishments. But the debates of the First

Congress on the Bill of Rights throw little light on its

intended meaning. All that appears is the following:

“Mr. Smith, of South Carolina, objected to the words

‘nor cruel and unusual punishments;’ the import of them

being too indefinite.

“Mr. Livermore: The clause seems to express a great

deal of humanity, on which account I have no objection

to it; but as it seems to have no meaning in it, I do not

think it necessary. What is meant by the terms excessive

bail? Who are to be the judges? What is understood by

excessive fines? It lies with the court to determine. No

cruel and unusual punishment is to be inflicted; it is

sometimes necessary to hang a man, villains often

deserve whipping, and perhaps having their ears cut off;

but are we in future to be prevented from inflicting these

punishments because they are cruel? If a more lenient

mode of correcting vice and deterring others from the

commission of it could be invented, it would be very pru-

dent in the Legislature to adopt it; but until we have

some security that this will be done, we ought not to be

restrained from making necessary laws by any declaration

of this kind.”

The words “cruel and unusual” certainly include

penalties that are barbaric. But the words, at least when

read in light of the English proscription against selective

and irregular use of penalties, suggest that it is “cruel and

unusual” to apply the death penalty—or any other

penalty—selectively to minorities whose numbers are few,

who are outcasts of society, and who are unpopular, but

whom society is willing to see suffer though it would not

countenance general application of the same penalty

across the board. . . .

The Court in McGautha v. California . . . noted that in

this country there was almost from the beginning a “rebel-

lion against the common-law rule imposing a mandatory

death sentence on all convicted murderers.” The first

attempted remedy was to restrict the death penalty to

defined offenses such as “premeditated” murder. . . . But

juries “took the law into their own hands” and refused to

convict on the capital offense.

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1641