Terminiello v. Chicago

Notable Items:

General verdict compels the court to set aside the verdict if any part of the statute or its construction violates the Constitution.
That construction of the ordinance [in the instruction to the jury See Procedural History] is a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance. See Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 317; Winters v. New York, 333 U. S. 507, 333 U. S. 514.
Petitioner did not take exception to that instruction.

Frankfurter Dissent: For the first time in the course of the 130 years in which State prosecutions have come here for review, this Court is today reversing a sentence imposed by a State court on a ground that was urged neither here nor below and that was explicitly disclaimed on behalf of the petitioner at the bar of this Court.

Jackson Dissent: Hence, many speeches, such as that of Terminiello, may be legally permissible, but may nevertheless, in some surroundings, be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society. When the right of society to freedom from probable violence should prevail over the right of an individual to defy opposing opinion presents a problem that always tests wisdom, and often calls for immediate and vigorous action to preserve public order and safety.
Jackson Dissent: The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. See The First Amendment Encyclopedia entry and The National Constitution Center entry.

Compare this case to Feiner v. New York (1951).

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• The case grew out of an address [, in February 1946,] he [Terminiello] delivered in an auditorium in Chicago under the auspices of the Christian Veterans of America.
• Outside of the auditorium, a crowd of about one thousand persons gathered to protest against the meeting.
• A cordon of policemen was assigned to the meeting to maintain order, but they were not able to prevent several disturbances.
• Petitioner, in his speech, condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation's welfare.
• A list of the material facts is available above

Procedural History:

• ... the trial court instructed the jury that any misbehavior which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" violates the ordinance.
• Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago, and fined.
• The Judgment of conviction was affirmed by the Illinois Appellate Court (332 Ill.App. 17, 74 N.E.2d 45) and by the Illinois Supreme Court. 396 Ill. 41, 71 N.E.2d 2; 400 Ill. 23, 79 N.E.2d 39.
• The case is here on a petition for certiorari, which we granted because of the importance of the question presented.

Rationale

Douglas Majority Opinion

• ..., a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.
• As we have noted, the statutory words "breach of the peace" were defined in instructions to the jury to include speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance...."
• That construction of the ordinance is a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance. See Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 317; Winters v. New York, 333 U. S. 507, 333 U. S. 514.
• The ordinance as construed by the trial court seriously invaded this province [freedom of speech]. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.
• The statute, as construed in the charge to the jury, was passed on by the Illinois courts and sustained by them over the objection that, as so read, it violated the Fourteenth Amendment.
• A full description of the rationale is available below

Vinson Dissent (??)

• The Court today reverses the Supreme Court of Illinois because it discovers in the record one sentence in the trial court's instructions which permitted the jury to convict on an unconstitutional basis.
• In short, the offending sentence in the charge to the jury was no part of the case until this Court's independent research ferreted it out of a lengthy and somewhat confused record.
• I think it too plain for argument that a reversal on such a basis does not accord with any principle governing review of state court decisions heretofore announced by this Court.
• The fact is that the Illinois courts construed the ordinance as punishing only the use of "fighting words."
• This Court can reverse the conviction because of the instruction only if we are to say that every time a state court affirms a conviction, it necessarily must approve of every unnoticed and unobjected-to error which we may discover in the record.
• If the petitioner's counsel, who carefully made other constitutional objections throughout the proceedings below, had brought any issue here as to the constitutional validity of that instruction, I would agree with the Court's decision.

Frankfurter Dissent (Jackson, Burton)

• For the first time in the course of the 130 years in which State prosecutions have come here for review, this Court is today reversing a sentence imposed by a State court on a ground that was urged neither here nor below and that was explicitly disclaimed on behalf of the petitioner at the bar of this Court.
• Thus, an objection, not raised by counsel in the Illinois courts, not made the basis of the petition for certiorari here -- not included in the "Questions Presented," nor in the "Reasons Relied On for the Allowance of the Writ" -- and explicitly disavowed at the bar of this Court, is used to upset a conviction which has been sustained by three courts of Illinois.
• All that the case [Stromberg] holds is that, where the validity of a statute is successfully assailed as to one of three clauses of a statute and all three clauses were submitted to the jury, the general verdict has an infirmity, because it cannot be assumed that the jury convicted on the valid portions of the statute, and not on the invalid.
• In the Stromberg case, an error that was properly urged was sustained. In this case, a claim that was not urged but was disavowed is transmuted into a claim denied.
• The matter touches the very basis of this Court's authority in reviewing the judgments of State courts.
• We have no authority to meddle with such a judgment unless some claim under the Constitution or the laws of the United States has been made before the State court whose judgment we are reviewing and unless the claim has been denied by that court. [Emphasis added]
• The relation of the United States and the courts of the United States to the States and the courts of the States is a very delicate matter. It is too delicate to permit silence when a judgment of a State court is reversed in disregard of the duty of this Court to leave untouched an adjudication of a State unless that adjudication is based upon a claim of a federal right which the State has had an opportunity to meet and to recognize.
• This Court has recognized that [$100] fines of this nature [civil proceeding] are not within provisions of the Constitution governing federal criminal prosecutions. See Hepner v. United States, 213 U. S. 103.

Jackson Dissent (Burton)

• But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot, and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two.
• When the trial judge instructed the jury that it might find Terminiello guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited dispute, brought about unrest, created a disturbance or molested peace and quiet by arousing alarm, he was not speaking of these as harmless or abstract conditions.
• He [the trial judge] was saying to the jury, in effect, that, if this particular speech added fuel to the situation already so inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of peace.
• Knowing of this environment, Terminiello made a long speech, from the stenographic record of which I omit relatively innocuous passages and add emphasis to what seems especially provocative:
• [among other quotes} "First of all, we had Queen Eleanor. Mr. Smith said, 'Queen Eleanor is now one of the world's communists.' She is one who said this -- imagine, coming from the spouse of the former President of the United States for twelve long years -- this is what she said: 'The war is but a step in the revolution. The war is but one step in the revolution, and we know who started the war.'"
• "Now, this danger which we face -- let us call them Zionist Jews if you will, let's call them atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them. You remember the Apostles when they went into the upper room after the death of the Master, they went in there, after locking the doors; they closed the windows."
• "We are strong enough. We are not going to be tolerant of their smears any longer. We are going to stand up and dare them to smear us...."
• [numerous quotes included]
• Such was the speech. Evidence showed that it stirred the audience not only to cheer and applaud but to expressions of immediate anger, unrest and alarm. The anti-Jewish stories elicited exclamations of "Oh," and "Isn't that terrible," and shouts of "Yes, send the Jews back to Russia," "Kill the Jews," "Dirty kikes," and much more of ugly tenor.
• This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a worldwide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe.
• And people lose faith in the democratic process when they see public authority flouted and impotent, and begin to think the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: "Christian Nationalism or World Communism -- Which?"
• Terminiello's victory today certainly fulfills the most extravagant hopes of both right and left totalitarian groups, who want nothing so much as to paralyze and discredit the only democratic authority that can curb them in their battle for the streets.
• A trial court and jury has found only that, in the context of violence and disorder in which it was made, this speech was a provocation to immediate breach of the peace, and therefore cannot claim constitutional immunity from punishment.
• "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 [or the State or City] has a right to prevent." (Emphasis supplied.) Mr. Justice Holmes, in Schenck v. United States (1919) , 249 U. S. 47, 249 U. S. 52.
• In this case, the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.
• Only recently, this Court held that a state could punish as a breach of the peace use of epithets such as "damned racketeer" and "damned fascist," addressed to only one person, an official, because likely to provoke the average person to retaliation. [Chaplinsky]
• "The essential rights of the First Amendment, in some instances, are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. " United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 95.
• Inasmuch as any breaches of peace from abuse of free speech traditionally were punishable by state governments, it was needless to reserve that power in a provision drafted to exclude only Congress from such a field of lawmaking. [regarding the wording of the First Amendment and lack of limitations therein.]
• "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses...." Cox v. New Hampshire
• Hence, we should tolerate no law or custom of censorship or suppression. But we must bear in mind also that no serious outbreak of mob violence, race rioting, lynching or public disorder is likely to get going without help of some speechmaking to some mass of people.
• Hence, many speeches, such as that of Terminiello, may be legally permissible, but may nevertheless, in some surroundings, be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society.
• Determination of such an issue involves a heavy responsibility. Courts must beware lest they become mere organs of popular intolerance.
• When the right of society to freedom from probable violence should prevail over the right of an individual to defy opposing opinion presents a problem that always tests wisdom, and often calls for immediate and vigorous action to preserve public order and safety.
• I do not think that the Constitution of the United States denies to the states and the municipalities power to solve that problem in the light of local conditions, at least so long as danger to public order is not invoked in bad faith, as a cover for censorship or suppression.
• The ways in which mob violence may be worked up are subtle and various. Rarely will a speaker directly urge a crowd to lay hands on a victim or class of victims. An effective and safer way is to incite mob action while pretending to deplore it, after the classic example of Antony, and this was not lost on Terminiello.
• The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Douglas Majority Full Argument

• See Material Facts
• See Procedural History
• The argument here has been focused on the issue of whether the content of petitioner's speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees. See Chaplinsky v. New Hampshire (1942) , 315 U. S. 568; Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 310.
• We do not reach that question, for there is a preliminary question that is dispositive of the case.
• As we have noted, the statutory words "breach of the peace" were defined in instructions to the jury to include speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance...."
• That construction of the ordinance is a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance. See Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 317; Winters v. New York, 333 U. S. 507, 333 U. S. 514.
• Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.
• ... freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 315 U. S. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U. S. 252, 314 U. S. 262; Craig v. Harney, 331 U. S. 367, 331 U. S. 373.
• There is no room under our Constitution for a more restrictive view.
• The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.
• The statute, as construed in the charge to the jury, was passed on by the Illinois courts and sustained by them over the objection that, as so read, it violated the Fourteenth Amendment.
• From our point of view, it is immaterial whether the state law question as to its meaning was controverted or accepted [by the jury instruction?].
• To say, therefore, that the question on this phase of the case is whether the trial judge gave a wrong charge is wholly to misconceive the issue.
• But it is said that, throughout the appellate proceedings, the Illinois courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting "fighting words."
• For all anyone knows, he was convicted under the parts of the ordinance (as construed) which, for example, make it an offense merely to invite dispute or to bring about a condition of unrest.
• The core of the rationale is available above