Herndon v. Lowry
57 S. Ct. 732, 301 U.S. 242, 1937 U.S. LEXIS 290 (1937)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state statute that punishes speech and assembly without evidence of an intent to incite imminent violence, and which is so vague that it provides no ascertainable standard of guilt, violates the Fourteenth Amendment's guarantees of freedom of speech and due process.
Facts:
- Angelo Herndon, a member of the Communist Party, was a paid organizer sent to Atlanta, Georgia.
- His duties included calling meetings, distributing literature, and recruiting new members for the party.
- Herndon held or attended three meetings for the purpose of organizing and recruiting.
- When arrested, Herndon was in possession of a box containing Communist Party literature, membership books, and pamphlets.
- Some of the literature advocated for revolutionary goals, including the establishment of an independent Black republic in the southern United States, to be achieved through measures such as confiscating land from white landowners.
- There was no evidence that Herndon had distributed the specific literature advocating for violence or that he had personally advocated for violent insurrection.
- The only documents Herndon was proven to have circulated were innocuous flyers regarding county relief for the unemployed.
Procedural Posture:
- Angelo Herndon was convicted of attempting to incite insurrection by a jury in the Superior Court of Fulton County, Georgia.
- On appeal, the Supreme Court of Georgia affirmed the conviction, applying a broad construction of the statute that did not require the danger of insurrection to be imminent.
- Herndon's subsequent appeal to the U.S. Supreme Court was dismissed for lack of jurisdiction.
- Herndon then filed a petition for a writ of habeas corpus in the Superior Court of Fulton County, arguing the statute was unconstitutional.
- The Superior Court granted the writ, finding the statute void for being too vague and indefinite.
- The sheriff, Lowry (appellee), appealed this decision to the Supreme Court of Georgia.
- The Supreme Court of Georgia reversed the lower court, upholding the conviction and the statute's constitutionality.
- Herndon (appellant) then appealed the Georgia Supreme Court's denial of his habeas corpus petition to the U.S. Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a state statute criminalizing the attempt to incite insurrection, as construed and applied to an individual for soliciting members for a political party and possessing that party's literature, violate the Fourteenth Amendment's guarantees of free speech, free assembly, and due process?
Opinions:
Majority - Mr. Justice Roberts
Yes. The Georgia statute, as applied, violates the Fourteenth Amendment. A conviction for attempting to incite insurrection cannot stand based merely on soliciting members for a political party and possessing its literature, absent any proof that the defendant specifically advocated for violence or that their actions created a clear and present danger of insurrection. The evidence failed to show Herndon did anything more than attend peaceful meetings and solicit members for the Communist Party, whose platform contained both legal and allegedly illegal aims. Crucially, there was no proof Herndon ever showed the revolutionary documents to anyone or advocated for their violent tenets. To criminalize this conduct is an unwarranted invasion of freedom of speech and assembly. Furthermore, the statute is unconstitutionally vague because the standard of guilt articulated by the Georgia Supreme Court—that an insurrection might occur at any future time when the defendant's influence might be operative—provides no ascertainable standard and licenses a jury to create its own standard based on speculation.
Dissenting - Mr. Justice Van Devanter
No. The Georgia statute, as construed and applied, is constitutional. The state court properly interpreted the law to require an intent to bring about forcible resistance to the state's lawful authority. The evidence was sufficient for a jury to infer that Herndon, as a paid organizer, was using the party's revolutionary literature to recruit members, thereby attempting to incite others to join in combined forcible resistance. The literature itself unambiguously advocated for violence and revolution. The state does not have to wait until danger is imminent to act; it has the right to 'arrest at its incipiency any effort to overthrow the state government.' The standard of guilt, requiring intent that insurrection occur within a reasonable time, is not unconstitutionally vague and provides a sufficiently definite basis for determining guilt or innocence.
Analysis:
This decision significantly strengthened First Amendment protections by rejecting the broad 'dangerous tendency' test in the context of a vaguely worded statute. It established that mere advocacy of abstract doctrine or association with a radical group is insufficient for a conviction; the state must prove a defendant's specific intent to incite unlawful action that presents a clear and present danger. The case is also a landmark for the 'void for vagueness' doctrine, holding that a criminal statute must provide a clear and ascertainable standard of guilt to satisfy due process. This prevents arbitrary enforcement and ensures individuals have fair notice of what conduct is prohibited.
Unlock the full brief for Herndon v. Lowry