xt7msb3wtd0h_59 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Beauharnais v. People of the State of Illinois - no. 118 text Beauharnais v. People of the State of Illinois - no. 118 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_222/Folder_7/Multipage7568.pdf 1951 1951 1951 section false xt7msb3wtd0h_59 xt7msb3wtd0h February 29, 1952

Dear Felix:

Re: No. 118 - Beauharnais v. Illinois

I agree.

Mr. Justice Frankfurter


No. 118.—OCTOBER TERM, 1951.

:“"\ \v T ‘3"

Joseph Bcauharnais, Petitioner, On IVrit of Certiorari

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MR. JUSTICE FRANKFURTER delivered the opinion of th 5:, W'szboK/{co £4,

The People of the State of of the State of Illi-
Illinois. nois.

The petitioner was convicted upon information in the
Municipal Court of Chicago of violating §224a of Divi-
sion 1 of the Illinois Penal Code, Ill. Rev. Stat. 1949, c.
38, § 471. He was fined $200. The section provides:

“It shall be unlawful for any person, firm or corpora—
tion to manufacture, sell, or offer for sale, advertise
or publish, present or exhibit in any public place in
this state any lithograph, moving picture, play,
drama or sketch, which publication or exhibition por-
trays depravity, criminality, unchastity, or lack of
virtue of a class of citizens, of any race, color, creed
or religion which said publication or exhibition ex—
poses the citizens of any race, color, creed or religion
to contempt, derision, or obloquy or which is produc-
tive of breach of the peace or riots. . . .”

Beauharnais challenged the statute as violating the liberty
of speech and of the press guaranteed as against the States
by the Due Process Clause of the Fourteenth Amendment,
and as too vague, under the restrictions implicit in the
same Clause, to support conviction for crime. The Illi-
nois courts rejected these contentions and sustained de—
fendant’s conviction. 408 Ill. 512. We granted certio-
rari in view of the serious questions raised concerning the




limitations imposed by the Fourteenth Amendment on the
power of a State to punish utterances promoting friction
among racial and religious groups. 342 1'. S. 800.

The information. cast generally in the terms of the stat—
ute, charged that Beauharnais “did unlawfully . . . ex—
hibit in public places lithographs, which publications por—
tray depravity, criminality. unchastity or lack of virtue
of citizens of Negro race and color and which exposes [sic]
citizens of Illinois of the Negro race and color to contempt,
derision, or obloquy . .” The lithograph complainetl
of was a leaflet setting forth a petition calling on the
Blayor and City Council of Chicago “to halt the further
encroachment, harassment and invasion of white people,
their property, neighborhoods and persons, by the Ne—
gro .” Below was a call for “One million self re-
specting white people of Chicago to unite . . . 5" with the
statement added that “If persuasion and the need to pre—
vent the white race from becoming mongrelizcd by the
negro will not unite us, then the aggressions . . . rapes,
robberies. knives. (runs and marijuana of the negro, surely
will.” This, with more language, similar if not so violent,
concluded with an attached application for membership
in the “Vlllte Circle League of America, Inc.

The testimony at the trial was substantially undisputed.
From it the jury could find that Beauharnais was
president of the White Circle League; that, at a meeting
on January (3, 1950. he passed out bundles of the litho-
graphs in question, together with other literature, to vol—
unteers for distribution on downtown Chicago street cor—
ners the following day; that he carefully organized that
distribution. giving detailed instructions for it; and that
the leaflets were in fact distributed on January 7 in ac—
cordanee with his plan and instructions. The court, to—
gcther with other charges on burden of proof and the like,
told the jury “if you find . . . that the defendant, Joseph



Beauharnais, did . . . manufacture, sell, or offer for sale,
advertise or publish, present or exhibit in any public place
the lithograph . . . then you are to find the defendant
guilty . . . .” He refused to charge the jury, as re—
quested by the defendant, that in order to convict they
must find “that the article complained of was likely to
produce a clear and present danger of a serious substan—
tive evil that rises far above public inconvenience. annoy-
ance or unrest.” Upon this evidence and these instruc—
tions. the jury brought in the conviction here for review.

The statute before us is not a catchall enactment left
at large by the State court which applied it. Cf. Thorn—
lzi'll v. Alabama, 310 U. S. SS; Cantuicll v. Connecticut,
310 1*. S. 206. 307. It is a law specifically directed at a
defined evil. its language drawing from history and prac—
tice in Illinois and in more than a score of other jurisdic—
tions a meaning confirmed by the Supreme Court of that
State in upholding this conviction. We do not, therefore,
parse the statute as grainmarians or treat it as an abstract
exercise in lexicography. lVe read it in the animating
context of well—defined usage. Nash v. United States, 229
U. S. 373.1 and State court construction which determines
its meaningr for us. Cox v. New Hampshire, 312 U. S.
569; C/zaplms/ry v. New Hampshire, 315 U. S. 568.

The Illinois Supreme Court tells us that §224a “is a
form of criminal libel law.” 408 Ill. 51?, 517. The de-
fendant, the trial court and the Supreme Court consist—
ently treated it as such. The defendant offered evidence
tending to prove the truth of parts of the utterance, and
the courts below considered and disposed of this offer in

1 "The requirement of reasonable certainty does not preclude the
use of ordinary terms to express ideas which find adequate interpre-
tation in common usage and umlerstanding. [Citationsfl The use
of common experience as a glossary is necessary to meet, the practical
demands of legislation.” Sproh's v. Biaford, 286 U. S. 374, 303.




terms of ordinary criminal libel pr ecedents. 2 Section 224a
does not deal with the defense of truth but by the Illi—
nois Constitution Art. II, 4, “in all trials for libel both
civil and criminal the truth. when published 11 1111 good
motives and for justifiable ends sh all be a sufficient dc—
fense.” See also Ill Rev Stat.,1949 c 38% 404 Simi—
151111 the action of the trial court in decidin: as a matter
of law the libelous character of the utterance leaving to
the 11111' only the question of publication follo11s the set—
tled 1111c in prosecutions for libel in Illinois and other
States." Moreover, the Supreme Court's characterization
of the words prohibited by the statute as those “liable to
cause violence and disorder” paraphrases the traditional
justification for punishing libels criminally, namely their
“tendency to cause breach of the peace." ’

Libel of an individual 1v as a common— law crime, and
thus criminal' 111 the colonies. Indeed, at common law,
truth or good moti1 es was no defense. In the first dec—
ades after the adoption of the Constitution this 11as
changed by 111dicial decision statute or constitution in
most States but 11011 here 11 as there any suggestion that
the crime of libel be abolished Today, every American

2100 Ill. 512, 518. Illinois law requires that for the dcten.< e to
11101:,1il the truth of a ll facts 111 the utter ancc 11111.\ t be 51101111 toae ther'
with good motive for publication 1311011101". .S'tmuc/ 247 Ill. 220;
Pc071t111'. Itdlm, 238 Ill. 116; cf. Og20211'.Poc/101(IS[(11 Pr [11t'2 21g ('.,o
2S8 Ill. J01.

“Sec, c. (1.. State 1. Stcr2.11(m 199 Iowa 169 ; State 1. I](1"',11r11(/ 160
N. C. 312, 3137 1; cf. Omen 1'. P00]. [01d Sta) P2[21t[11 11] Co ., supra.

‘3,‘S1e c. (1., People v..,S]1c[[man BlSIlL 482, 4%); Odg'crs, Iil 1(l and
Sl:"mdcr (tit Illltt .), 308; 19 A L 13.1470. Some States hold how—
c1'11‘, th:'1t mirirv to reputation, as in civil libel and not 1111(l11111 to
l)1‘(.‘ 1i-l1 ol the peace, is the rj'r .'11 amen ol the, ot'ittnse. See laucnhaus,
Group Iilnl, 31 Cornell L. Q. 2t til, -73 .111d 11 (37.

5For a l1ri1faccouut'tot' this dewloprnent .9111 11 1:'rren,lli'tor1'ot
the Anrer‘it: 111 1}: 1r, 2'3ti— 333'). See .1l. 0 corrc pondcnce l1el11een (hirl
J11 tice Cu hiuw of '\Il\\l(llll~(l s and John Aduns, publis lied 111 ‘27
M.1>':‘.L 0. ll— 10 (04.1012 letlerxon explained in :1 letter to




jurisdiction—the forty—eight States, the District of Colum—
bia, Alaska, Hawaii and Pnerto Rico—punish libels di—
rected at individuals.G “There are certain well-defined
and narrowly limited classes of speech, the prevention

Abigail Adams, dated September 11, 180—1, that to strike down the
Alien and Sedition Act would not “remove all restraint from the over—
whelu‘iing torrent of slander which is confounding all vice and virtue,
all truth and falsehood in the US. The power to do that is fully
possessed by the several state legislatures.” See Dennis v. United
States. 341 U. S. I‘ll, 522, n. Jr. bee Miller, Crisis in Freedom, lfiS-
10$), 231—232. See also provisions as to criminal libel in lZdward Liv—
ingston's famous draft System of Penal Law for Louisiana, 2 “'orlis
Of Edward Livingston 100—108.

0 In eight States the offense is punished as at common law, with—
out legislative enactment. State v. Roberts, 2 Marv. 450, 43 A. 252
(Del); ('o/e V'. Commonn‘ca/t/t, 222 Ky. 350, 300 S. \V. OUT; Ifobinsozi
V. State. 108 Md. 1344, 71 A. 4133; ('omntonawait/I V. ("ant/‘1'. 241‘.) Mass.
3:39, lfiS N. E. 700; State V'. Burnhmn. f) N. H. 31; State v. Spent; 13
R. I. 321; State v. Sutton, 7-1 Vt. 12, 52 A. 116; State V. Pug/11c, 87
IV. Va. 102, 101 S. E. 288. Twelve other jurisdictions make "libel”
a crime by statute, without defining the term. Ala. Code, 1940,
Tit. l—l, §347; Alaska Comp. Laws Ann., 1010, §Oi3—l—2S; D. C.
Code, 1940, §22—2301; Illa. Stat. Ann, 1943, §83li.f)l; llurns Ind.
Stat, litiiil, §lfl~32f)l; Miss. Code, 1012, S2208; Neb. llev. Stat,
10—13%, §2$——HO; N. .l. Stat. Ann., 1930, §2:l»l.(3—l; N. C. Gen. Stat,
1943, 5311747; I’ae‘e‘s Ohio Gen. Code, 193.0, §133b53; Wis. Stat,
1010, §i,llS.-l-l; \Vy‘o. Comp. Stat, 19-15, §9~lt501. Thus, twenty
Anu-rir‘an jurisdictions punish "libel” as defined by the ease—by—case
CUHlllltlll'hflV develomnent.

The remaining jurisdictions have sought to east the. common—law
definition in a statutory form of words. Two formulas have been
popular. lileven jurisdictions, Illinois among them, have accepted
with minor variations the following:

“A libel is a malicious defamation, expressed either by printing, or by
signs or pictures, or the like, tending to blacken the memory of one
who is dead, or to impeach the honesty, integrity, virtue or reputa-
tion or llllllii.‘ll the natural defects of one who is alive, and thereby to
expose him to public hatred, contenu’it, ridicule, or financial injury.”
Ariz. (‘ode Amt, 1953‘), § 31.35741]: Ark. Stain, 191,", fill—27101; Deer—
iu'r's (‘al. l’eual Code, lllllt, §2sl\',: Colo. Stat. ;\nn., 11135, c. :18,
§llltt; tla.(,‘12 Col. L. Ilev. at 727. I’rofessor Iliesman continues:
“Such purposeful attacks are nothing new, of course. . . . What is
new, however, is the existence of a mobile public opinion as the con-
trolling force in politics, and the systematic manipulation of that
opinion by the use of calculated falsehood and vilifieation.” Id, at

1" See, 0. {/.. L. IIand, .I., in a symposium in The Saturday Review
of Literature, Mar. 15, 1947, pp. 237—24; Ileport of the Committee
on the Law of I')efamatiou, Cmd. 7536, 11 (19-18).



is the most abstruse of all sciences; if, indeed, that can
be called a science which has but few fixed principles, and
practically consists in little more than the exercise of a
sound discretion, applied to the exigencies of the state as
they arise. It is the science of experiment.” Anderson
V. Dunn, (3 Wheat. 204, 226. Certainly the Due Process
Clause does not require the legislature to be in the van—
guard of science—especially sciences as young as human
ecology and cultural anthropology. See Tigner v. Teams,
310 U. S. 141, 148.

Long ago this Court recognized that the economic rights
of an individual may depend for the effectiveness of their
enforcement on rights in the group. even though not for—
mally corporate, to which he belongs. American Found-
ries v. Tri~City Council, 257 U. S. 189. Such group-pro—
tection on behalf of the individual may, for all we know,
be a need not confined to the part that a trade union plays
in effectuating rights abstractly recognized as belonging
to its members. It is not within our competence to con—
firm or deny claims of social scientists as to the depend—
ence of the individual on the position of his racial or re-
ligious group in the community. It would, however, be
arrant dogmatism, quite outside the scope of our authority
in passing on the powers of a State, for us to deny that
the Illinois Legislature may warrantably believe that a
man’s job and his educational opportunities and the dig-
nity accorded him may depend as much on the reputation
of the racial and religious group to which he willy-nilly
belongs, as it does on his own merits. This being so, we
are precluded from saying that speech conccdedly punish-
able when immediately directed at individuals cannot be
outlawed if directed at groups with whose position and
esteem in society the affiliated individual may be inex—
tricably involved.

We are warned that the choice we permit the Illinois
legislature here may be abused, that the law may be dis—



criminatorily enforced; prohibiting libel of a creed or of
a racial group, we are told, is but a step from prohibiting
libel of a political party.m Every power may be abused,
but the possibility of abuse is a poor reason for denying
Illinois the power to adopt measures against criminal
libels sanctioned by centuries of Anglo—American law.
“While this Court sits" it retains and exercises authority
to nullify action which encroaches on freedom of utter—
ance under the guise of punishing libel. Of course dis-
cussion cannot be stifled and the right, as well as the duty,
of criticism must not be inhibited.

The scope of the statute before us, as construed by the
Illinois court, disposes of the contention that the conduct
prohibited by the law is so ill-defined that judges and
juries in applying the statute and men in acting cannot
draw from it adequate standards to guide them. The
clarifying construction and fixed usage which govern the
meaning of the enactment before us were not present, so
the Court found, in the New York law held invalid in
Winters v. New York, 333 U. S. 507. Nor, thus con—
strued and limited, is the act so broad that the general
verdict of guilty on an indictment drawn in the statutory
language might have been predicated on constitutionally
protected conduct. On this score, the conviction here re—
viewed differs from those upset in Strombcrg V. California,
283 U. S. 359, Thornhill v. Alabama, supra, and Termi-

1" It deserves emphasis that there is no such attempt in this stat-
ute. The rubric “race, color, creed or religion” which descrilgics the-
type of group, libel of which is punishable, has attained too fixed a
meaning to permit political groups to be brought within it. If a
statute sought to outlaw libels of political parties, quite different
problems not now before us would be raised. For one thing, the
whole doctrine of fair connnent as indispensable to the democratic
political process would come into play. See People v. Falter, supra,
at 125; Commonwealth v. Pratt, 208 Mass. 553, 559. Political par-
ties, like public men, are, as it were, public property.




niello v. Chicago, 337 U. S. 1. Even the latter case did not
hold that the unconstitutionality of a statute is established
because the speech prohibited by it raises a ruckus.

It is suggested that while it was clearly within the con-
stitutional power of Illinois to punish this utterance if
the proceeding were properly safeguarded, in this partic—
ular case Illinois denied the defendant rights which the !‘
Due Process Clause commands. Specifically, it is argued 1:
that the defendant was not permitted to raise at the trial '
defenses constitutionally guaranteed in a criminal libel
prosecution: (1) the defense of truth; (2) justification of
the utterance as “fair comment”; and (3) its privilege
as a means for redressing grievances.

Neither by proffer of evidence, requests for instructions,
or motion before or after verdict did the defendant seek
to justify his utterance as “fair comment” or as privileged.
Nor has the defendant urged as a ground for reversing his
conviction in this Court. that his opportunity to make
those defenses was denied below. And so, whether a
prosecution for libel of a group is unconstitutionally in-
valid where the State did deny the defendant such oppor-
tunities is not before us.30 Certainly the State may cast
the burden of justifying what is patent defamation upon
the defamer. The benefits of hypothetical defenses, never
raised below or pressed upon us, are not to be invoked
in the abstract.

As to the defense of truth, Illinois in common with many
States requires a showing not only that the utterance
state the facts, but also that the publication be made
“with good motives and for justifiable ends.” Ill. Const,

3” Indeed, such defenses are evidently protected by Illinois law.
Sec III. Const, Art. II, §17, guaranteeing the right of the people
to apply for redress of grievances. And see People v. Fullcr, 238 Ill. ‘
116, 125 on the defense of “fair comment” in criminal libel prosc-




Art. II, § 4.21 Both elements are necessary if the defense
is to prevail. What has been called “the common sense
of American criminal law,” infra, at ——, as formulated 111
the New York constitution of 1821, has been adopted in
terms by Illinois. The teaching of a century and a