c10:Nos. 474 and 475

Mr. Justice Van Devanter,
dissenting.
I am of opinion that the Georgia statute, as construed and applied by the supreme court of the State in Herndon’s case, prescribes a reasonably definite and ascertainable standard by which to determine the guilt or innocence of the accused, and does not encroach on his right of freedom of speech or of assembly.
It plainly appears, I think, that the offense defined in the statute, and of which Herndon was convicted, was not that of advocating a change in the state government by lawful means, such as an orderly exertion of the elective franchise or of the power to amend the state constitution, but was that of attempting to induce and incite others to join in combined forcible resistance to the lawful authority of the State.
Sections 55, 56 and 57 of the Penal Code of Georgia deal with insurrection, attempts to incite insurrection, and the punishment therefor, and are so closely related that all evidently have a bearing on the scope and meaning of any one of them. Section 55 denounces insurrection and defines it as “any combined resistance to the lawful authority of the State, with intent to the denial ■thereof, when the same is manifested or intended to be manifested by acts of violence.” Section 56 denounces an attempt to incite insurrection and defines it as “any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the lawful authority of the State.” Section 57 prescribes the punishment for each of these offenses.
While § 56 does not in direct terms include force or violence as a feature of the “combined resistance to the lawful authority of the State” the attempt to induce which it denounces, the supreme court of the State has construed the section, doubtless by reason of its relation to the others, as making intended resort to force or violence an essential element of such “combined resistance.” Therefore the section must be taken as if expressly embodying this construction. It was under § 56 that Herndon was indicted, tried and convicted.
By the indictment he was charged with attempting to induce others to join in combined resistance to the lawful authority of the State “by open force and by violent means, and by unlawful acts,” the modes of attempted inducement being specified. Upon the trial the court instructed the jury that neither “possession of literature insurrectionary in its nature” nor “engaging in academic or philosophical discussion of abstract principles of economics or political or other subjects, however radical or revolutionary in their nature,” would warrant a conviction ; and that a verdict of guilt could not be given unless it clearly appeared from the evidence that “immediate serious violence against the State” was expected or advocated by the accused.
In affirming the conviction the supreme court of the State held that under the statute “force must have been contemplated,” but that it is not necessary to guilt that the accused “should have intended that an insurrection should follow instantly or at any given time, but it would be sufficient that he intended it to happen at any time, as a result” of his persuasion — the intent of the statute being “to arrest at its ineipiency any effort to overthrow the state government, where it takes the form of an actual attempt to incite others to insurrection.”
Then, coming to consider the sufficiency of the evidence, the supreme court stated: “From what has been said, the question here is simply this: did the evidence show that the defendant made any attempt to induce others to come together in any combined forcible resistance to the lawful authority of the State?” And the court concluded its consideration of this question by saying, “The jury were amply authorized to infer that violence was intended and that the defendant did attempt to induce others to combine in such resistance to the lawful authority of the State.” (Italics supplied.)
The accused sought a rehearing, largely because of his understanding of what was said in the court’s opinion respecting the expected time of the intended resort to force. A rehearing was denied, and in that connection the court said:
“The language used by this court should be considered with the usual reasonable implications. The phrase 'at any time,’ as criticized in the motion for rehearing, was not intended to mean at any time in the indefinite future, or at any possible later time, however remote. An activity now could hardly be expected to be the direct producing cause of an insurrection after the lapse of a great period of time, and it was not the purpose of this court to suggest that as to the mental requisite any such intent would be a sufficient ingredient of an attempt to incite an insurrection. On the contrary the phrase ‘at any time’ was necessarily intended, and should have been understood, to mean within a reasonable time; that is, within such time as one’s persuasion or other adopted means might reasonably be expected to be directly operative in causing an insurrection. Accordingly, the statements by this court as quoted in the motion for rehearing are to be accepted in the following sense: Force must have been contemplated, but the statute does not include either its occurrence or its imminence as an ingredient of the particular offense charged. Nor would it be necessary to guilt that the alleged offender should have intended that an insurrection should follow instantly or at any given time, but as to this element it would be sufficient if he intended that it should happen at any time within which he might reasonably expect his influence to continue to be directly operative in causing such action by those whom he sought to induce. This statement, considered with what was said in the original decision, represents the view of this court as to the proper construction of the statute under consideration; and under the statute as thus interpreted, we say, as before, that the evidence was sufficient to authorize the conviction. In view of what has been said above, it would seem that all contentions made in the motion for rehearing should necessarily fail, based, as they are, upon an erroneous construction of our decision.” (Italics supplied.)
It thus is made quite plain that the case proceeded from beginning to end, and in both state courts, upon the theory that the offense denounced by the statute and charged in the indictment was that of attempting to induce and incite others to join in combined forcible resistance to the lawful authority of the State; that the jury returned a verdict of guilty upon that theory; and that it was upon the same theory that the supreme court held the jury’s verdict was supported by the evidence, and affirmed the conviction.
The present appeal is not from that judgment of affirmance but from a judgment denying a subsequent petition for habeas corpus.
If it be assumed that on this appeal the evidence produced on the trial in the' criminal case may be examined to ascertain how the statute was applied, I am of opinion, after such an examination, that the statute was applied as if the words “combined resistance” therein were in letter and meaning “combined forcible resistance.”
The evidence, all of which is embodied in the present record, will be here stated in reduced volume without omitting anything material.
Herndon is a negro and a member of the Communist Party of the U. S. A., which is a section of the Communist International. He was sent from Kentucky to Atlanta, Georgia, as a paid organizer for the party. Atlanta is> within an area where there is a large negro population, and the Communist Party has been endeavoring to extend its activities and membership to that population among others. Herndon’s duties as an organizer were to call and conduct meetings, to disseminate information respecting the party, to distribute its literature, to educate prospects and secure members, to receive dues and contributions, and to work up a subordinate organization of the party. He called and conducted meetings which evidently were secret, solicited and secured members, and received dues and contributions. He and others, when becoming members, subscribed to an obligation saying “The undersigned declares his adherence to the program and statutes of the Communist International and the Communist Party of the U. S. A., and agrees to submit to the discipline of the party and to engage actively in its work.”
When arrested he had under his arm a box in which he was carrying membership and collection books which he had been using and various pamphlets, books and documents, all pertaining to the structure, purposes and activities of the party. Two or three of the papers had been prepared by him and disclosed that he was an active spirit in the “Section Committee” and the “Unemployment Committee,” both subordinate local agencies of the party. The membership books, besides showing names of those whom he had induced to become members and dates of their admission, contained extracts from the party statutes, some of which read:
“A member of the Party can be every person from the age of eighteen up who accepts the program and statutes of the Communist International and the Communist Party of the U. S. A., who becomes a member of a basic organization of the Party, who is active in this organization, who subordinates himself to all decisions of the Comintern and of the Party, and regularly pays his membership dues.”
“The strictest Party Discipline is the most solemn duty of all Party members and all Party organizations. The decisions of the Cl and the Party Convention of the CC and of all leading committees of the Party, must be promptly carried out. Discussion of questions over which there have been differences must not continue after the decision has been made.”
“The Party is the vanguard of the working class and consists of the best, most class conscious, most active, the most courageous members of that class. It incorporates the whole body of experience of the proletarian struggle, basing itself upon the revolutionary theory of Marxism and representing the general and lasting interests of the whole of the working class. The Party personifies the unity of proletarian principles, of proletarian will and of proletarian revolutionary action.”
The collection books contained the statement “Every dollar collected is a bullet fired into the boss class.”
The membership and collection books had been sent to Herndon from the main office of the party in New York for use by him, and he had been using them in securing members and in collecting dues and contributions. With the exception of two or three papers prepared by him and heretofore mentioned, the literature which he was carrying under his arm when arrested had been sent to him from the same office, together with many pamphlets, books and other publications, for use and distribution by him in his work as an organizer. The literature which he had with him when arrested was produced in evidence and will now be described, chiefly by titles and extracts (italics supplied).
“Appeal to Southern Young Workers.”
“The Young Communist League is the champion not only of the young white workers but especially of the doubly oppressed negro young workers. The Young Communist League fights against the whole system of race discrimination and stands for full racial, political, economic and social equality of all workers. . . .
“The chief aim of the Young Communist League is to organize the young workers for a struggle against the bosses and against the whole profit system.
“The Young Communist League fights for:
“Full political, social and racial equality for the negro workers.
“Against bosses’ wars! Defend the Soviet Union!
“Smash the National Guard, the C. M. T. C. and R. O. T. C.”
“Life and Struggles of Negro Toilers.”
“In no other so-called civilized country in the world are human beings treated as badly as these 15 million negroes [in the United States]. They live under a perpetual regime of white terror. . . . They are absolutely at the mercy of every fiendish mob incited by the white landlords and capitalists.”
“Communism and Christianism.”
“Banish the Gods from the Skies and Capitalists from the Earth and make the World safe for Industrial Communism.
“The trouble with every reformatory socialism of modern times is, that it undertakes the impossibility of changing the fruit of the capitalist state into that of the communistic one, without changing the political organism; but to do that is as impossible as to gather grapes from thorns or figs from thistles. Hence an uprooting and replanting are necessary (a revolution not a-rejormation) which will give the world a new tree of state.
“Capitalism no longer grows the fruits (foods, clothes and houses) which are necessary to the sustenance of all the world. Hence it must be dug up by the roots in order that a tree which is so organized that it will bear these necessities for the whole world may be planted in its place.
“The people of Russia have accomplished this uprooting and replanting (this revolution) in the case of their state, and those of every nation are destined to do the same in one way or another, each according to its historical and economic development, some with much violence, most, I hope, with but little.”
“Communist Position on the Negro Question.”
This is a booklet of several pages and bears on the front of its cover a map of the United States showing a dark belt stretching across considerable portions of Georgia and eight other southern states. Parts of the text are here copied.
“The slogan of the right of self-determination occupies the central place in the liberation struggle of the Negro population in the Black Belt against the yoke of American imperialism. But this slogan, as we see it, must be carried out only in connection with two other basic demands. Thus, there are three basic demands to be kept in mind in the Black Belt, namely, the following:
“(a) Confiscation of the landed property of the white landowners and capitalists for the benefit of the negro farmers. The land property in the hands of the white American exploiters constitutes the most important material basis of the entire system of national oppression and serfdom of the Negroes in the Black Belt. More than three-quarters of all Negro farmers here are bound in actual serfdom to the farms and plantations of the white exploiters by the feudal system of ‘share cropping.’
“Without this revolutionary measure, without the agrarian revolution, the right of self-determination of the Negro population would be only a Utopia or, at best, would remain only on paper without changing in any way the actual enslavement.
“(b) Establishment of the State Unity of the Black Belt. At the present time this Negro zone — precisely for the purpose of facilitating national oppression — is artificially split up and divided into a number of various states which include distant localities having a majority of white population. If the right of self-determination of the Negroes is to be put into force, it is necessary wherever possible to bring together into one governmental unit all districts of the South where the majority of the settled population consists of negroes. Within the limits of this state there will of course remain a fairly significant white minority which must submit to the right of self-determination of the negro majority. . . .
“(c) Right of Self-Determination. This means complete and unlimited right of the negro majority to exercise governmental authority in the entire territory of the Black Belt, as well as to decide upon the relations between their territory and other nations, particularly the United States.”
“Even if the situation does not yet warrant the raising of the question of uprising, one should not limit oneself at present to propaganda for the demand, ‘Right to Self-Determination/ but should organize mass actions, such as demonstrations, strikes, tax boycott movements, etc.”
“A direct question of power is also the demand of confiscation of the land of the white exploiters in the South, as well as the demand of the negroes that the entire Black Belt be amalgamated into a State unit.
“Hereby, every single fundamental demand of the liberation struggle of the negroes in the Black Belt is such that — if once thoroughly understood by the negro masses and adopted as their slogan — it will lead them into the struggle for the overthrow of the power of the ruling bourgeoisie, which is impossible without such revolutionary struggle. One cannot deny that it is just possible for the negro population of the Black Belt to win the right to self-determination during capitalism; but it is perfectly clear and indubitable that this is possible only through successful revolutionary struggle for power against the American bourgeoisie, through wresting the negroes’ right of self-determination from American imperialism. Thus, the slogan of right to self-determination is a real slogan of National Rebellion which, to be considered as such, need not be supplemented by proclaiming struggle for the complete separation of the negro zone, at least not at present.
“(d) Communists must fight in the forefront of the national liberation movement and must do their utmost for the progress of this mass movement and its revolutionization. Negro Communists must clearly dissociate themselves from all bourgeois currents in the negro movement, must indefatigably oppose the spread of the influence of the bourgeois groups on the working negroes.”
“Their constant call to the negro masses must be: Revolutionary struggle against the ruling white bourgeoisie, through a fighting alliance with the revolutionary white proletariat!'
“We are Bolsheviks, members of a fighting Party of the working class, who know that the only road to the revolutionary overthrow of capitalism and the establishment of Communism is through welding together the iron unity of class idealogy which penetrates into our ranks, as the prerequisite to the effective struggle against the class enemy physically.”
There was no direct testimony that Herndon distributed the literature just described. No member of the Communist Party came forward to tell what he did in their meetings or in inducing them to become members. Nor does this seem strange when regard is had to the obligation taken by members and to the discipline imposed. Nevertheless there was evidence from which distribution by him reasonably could be inferred. It was shown that he was an active member, was sent to Atlanta as a paid organizer, and was subject to party discipline; also that he received the literature for distribution in the course of his work and had copies of it, together with current membership and collection books, under his arm when he was arrested; and further that he had been soliciting and securing members, which was part of the work in which the literature was to be used. He had declared his “adherence to the program and statutes” of the party and had taken like declarations from those whom he secured as members; and this tended strongly to show not only that he understood the party program and statutes as outlined ip the literature but also that he brought them to the attention of others whom he secured as members. Besides, at the trial he made an extended statement to the court and jury in his defense, but did not refer in any wise to the literature or deny that he had been using or distributing it. Thus there was in the evidence not merely some but adequate and undisputed basis for inferring that he had been using the literature for the purposes for which he received it. Evidently, and with reason, the jury drew this inference.
It should not be overlooked that Herndon was a negro member and organizer in the Communist Party and was engaged actively in inducing others, chiefly southern negroes, to become members of the party and participate in effecting its purposes and program. The literature placed in his hands by the party for that purpose was particularly adapted to appeal to negroes in that section, for it pictured their condition as an unhappy one resulting from asserted wrongs on the part of white landlords and employers, and sought by alluring statements of resulting advantages to induce them to join in an effort to carry into effect the measures which the literature proposed. These measures included a revolutionary uprooting of the existing capitalist state, as it was termed; confiscation of the landed property of white landowners and capitalists for the benefit of negroes; establishment in the black belt of an independent State, possibly followed by secession from the United States; organization of mass demonstrations, strikes and tax boycotts in aid of this measure; adoption of a fighting alliance with the revolutionary white proletariat; revolutionary overthrow of capitalism and establishment of Communism through effective physical struggles against the class enemy. Proposing these measures was nothing short of advising a resort to force and violence, for all know that such measures could not be effected otherwise. Not only so, but the literature makes such repelling use of the terms “revolution,” “national rebellion,” “revolutionary struggle,” “revolutionary overthrow,” “effective physical struggle,” “smash the National Guard,” “mass strikes,” and “violence,” as to leave no doubt that the use of force in an unlawful sense is intended.
The purpose and probable effect of such literature, when under consideration in a prosecution like that against Herndon, are to be tested and determined with appropriate regard to the capacity and circumstances of those who are sought to be influenced. In this instance the literature is largely directed to a people whose past and present circumstances would lead them to give unusual credence to its inflaming and inciting features.
And so it is that examination and consideration of the evidence convince me that the supreme court of the State applied the statute, conformably to its opinion, as making criminal an attempt to induce and incite others to join in combined forcible resistance to the lawful authority of the State.
That the constitutional guaranty of freedom of speech and assembly does not shield or afford protection for acts of intentional incitement to forcible resistance to the lawful authority of a State is settled by repeated decisions of this Court; and the Georgia decisions are to the same effect.
Under the statute as construed and applied it is essential that the accused intended to induce combined forcible resistance. The presence of the intent aggravates the inducement and brings it more certainly within the power of the State to denounce it as a crime than otherwise it would be. The supreme court of the State in both of its opinions was dealing with a statute and a charge in which the intent of the accused was an element of the offense. In the original opinion the court incautiously said “it would be sufficient that he intended it [the combined and forcible resistance] to happen at any time.” In its opinion on rehearing it said the phrase “at any time” had not been intended to mean any time in the indefinite future; and by way of avoiding such a meaning the court changed that part of the original opinion by making it read “at any time within which he might reasonably expect his influence to continue to be directly operative in causing such action by those whom he sought to induce.” I do not perceive that this puts the standard of guilt at large or renders it inadmissibly vague. The accused must intend that-combined forcible resistance shall proximately result from his act of inducement. There is no uncertainty in that. The intended point of time must be within the period during which he “might reasonably expect” his inducement to remain directly operative in causing the combined forcible resistance. The words “might reasonably expect” have as much precision as is admissible in such a matter, are not difficult to understand, and conform to decisions heretofore given by this Court in respect of related questions. I therefore am of opinion that there is no objectionable uncertainty about the standard of guilt and that the statute does not in that regard infringe the constitutional guaranty of due process of law.
Believing that the statute under which the conviction was had is not subject to the objections leveled against it, I think the judgment of the supreme court of the State denying the petition for habeas corpus should be affirmed.
Mr. Justice McReynolds, Mr. Justice Sutherland and Mr. Justice Butler join in this dissent.
Georgia Code 1933. §§ 26-901, 26-902, 26-903.
Carr v. State, 176 Ga. 747; 169 S. E. 201; Herndon v. State, 178 Ga. 832, 855; 174 S. E. 597.
Herndon v. State, 178 Ga. 832, 855, 867; 174 S. E. 597.
Herndon v. State, 179 Ga. 597, 599; 176 S. E. 620.
Lowry v. Herndon, 182 Ga. 582; 186 S. E. 429.
See Georgia Code 1933, § 38-415.
Burns v. United States, 274 U. S. 328, 335.
Gitlow v. New York, 268 U. S. 652, 666, et seq.; Whitney v. California, 274 U. S. 357, 371; Fiske v. Kansas, 274 U. S. 380, 385; Stromberg v. California, 283 U. S. 359, 368; Near v. Minnesota, 283 U. S. 697, 708.
Carr v. State, 176 Ga. 55; 166 S. E. 827, 167 S. E. 103; Carr v. State, 176 Ga. 747; 169 S. E. 201.
Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 108-111; Nash v. United States, 229 U. S. 373, 376-378.

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