Epton v. New York/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I would hear argument in these cases, since I am of the opinion that all questions presented, including those under the first count of the indictment for conspiring to riot, present substantial federal questions.

In the first count, the State alleged the commission of 15 overt acts by Epton in furtherance of the alleged conspiracy to riot. The alleged acts consisted in part of speeches made by Epton and his participation in the preparation and distribution of certain leaflets. Such activities, of course, are normally given the protection of the First Amendment with exceptions not now necessary to state. See Yates v. United States, 354 U.S. 98, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Gitlow v. People of State of New York, 268 U.S. 652, 672, 45 S.Ct. 625, 69 L.Ed. 1138 (dissenting opinion); Abrams v. United States, 250 U.S. 616, 624, 40 S.Ct. 17, 63 L.Ed. 1173 (dissenting opinion); Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Chaplinksy v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Feiner v. People of State of New York, 340 U.S. 315, 329, 71 S.Ct. 303, 95 L.Ed. 267 (dissenting opinion).

Under New York law, a conviction for conspiracy requires both an agreement to commit an unlawful act and at least one overt act in furtherance of that agreement. Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected presents an important question. An argument can of course be made that overt acts are used only to demonstrate the existence of a conspiracy, and to draw reasonable inferences as to the intent of the alleged conspirator.

Although the Court has indicated that the overt act requirement of the treason clause ensures that 'thoughts and attitudes alone cannot make a treason' (Cramer v. United States, 325 U.S. 1, 29, 65 S.Ct. 918, 89 L.Ed. 1441), it has never decided whether activities protected by the First Amendment can constitute overt acts for purposes of a conviction for treason. The matter was adverted to in Cramer v. United States:

'Thus the crime of treason consists of two elements:     adherence to the enemy; and rendering him aid and comfort. A     citizen intellectually or emotionally may favor the enemy and      harbor sympathies or convictions disloyal to this country's      policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other     hand, a citizen may take actions which do aid and comfort the      enemy-making a speech critical of the government or opposing      its measures, profiteering, striking in defense plants or      essential work, and the hundred other things which impair our      cohesion and diminish our strength-but if there is no      adherence to the enemy in this, if there is no intent to      betray, there is no treason.' (Italics added.) Id., at 29, 65      S.Ct., at 932.

In the same case, the four dissenters noted that:

'It is plain * *  * that the requirement of an overt act is      designed to preclude punishment for treasonable plans or      schemes or hopes which have never moved out of the realm of      thought or speech.' Id., at 61, 65 S.Ct., at 947.

The lower federal courts have considered the question in a few cases, the most exhaustive treatment probably being found in Chandler v. United States, 171 F.2d 921 (C.A. 1st Cir. 1948). Treason, of course, is not the charge here. Yet the use of constitutionally protected activities to provide the overt acts for conspiracy convictions might well stifle dissent and cool the fervor of those with whom society does not agree at the moment. Society, like an ill person, often pretends it is well or tries to hide its sickness. From this perspective, First Amendment freedoms safeguard society from its own folly. As long as the exercise of those freedoms is within the protection of the First Amendment, the question is presented whether this Court should permit criminal convictions for conspiracy to stand, when they turn on that exercise.

The issue, then, is whether Epton's speeches and his participation in the preparation and distribution of leaflets can be used as overt acts in a conspiracy charge, without a requirement that they must first be found constitutionally unprotected.

Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, can be construed to permit constitutionally protected activities to be used as overt acts in criminal conspiracies. But there was a separate opinion in that case, written by my Brother BLACK, which I joined, saying in part:

'The only overt act which is now charged against these     defendants is that they went to a constitutionally protected      public assembly where they took part in lawful discussion of      public questions, and where neither they nor anyone else      advocated or suggested overthrow of the United States      Government.' Id., at 343, 77 S.Ct., at 1089.

The majority in the Yates case, however, went to some lengths in protecting First Amendment freedoms. There advocacy was the heart of the case, and the majority held that 'advocacy' to be an ingredient of a crime 'must be of action and not merely abstract doctrine,' id., at 325, 77 S.Ct., at 1080. The Court reversed the convictions because the instructions to the jury did not properly delineate that line of distinction. While the majority held that attending a meeting could be an overt act, id., at 334, 77 S.Ct., at 1085, it went on to hold that the line between constitutionally protected First Amendment rights and those that exceeded the limits must be carefully drawn in instructions to the jury. In the present cases, however, the trial court in its charge to the jury made no qualifications whatsoever as to the permissible range of the use of speech and publications as overt acts. There was no instruction whatsoever that the jury would first have to determine that the particular speech or the particular publication was not constitutionally protected. The principle of Yates was therefore disregarded.

Since in my opinion, none of Epton's convictions is free of doubt there is no basis for applying the rule that there is no occasion to review a conviction on one count of an indictment if the judgment on another count is valid and the sentences are concurrent. See Lanza v. State of New York, 370 U.S. 139, 146, 152, 82 S.Ct. 1218, 8 L.Ed.2d 384 (separate opinion of Mr. Justice BRENNAN); Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774; Whitfield v. State of Ohio, 297 U.S. 431, 438, 56 S.Ct. 532, 80 L.Ed. 778. Like my Brother STEWART, I believe that Epton's convictions for advocating criminal anarchy and conspiracy to advocate criminal anarchy should be reviewed by this Court to consider whether New York's anarchy statutes either on their face or as applied here pass beyond the pale of constitutionality. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. Accordingly, I would grant certiorari in No. 502, Misc., note probable jurisdiction in No. 771, Misc., and set the cases for oral argument.