Samuels v. Mackell/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

The same New York statutes on anarchy that were sustained in Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 are involved in these cases. It was in that case that Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, said in dissent:

'It is said that this manifesto was more than a theory, that     it was an incitement. Every idea is an incitement. It offers     itself for belief and if believed it is acted on unless some      other belief outweighs it or some failure of energy stifles      the movement at its birth. The only difference between the     expression of an opinion and an incitement in the narrower      sense is the speaker's enthusiasm for the result. Eloquence     may set fire to reason. But whatever may be thought of the     redundant discourse before us it had no chance of starting a      present conflagration. If in the long run the beliefs     expressed in proletarian dictatorship are destined to be      accepted by the dominant forces of the community, the only      meaning of free speech is that they should be given their      chance and have their way.'

In Gitlow the only overt acts were advocacy of overthrow and publication of the writings that contained the advocacy. Id., at 655, 45 S.Ct., at 626. Gitlow and its progeny, including Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, went into the discard with our decision in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430. In that case the indictment charged advocating terrorism 'by word of mouth' as a method of political reform and assembly for the purpose of such advocacy. We held that neither advocacy nor assembly in order to advocate political action may be made punishable.

Brandenburg, however, is of no help to these appellants. For while some of the counts embrace only advocacy or acts which fall within its penumbra, still others are in the field of activities far removed from the protection of the First Amendment. There is a question concerning some of the overt acts-whether, as I asked in my dissent in Epton v. New York, 390 U.S. 29, 30, 88 S.Ct. 824, 825, 19 L.Ed.2d 808, a constitutionally protected right such as speech or assembly may be used as an overt act in furtherance of a conspiracy. But other overt acts relate to the acquisition of weapons, gunpowder, and the like, and the storing of gasoline to start fires. Persuasion by such means plainly has no First Amendment protection.

It therefore cannot be said that the cases against Samuels and Fernandez are palpably unconstitutional. It is for the state courts by sifting out the chaff from the charges through motions to strike, instructions to the jury, and other procedural devices to preserve such First Amendment rights as may be involved here. Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of 'advocacy.'

Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, concurring in the result.

I agree that the judgment of the District Court should be affirmed. All the appellants had been indicted for violation of the New York Criminal Anarchy Law before their suit in federal court was filed. They have not alleged facts amounting to bad-faith harassment. Therefore, neither a declaratory judgment nor an injunction would be proper. Perez v. Ledesma, 401 U.S. 82, p. 93, 91 S.Ct. 674, p. 681, 27 L.Ed.2d 701. (Separate opinion of Brennan, J.).