VAN DEVANTER, J., dissenting. 301 U.S. effect in the future conduct of others. No reasonably ascertainable standard of guilt is prescribed. So vague and indeterminate are the boundaries thus set to the freedom of speech and assembly that the law necessarily violates the guarantees of liberty embodied in the Fourteenth Amendment. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. 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. 1 Sections 55, 56 and 57 of the Penal Code of Georgia 1 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 ' Georgia Code 1933. §§ 26-901, 26-902, 26-903. 242 VAN DEVANTER, J., dissenting. 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." 2 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 2 Carr v. State, 176 Ga. 747; 169 S. E. 201; Herndon v. State, 178 Ga. 832, 855; 174 S. E. 597. VAN DEVANTER, J., dissenting. 301 U.S. 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 incipiency 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.)3 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 'Herndon v. State, 178 Ga. 832, 855, 867; 174 S. E. 597. 4 * Herndon v. State, 179 Ga. 597, 599; 176 S. E. 620. 242 VAN DEVANTER, J., dissenting. 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 VAN DEVANTER, J., dissenting. 301 U.S. 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.5 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 Lowry v. Herndon, 182 Ga. 582; 186 S. E. 429. |