343 U.S. 250 (1952)
Joseph Beauharnais was president of the White Circle League of America.1
In January 1950 he arranged for the printing of several thousand copies of a leaflet in the form of a petition to the Mayor and City Council of Chicago.2 The leaflet called for segregation of the white and Negro races.3 It stated that the aggressions, robberies, rapes, and other acts of violence by Negroes were causing crimes that made it unsafe for white people to walk the streets.4 The leaflet also solicited membership in the White Circle League.5
On January 6, 1950, Beauharnais distributed bundles of the leaflets to volunteers at a meeting.6 He provided detailed instructions for street-corner distribution the next day.7 On January 7 the leaflets were in fact handed out on downtown Chicago corners.8 Beauharnais was arrested after the distribution began.9 He was charged with violating section 224a of the Illinois Criminal Code.10 The statute makes it unlawful to publish or exhibit in any public place any lithograph that portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed, or religion and thereby exposes such citizens to contempt, derision, or obloquy or is productive of breach of the peace or riots.11
At trial the evidence that Beauharnais had caused the leaflets to be published and distributed was undisputed.12 The court instructed the jury that it must return a guilty verdict upon a finding that he had manufactured, sold, offered for sale, advertised, published, presented, or exhibited the lithograph.13 The court refused a requested instruction requiring proof of a clear and present danger of serious substantive evil.14 The jury convicted Beauharnais.15 The judge imposed a fine of two hundred dollars.16 The Illinois Supreme Court affirmed the conviction.17 It held that the statute was a valid exercise of the state's police power.18 The United States Supreme Court granted certiorari.19
Whether section 224a of the Illinois Criminal Code violates the Due Process Clause of the Fourteenth Amendment by punishing the publication of materials that portray depravity, criminality, or lack of virtue in a class of citizens of any race, color, creed, or religion?20
Yes. The Court applied the rule that libelous utterances fall outside constitutional protection to the facts of Beauharnais's leaflet, which portrayed Negroes as committing aggressions, robberies, rapes, and other acts of violence, thereby exposing them to contempt and derision.23 Illinois could reasonably conclude that such publications tend to cause breaches of the peace, as evidenced by the state's history of racial tensions from the Lovejoy murder to the Cicero riots.24 The conviction based on the undisputed distribution of the leaflet therefore did not violate due process.25
Section 224a does not violate the Due Process Clause of the Fourteenth Amendment.26
Related opinions on this issue
Joined by Justice Douglas
Justice Black dissented on the ground that the conviction violates the First and Fourteenth Amendments.27 The statute is a clear example of a prior restraint on speech and press.28 The pamphlet is political speech attempting to petition the government for a change in policy regarding race relations.29
The breach of the peace justification has been used too often to suppress unpopular views.30 The proper response to offensive speech is more speech, not censorship.31 He would reverse the conviction.32
Justice Douglas joined in the dissent of Justice Black.33 The First Amendment does not permit the punishment of speech merely because it is critical of a racial or religious group.34 The marketplace of ideas must remain free even for ideas we hate.35
The Illinois statute is a form of group libel law that has no place in our constitutional system.36 The danger of such laws is that they allow majorities to silence minorities.37 The pamphlet here may be crude, but it is part of the political process.38
The proper remedy for bad speech is better speech and education, not fines and imprisonment.39 He would hold the statute unconstitutional on its face.40
Whether the Illinois statute is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment?41
The statute is not unconstitutionally vague because it is phrased in terms that have well-understood meanings at common law.42 The words depravity, criminality, unchastity, or lack of virtue have been part of the law of libel for centuries.43 The requirement that the publication expose the group to contempt, derision, or obloquy provides sufficient standards to guide conduct.44
No. The words in section 224a have long-standing meanings in the law of libel, and the Illinois Supreme Court construed the statute as a form of criminal libel law, providing sufficient standards.45 Applied to the leaflet's specific claims about Negro criminality, the statute gave adequate notice to Beauharnais of the prohibited conduct.46
The statute is not unconstitutionally vague.47
Related opinions on this issue
Joined by Justice Douglas
Justice Reed dissented on the ground that the statute is unconstitutionally vague.48 Terms like virtue, derision, and obloquy have neither general nor special meanings well enough known to apprise those within their reach as to limitations on speech.49 Philosophers and poets have sought to expound the meaning of virtue, but each teaches his own conception.50
The tests of the Puritan or the Cavalier, the Christian or non-Christian, cannot be applied by a jury or judge.51 These words permit within their scope the punishment of incidents secured by the guarantee of free speech.52 The conviction should be reversed.53
Whether the Illinois statute abridges the liberty of speech and of the press guaranteed by the Fourteenth Amendment?54
No. The leaflet constituted libelous speech not protected by the First Amendment as incorporated by the Fourteenth Amendment.58 The state's interest in preventing racial violence justified the restriction on Beauharnais's distribution of the petition calling for segregation.59 The Court found no warrant in the Constitution for denying Illinois the power to pass the law.60
The statute does not abridge the liberty of speech and of the press.61
Related opinions on this issue
Justice Jackson dissented on the ground that the Fourteenth Amendment does not incorporate the First Amendment to impose identical restrictions on the states.62 The history of criminal libel in America convinces him that the powers of Congress and of the States over this subject are not of the same dimensions. State criminal libel laws are consistent with the concept of ordered liberty when applied with safeguards evolved to prevent their invasion of freedom of expression.63
Such safeguards include allowing truth as a defense and jury determination of the libelous character.64 The Illinois statute as applied dispensed with accepted safeguards for the accused.65 The trial court precluded the effort to justify statements by proving their truth.66
Jackson would reverse the conviction.67