337 U.S. 1 (1949)
On February 7, 1946, Albert Terminiello delivered a speech in the auditorium of the West End Women's Club in Chicago to an audience of about eight hundred people under the auspices of the Christian Veterans of America.1 An overflow crowd of about one thousand persons gathered outside the auditorium to protest the meeting.2 The crowd was angry and turbulent, with many making threats against the speaker, shouting, and attempting to force their way into the building while the police proved unable to maintain order.3
Terminiello was arrested and charged under a Chicago ordinance making it unlawful to make any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace.4 At trial the court instructed the jury that misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, and the jury returned a verdict of guilty resulting in a fine of one hundred dollars.5
The Illinois Appellate Court and the Illinois Supreme Court both affirmed the conviction.6 The Supreme Court of the United States granted certiorari to review the case.7
Whether the Chicago ordinance as construed by the trial court to permit conviction for speech that stirs the public to anger, invites dispute, or brings about a condition of unrest is unconstitutionally broad?8
The First Amendment protects speech that stirs the public to anger, invites dispute, or brings about a condition of unrest unless shown likely to produce a clear and present danger of a serious substantive evil rising far above public inconvenience, annoyance, or unrest. An ordinance permitting conviction for such protected speech is invalid on its face.9
Yes. The ordinance as construed by the trial court allowed conviction if speech stirred the public to anger, invited dispute, or brought about a condition of unrest.10 This construction sweeps in speech that the First Amendment protects, as provocative speech remains safeguarded.11
Terminiello delivered a speech condemning political and racial groups.12 He spoke to an audience of about eight hundred inside the auditorium.13 An angry crowd of about one thousand gathered outside.14 The jury instruction permitted conviction without any finding of clear and present danger beyond unrest or disturbance.15 The ordinance therefore reaches constitutionally protected expression and cannot stand as applied here.16
The Court has repeatedly held that speech inducing unrest or anger serves the high purpose of free debate and cannot be punished absent the requisite danger.17
The Chicago ordinance as construed by the trial court is unconstitutionally broad.18
Related opinions on this issue
Joined by Mr. Justice Frankfurter, Mr. Justice Jackson And Mr. Justice Reed
Chief Justice Vinson dissented on the ground that the Court reached an issue never raised below or in the petition for certiorari.19 He argued that the Illinois courts had construed the ordinance as punishing only fighting words and that reversal based on an unnoticed jury instruction violated principles of review of state court decisions.20 Vinson emphasized that the offending sentence went undetected by counsel at trial and through two Illinois appellate tribunals, making the reversal improper under established rules limiting review to claims properly presented.21
Joined by Mr. Justice Jackson And Mr. Justice Burton
Justice Frankfurter dissented on the ground that the Court reversed on a point explicitly disclaimed by petitioner at the bar and never urged in the Illinois courts or in the petition for certiorari.22 He stressed that the Stromberg precedent does not authorize searching the record for an unraised error and that the delicate relation between federal and state courts requires a federal claim to have been denied by the state court before review.23 Frankfurter noted the case involved only a one-hundred-dollar fine in a civil proceeding under Illinois law.24
Whether a general verdict of guilty under the ordinance can stand when the jury instructions included grounds that encompass constitutionally protected speech?25
When a general verdict rests on instructions that include both valid and invalid grounds, and one ground is unconstitutional, the verdict cannot stand because it is impossible to determine that the jury did not rely on the invalid portion.26
No. The general verdict cannot stand because the instructions permitted conviction on unconstitutional grounds.27 The trial court told the jury that misbehavior constitutes a breach of the peace if it stirs the public to anger, invites dispute, or brings about a condition of unrest.28
Terminiello was convicted after a speech that the crowd outside protested with threats and missiles.29 The verdict may have rested solely on the protected elements of stirring anger or inviting dispute rather than any clear and present danger.30 The principle from Stromberg controls because the verdict was general and the unconstitutional clauses were submitted to the jury.31 The Court cannot assume the jury convicted only on valid grounds when the record does not reveal the basis of the decision.32
The general verdict of guilty cannot stand because the jury instructions included unconstitutional grounds.33
Related opinions on this issue
Joined by Mr. Justice Burton
Justice Jackson dissented on the ground that the speech created a clear and present danger of riot and disorder in the specific circumstances shown by the evidence.34 He argued that the trial judge properly instructed the jury on the concrete behavior and consequences disclosed by the record, including a surging mob hurling epithets and breaking windows, and that the Court had abandoned the Schenck clear and present danger test.35 Jackson emphasized that local authorities must retain power to prevent the streets from becoming battlegrounds between organized revolutionary groups.36
Whether the absence of an objection to the jury instructions at trial precludes Supreme Court review of the constitutional validity of the ordinance as construed?37
The absence of an objection to jury instructions does not preclude Supreme Court review when the constitutional challenge to the ordinance as construed was raised and decided by the state courts, because the gloss placed on the ordinance by the instructions is binding and the attack on the statute reaches each of its parts.38
No. The absence of an objection does not preclude review.39 Petitioner consistently challenged the constitutionality of the ordinance as applied to his conduct, and the Illinois courts sustained the ordinance over that objection.40
Terminiello maintained at all times that the ordinance violated his right of free speech.41 The Illinois Supreme Court affirmed. The Supreme Court granted certiorari on the important question presented.42 The Stromberg principle applies even without an exception to the charge because the verdict was general and one part of the ordinance as construed was unconstitutional.43 The Court can take the statute as the state courts read it, and the pinch of the statute lies in its application to the speech delivered on February 7, 1946.44
The absence of an objection to the jury instructions at trial does not preclude Supreme Court review.45