State v. Sinchuk , 96 Conn. 605 ( 1921 )

This appeal involves questions of highest importance which justify a statement of the grounds of this dissent and of my view upon these questions.

I assume that the information charges three offenses: publicly exhibiting or advertising (1) certain disloyal, scurrilous or abusive matter concerning the government of the United States and its flag; (2) certain matter which was intended to bring them into contempt; (3) certain matter which creates or fosters opposition to organized government.

The matter thus generally characterized is not set forth in the information, either in terms or in substance. The court has no means of ascertaining whether, on its face, the matter is any of the things the State charges. Under our law the accused must be informed of the nature of the crime with which he is charged. Criminal procedure of universal acceptance requires that the information for criminal libel should set forth the charge, either in the terms made, or so fully that, by reference, its terms can be wholly known. Wharton's Criminal Law (Vol. 3, 11th Ed.) § 1982, says: "The alleged libelous matter, also, must be set out accurately, any variance being fatal." Section 1983: "It is enough now to say that if the indictment does not on its face profess to set forth an accurate copy of the alleged libel in words and figures, it will be held insufficient on demurrer, or in arrest of judgment." Wharton's Criminal Procedure (Vol. 2, 10th Ed.) § 921, says: "An indictment or information alleging libelous matter should set it outin haec verba, a mere statement as to the meaning and effect of the words being insufficient." Various authorities are cited in support of this principle of criminal procedure. Other text-books make a like statement. 17 Rawle C. L. § 228, p. 465; Newell on Slander Libel (3d Ed.) pp. 1160, 1161. In reported cases of criminal libel, we find the libel set forth in the information. State v. McKee, 73 Conn. 18,46 A. 409, is not in conflict. There the information, which was sustained, charged the accused with having in his possession, with intent to sell, a paper devoted to criminal news, and described the issue of the paper so that it could be identified. The practical objection to incorporating the entire newspaper as a part of the information led to the ruling made.

The parties herein, by counsel, stipulated "that no question shall be raised upon appeal by the defendants based upon any informality in the information, or upon any defect therein, because of the failure to incorporate in the information specific quotations from the matter complained of." My brethren assume that this stipulation of counsel removes this question from the case. I do not think it should be regarded as doing this. What is there in the stipulation which would compel the accused to plead guilty to this charge after the judgment herein? An agreement not to press a point upon an appeal is far from an agreement to plead guilty after the appeal is determined. It is true that counsel for the defendants say in their brief that "the defendants have agreed to submit themselves for punishment if this statute is held valid," but such agreement is no part of the stipulation of record. Again, what is there in the stipulation which prevents these defendants from urging this point upon a motion in arrest? What is really determined by the majority opinion? Only this, that it is possible to conceive of matter which these defendants may have published which would offend this statute. But what that matter is which is within the statute, the opinion cannot name. One judge hereafter may have one view, another another view. The decision does not make for certainty in the law, but the reverse; and it may well be that the justices who concur had different matter in mind as constituting the charge. Other reasons suggest themselves, but these seem to be sufficient reasons why the court should refuse to regard this stipulation, and should determine the first and second grounds of demurrer — that the information is insufficient and does not state facts constituting an offense — to be well taken. When we consider the situation of these defendants — aliens — whose counsel have stipulated away their fundamental right to have the charge against them set out with reasonable certainty, and that this stipulation may be construed as their agreement that they have been guilty of inciting violence, murder and revolution against the United States, with the intention of subverting its government, we may well stop to ask whether intelligent aliens, understanding their rights and the penalty of their agreement, would ever have made the stipulation counsel have made for them.

A court should be most careful to see that the rights of these aliens under our law are fully protected, and if there is a reasonable possibility that they may not have fully understood the effect of their stipulation, and that it does deprive them of a right which is vital to a fair trial and a fair consideration of their case, the court ought not to permit the action of counsel, or their action upon the advice of counsel, to prevent a consideration of their cause without this elementary safeguard.

As we examine the nature of these charges it will become more apparent that the court ought not to determine the grave questions raised on this appeal without having before it the matter charged to have been published. I agree that what is disloyal, scurrilous or abusive matter concerning the government of the United States and its flag, and whether matter was intended to bring these into contempt, can be ascertained by our courts by the application of the definitions and principals known to our common law, so that it cannot be said that this statute fixes no ascertainable standard of guilt. Nor do I think this statute oversteps the police power in depriving these defendants of liberty without due process of law, by penalizing expression without regard to harmful consequences. Publications which degrade or throw into contempt the government of our country, necessarily tend to incite and encourage breach of the peace. The constitutional guaranty of free speech gives to every person who comes within the United States the right to discuss publicly any subject, so long as its object and effect be not to disturb the peace of individuals or of families, the quiet of society, or the existence of government, Federal or State. "The liberty protected is not the right to perpetrate acts of licentiousness, or any act inconsistent with the peace or safety of the State. Freedom of speech and press does not include the abuse of the power of tongue or pen, any more than freedom of other action includes an injurious use of one's occupation, business or property."State v. McKee, 73 Conn. 18, 29, 46 A. 409. Any published matter which tends to degrade, vilify, or bring into contempt the government of the United States or its flag, is libelous, and libels of this nature are seditious and criminal. The law presumes harmful consequence may result from their use, for this is a natural consequence. Newell on Slander Libel (3d Ed.) § 1090; 2 Wharton's Criminal Procedure (10th Ed.) § 911.

Had the matter which the defendants are charged with publicly exhibiting been set up in the information, the demurrer would then have raised the question whether this matter fell within the characterization. No hard and fast rule can automatically determine this. The circumstances surrounding the matter and its nature, must in each case be considered in the light of the accepted legal definitions of these terms, where such exist, and, if they do not exist, then they must be considered by the exercise of a judgment formed after a consideration of applicable legal principles.

Aside from the objection that the matter which creates or fosters opposition to organized government, is not stated in the information, this particular count is bad for other reasons. It does not state whether the opposition created or fostered was by means of force or by means calculated to, that is, likely to, incite or encourage the use of force or a breach of the public peace, or whether it was a purely speculative discussion without relation to the accomplishment of evil purpose. The constitutional right of free speech does not give any one the right to create or foster opposition to the government of the United States, or of this State, by the advocacy of force or the incitement of means calculated to destroy or subvert or injure the government or the peace of the community. The majority opinion assumes that the charge is against the United States or this State. But specification three of this information is not personal to the United States or this State. The opposition charged is to all organized government. Such opposition may intend present danger to government, by inciting the use of force or of opinions, beliefs or arguments likely to subvert or injure government. If it be opposition of this kind which is created or fostered, our constitutional guaranty of free speech does not protect one in such form of opposition. But if it be a purely philosophical or speculative discussion of the condition of society without the restraints and burdens of any government, it cannot be said that this will be likely to subvert or injure government. Such discussion has no relation to any particular government. The Constitution of the United States, and our Bill of Rights, forbid the abridgment of freedom of speech and of the press, and their guaranties forever do away with some of the restraints and limitations to which this fundamental right had been subjected not so many years before these constitutional enactments. But the exercise of this vital adjunct of freedom does not countenance licentiousness of speech, nor seditious utterances; and such utterances are those which incite or encourage the use of force, or means which injure government or are likely to injure government. In passing upon an indictment under the Espionage Act (40 U.S. Stat. at Large, 217) for preventing recruiting by named illegal acts, the Supreme Court, by Mr. Justice Holmes, said: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Schenck v. United States, 249 U.S. 47,52, 39 Sup. Ct. 247. Publications inciting or encouraging revolution in another country, the subversion of its government, the murder of its rulers, or any evil to its government by the use of force, would clearly fall without the liberty of speech guaranteed by the Constitution; and so would publications which are likely to produce these effects. For these would be seditious libels and would properly subject their authors to criminal penalty. Whether language is or is not likely to produce such an effect, is the dividing line between what is and what is not seditious libel. While this determination is difficult, it is one to which courts are accustomed. A breach of the peace may occur by any act likely to produce violence. 1 Bishop, New Criminal Law, § 536. And a libel has been indictable, time out of mind, because it tends to produce violence. People v. Most, 171 N.Y. 423, 429,64 N.E. 175.

In determining whether a libel is likely to injure organized government, a court will be careful to be sure of its ground that danger clear and imminent is likely to result from the publication, since it must never forget that freedom of speech is an indispensable prop of our free government, and that "repression of full and free discussion is dangerous in any government resting upon the will of the people." Cooley's Constitutional Limitations (7th Ed.) p. 614. Whether the statement is seditious libel, we test by the question: "Is the language calculated to promote public disorder, or physical force or violence in a matter of State?" Odgers on Libel Slander (5th Ed.) p. 513.

No case and no authority, so far as we discover, goes so far as to penalize mere opinion concerning government or its institutions, without regard to evil consequences occurring or likely to occur. This we suppose to be the meaning of the Supreme Court of the United States when it says: "We understand the State court by implication, at least, to have read the statute as confined to encouraging an actual breach of the law. Therefore the argument that this Act is both an unjustifiable restriction of liberty and too vague for a criminal law must fail. It does not appear and is not likely that the statute will be construed to prevent publications merely because they tend to produce unfavorable opinions of a particular statute or of law in general." Fox v. Washington, 236 U.S. 273, 277,35 Sup. Ct. 383; Schenck v. United States, 249 U.S. 47,39 Sup. Ct. 247; State v. Tachin, 92 N.J.L. 269, 274,106 A. 145. Newell on Slander Libel (3d Ed.) § 1090, thus states the rule: "Mere theoretical discussions of abstract questions of political science, comparisons of various forms and systems of government, and controversies as to details of our own constitutional law, are clearly permissible."

The language of the statute before us is not limited to matter which incites or encourages, or which is likely to so incite or encourage, opposition to all organized government. It may include a philosophical or theoretical discussion, without regard to means or effect, which may remotely be held to incite or encourage such opposition. A statute cannot do this without violating the constitutional guaranties of free speech. The majority opinion does not construe this statute as one which is confined to the incitement or encouragement of force, or which is likely to produce this result. What it really decides is that aliens such as the accused have no right "to engage in scurrilous or anarchistic propaganda which has been declared by the General Assembly to be dangerous to the public welfare." It fails to discuss that phase of the right of free speech which is involved, and holds the statute good against aliens. I think the State has the right to prohibit the publication of matter which is disloyal, scurrilous or abusive concerning the government of the United States and its flag, or which is intended to bring them into contempt, whether it be published by a citizen or by an alien. Our treatment of this subject so far is equally applicable to citizen or alien. Our Bill of Rights, with few exceptions, and all of our fundamental constitutional guaranties, are for the protection of the alien as well as the citizen. I agree with my associates that §§ 5, 16 and 17 of our Bill of Rights are, by their terms, applicable to citizens alone. I also agree that the right to alter our form of government, as guaranteed by § 2, is the exclusive privilege of the citizen. Aside from these sections, our Bill of Rights protects aliens and citizens alike. I do not agree that § 6 of our Bill of Rights is confined to citizens. That section provides: "No law shall ever be passed to control or restrain the liberty of speech or of the press." While denying to aliens the protection of this section, my associates say: "We do not mean to say that aliens have no right of free speech." But the right of free speech which they accord the alien is a very limited one, unprotected by Constitution and restricted by judicial construction. I cannot believe that this position is sound. I cannot find the parallel between the slave and the alien, and so treat Jackson v. Bulloch, 12 Conn. 38, as controlling the judgment, as my associates do.

So far as the right of free speech is concerned, the distinction between the rights of citizen and alien does not exist, except as to the specific guaranties given to citizens alone. The Fourteenth Amendment was enacted "to secure equal rights to all persons."Ex parte Virginia, 100 U.S. 339, 347. And when it says: "Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," it included the alien within the term "any person." "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U.S. 356, 369,6 Sup. Ct. 1064; Truax v. Raich, 239 U.S. 33, 39,36 Sup. Ct. 7. We quote form a few of the many authorities: "The equal protection of the laws is due to aliens as to citizens." Cardozo, J., in People v.Crane, 214 N.Y. 154, 162, 108 N.E. 427. "An alien friend, however transient his presence may be, is entitled to a temporary protection, and owes in return a temporary allegiance." Fisher, Brown Co. v. Fielding,67 Conn. 91, 104, 34 A. 714. "These rights and privileges [of aliens] include both personal rights — such as the right to dwell safely in the country, the general right to engage in any lawful labor, trade, or business within the State, and the right of protection to person, reputation and other relative rights — and property rights. . . . In return for the protection given aliens they owe a temporary and local allegiance to the country in which they reside, which continues during the period of their residence." 2 Corpus Juris, 1046; 2 Cyc. 89.

That the Fourteenth Amendment guarantees freedom of speech, is unquestioned. But apart from this, Connecticut is ever bound to maintain a republican form of government. Beach v. Bradstreet, 85 Conn. 344, 349,82 A. 1030. And a republican form of government without the right of free speech, would be an anomaly. The statute in question, on its face, applies to "any person," be he citizen or alien; and the constitutional guaranty of free speech does not prevent any State penalizing seditious libel, whether committed by alien or citizen. Citizen or alien, who publicly exhibits matter which creates or fosters opposition to organized government by force, or is likely to produce force or disorder, will be guilty of a criminal or seditious libel. And if this statute were confined to this, it would not violate the right of free speech. But since it goes further, and penalizes all speculative or philosophical matter without regard to its actual or likely effect, it does in this respect violate the right of free speech which the Constitution of Connecticut and of the United States guarantees to alien and citizen alike.