dissents. The offense charged is a breach of the peace, or a diversion tending to a breach of the peace. As it is not defined by statute or ordinance we must look to the common law for its meaning. Breach of the peace is a generic term, including all violations of public peace or order, and acts tending to promote or excite others to breach of the peace. 8 Am. Jur., Breach of Peace, secs. 3 and 6; Words and Phrases, vol. 5, p. 763; St. Louis v. Slupsky, 254 Mo. 309; State v. Steger, 94 W. Va. 576. The acts must be public in character and such as actually tend to disturb the public peace and quiet. People v. Monnier, 280 N. Y. 77; People v. Perry, 265 N. Y. 362, 364-365; People v. Reid, 180 Misc. 289, 40 N. Y. S. (2d) 793; People v. McWilliams, 22 N. Y. S. (2d) 571. In the present case the speech of defendant must have been delivered in a public meeting or a public place to cause a breach of the peace. The courts have had no difficulty in determining what is a public meeting or place. In the case of City of Bloomington v. Richardson, 38 Ill. App. 60, 64, cited in the majority opinion, the court was considering a prosecution under an ordinance prohibiting a “public gathering or meeting” upon public streets or public grounds of the city with-, out a permit. It there said, as quoted in the majority opinion and in accordance with the established weight of authority, “that a private meeting may be held on a public place and a public meeting on a private place.” The court then gave an easily understood statement of the essentials of “public meetings” according to the common understanding. It said: “Whether a meeting is such (public) according to that understanding, we apprehend will depend primarily and essentially upon its intended composition, and generally, also, if not essentially, upon its object. It must be open to the general public; that is, to all who may have the opportunity and desire to attend it. To make the opportunity general, some notice of the time and place, intended and adapted to reach the public generally, must be given.” We found no case holding that a meeting attendance to which is restricted to invitation or selection is a public meeting, or a meeting rendering a place otherwise private a public place. In all cases where restricting of attendance to invitation has been considered, the meeting has been held not to be public and the place not a public place. In Terry v. State, 22 Tex. App. 679, the court, reversing a conviction of defendant, an invited guest at a wedding, for disturbing the peace by using loud, vociferous, vulgar and obscene language, cursing and swearing and displaying a knife, said, ‘ ‘ The fact that the private residence where the disturbance occurred was, at the time, a place where numerous persons had, upon invitation of the owner of the house, assembled on the occasion of a wedding, did not divest the residence of its private character, and deprive it of the protection afforded by the statute under which this conviction was obtained.” Likewise, in Austin v. State, 124 S. W. 636 (Tex. Crim. App.), the court reversed a conviction for cursing and swearing at a public place. The evidence showed that persons were at a private home by invitation to a party. There was some evidence that persons closely related to the host attended and that no one going there was forbidden to enter. The court said: “However, the issue was squarely raised that the persons present were there strictly by invitation, and that the house was not thrown open to the public generally. In this condition of the record we think the court should have given the special charge requested by counsel for the appellant, to the effect, in substance, that if they believed and found from the evidence that the place charged in the indictment was not a public place, but a private residence, and that those assembled at such place were there by invitation, then appellant would be entitled to an acquittal. This position seems well sustained by the recent case of Pugh v. State, 55 Tex. Cr. R. 462, 117 S. W. 817.” In State v. Rosenfield, 111 Minn. 301, in considering a statute prohibiting persons under 21 years to be and remain in a dance house, the court said: “It is true, as claimed by defendants’ counsel in this connection, that the statute does not define a dance house; but in the absence of such a definition the term must be construed in accordance with its ordinary usage. So construing it, a dance house is a place maintained for promiscuous and public dancing, the rule of admission to which is not based upon personal selection or invitation.” In Mehlos v. Milwaukee, 156 Wis. 591, 604, it was held proper to prescribe regulations for public dances as distinguished from dances on invitation. In Finnem v. State, 115 Ala. 106, cited by plaintiff, the court held that a field in the woods one-quarter to one-half mile from the public road, where 75 to 100 persons had assembled to witness a cock fight, was a public place. Among the facts making the field public was the fact that it was not necessary that people should have an invitation to be present, and that anyone who wished could be there. Coleman v. State, 20 Ala. 51, where the defendant was prosecuted for permitting card playing in his private room in violation of a statute prohibiting gambling in a public house and other public places, was cited. In that case the court said: “But we cannot hold that the assemblage of eight or ten persons at a private house or room, by invitation, and to which the public have not a right to go, for the purpose either of participating in the amusements going on, or partaking in the social enjoyments, will constitute such private house or room a public place, within the meaning of the act. If we were to hold this, we should be governed in our opinion by the. number of persons alone, in determining whether the place was public, without regard to any other consideration. This, I think, would be improper; but we must look to the character of the place, the manner of ingress to it, as well as the number of persons that are, or do assemble at it, in deciding whether it is public or private. Suppose an evening party given, at which a dozen or more were assembled by special invitation, but to which no one could go unless invited, without violating the rules of propriety, would this constitute the house a public place? We think not.”
Tested by these rules, the meeting at which defendant spoke was not a public meeting. There is no evidence that the auditorium had ever been used for meetings to which the public generally was admitted. There is no evidence that the sponsors of the meeting had ever held meetings open to the public generally. There is no evidence that any notice of the time and place intended and adapted to reaching the public generally'was given. No admission fee was charged. Admission was by card only. These cards, admitting bearer and one friend, were sent with an invitation stating that a few extra cards were inclosed and requesting the invitee to “make wise distribution of them.” Two witnesses for defendant who were taking-cards at the door testified that no one was admitted without a card, and there is no evidence to the contrary. These witnesses questioned some with cards who insisted on coming in, but do not say any of these were turned away. Many with cards were denied admission after the hall was filled. The meeting had all the characteristics of a private meeting and none of a public meeting, except that the subjects discussed were of public interest. The majority opinion holds that the meeting had the necessary characteristics of a public meeting. The tests adopted are not supported by precedent and no reasons are advanced to sustain them. They suggest pertinent queries necessarily answered in the negative and proving the fallacy of the position taken.
Is a meeting public or private as the attendance is large or small? Does a meeting intended to be private become public because the sponsors, underestimating the drawing power of the speaker, send out more invitations than are necessary to fill the hall and some of the invitees are denied admission? Is a meeting of a business association or other organization restricted to members and invited guests public because non-member guests are selected by the individual members and not by the executive heads? Is a school dance public when the boys choose the girls they .take, and does it become private only when the dance committee extends a personal invitation to each girl? Does the character of a meeting as public or private depend upon whether judges and jurors, with their different standards and prejudices, determine that the invitees were indiscriminately or discriminately selected?
There is no evidence that the cards were used indiscriminately either by those sending, out the invitations or by invitees who distributed the extra tickets and brought their friends to the meeting. The propriety of the invitation to Latimer can be questioned only in the light of subsequent events. As the invitation to him was sent to his old address of a year before, he must have been on the mailing list for some time. There is no evidence that up to the time when he left the meeting and swore to the complaint he was unfriendly in thought or deed to the defendant, to Smith, who signed the invitation, to the organization sponsoring the meeting or to the purposes of the meeting. He was invited as a friend. The fact that he came as an enemy and a spy raises no inference against the good faith or judgment of the persons sending the invitation. So far as the evidence shows, only four persons — Latimer, Mrs. Lipman, Karel, and an unidentified man who called one of the speakers a liar — out of 800 to 1,000 present were hostile to the defendant or unsympathetic with his views. These persons may have used cards received by Latimer. There is no evidence or legitimate inference that invitations or cards reached persons other than these four who were not “patriotic friends” of the meeting and those active in it. The presence of these unfriendly persons did not make the meeting public any more than the presence of employers’ spies at a meeting of a labor union would make such meeting public and deprive the union members of the right to characterize strike breakers as scabs, etc.
If we accept.the majority opinion holding that the meeting was public, it becomes necessary to determine when epithets, abusive and insulting language constitute a breach of the peace. It is universally held that such language does not constitute a breach of the peace unless it tends to incite immediate violence. People v. Most, 171 N. Y. 423, 427; St. Louis v. Slupsky, 254 Mo. 309, 318; State v. Steger, 94 W. Va. 576, 579. In Ware v. Loveridge, 75 Mich. 488, 492, the court said: ‘ ‘ There are, in some of the definitions, references to language tending to provoke a breach of the peace, and relator’s claim is based on this. But the.authorities have very plainly held that this covers nothing that is not meant and adapted to bring about violence directly. It is laid down, very positively, that insulting and abusive language does not come within the rule, but it must be threats of immediate violence, or challenges to fight, or incitements to immediate personal violence or mischief.” In Annotated Cases 1917 C (note p. 889) the author says: “But it seems that at common law language which was not threatening but merely abusive, vulgar or defamatory, did not constitute a breach of the peace, unless it was óf a nature designed to bring about an altercation.” In Cantwell v. Connecticut, 310 U. S. 296, 309, cited in the majority opinion, the court, in harmony with the foregoing-rule, said: “One may, however, be guilty of the offense (common law breach of the peace) if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but' examination discloses that, in practically all, the provocative-language which ioa,s held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer.” (.Italics ours.) Statutes on the subject are restricted to punishing abusive and insulting language uttered in a public place and in the presence and hearing of the person to which the language applies. Dyer v. State, 99 Ga. 20; Holmes v. State, 135 Ark. 187; State v. Hebert, 121 Kan. 329. The reason underlying these statutes is stated in Chaplinsky v. New Hampshire, 315 U. S. 568. The court had under consideration a statute providing, “No person shall address any offensive, derisive or annoying word to any other person ivho is laivfully in any street or other public place, nor call him by any offensive or derisive name,” etc. (Italics ours.) The court quoted from an opinion of the highest court of New Hampshire holding the act constitutional and saying that the purpose of the statute was to preserve the public peace, no words being “forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”
“The word ‘offensive’ is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker including ‘classical fighting words,’ words in a current useless ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.” The Supreme Court of the United States likewise held the act constitutional, saying: “It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.” Consistently with the rule announced in these cases, the court in Commonwealth v. Redshaw, 12 Pa. Co. Ct. 91, draws a distinction between statements made to members of the speaker’s group and those made publicly in the presence and hearing of the opposition. At a time of great public excitement arising out of labor troubles defendant called men on the public street “scabs,” — a fighting word in any labor controversy. The court said: “Where such a state of affairs exists 'it would not be disorderly conduct for the men of .either party, among their own friends and in a reasonable manner, to express their opinions of the men belonging to the opposite party. But for a man of one party to intentionally apply an offensive epithet to a number of men of the other party as they were passing along the public highway, must of necessity tend to create a tumult and provoke a conflict.”
Defendant spoke when the building was surrounded by a belligerent, noisy mob, at least as large as the audience in the hall, seeking by mob violence and threats to deny to those in the hall the constitntional right of peaceable assembly and freedom of speech. His speech must be divided into two parts: the first, or extemporaneous part, in which epithets and abusive and insulting language were directed to the mob outside and such members of the mob as the defendant supposed had gotten into the hall by mistake; and the second, or main speech, which was anti-New Deal, antiCómmunistic and anti-Jewish, at least as to some Jews —designated as criminal, atheistic, Communistic or Zionistic Jews, but not American Jews. Plaintiff introduced in evidence a transcript of the speech as taken by a court reporter of 17 years’ experience in reporting trials, conventions and meetings. By agreement of counsel the transcript as corrected was accepted as the speech made by defendant, and plaintiff’s argument here is based on the transcript, which shows that in speaking of the mob defendant used the terms “scum” and “slimy scum.” To these epithets Mrs. Lipman, wife of a director of the Chicago Civil Liberties Committee, of which Latimer is executive secretary, attempts to add, “skunks of Jews.” As she admitted on direct and cross-examination that she had heard defendant make a later speech and had the two speeches confused, her testimony as to what the speaker said has no probative value.
The terms “scum,” “slimy scum,” and “skunks of Jews,” are epithets, abusive and insulting terms. They are not in any proper sense communication of information or opinion safeguarded by the Constitution. Cantwell v. Connecticut, supra, pp. 309-310. When publicly made, as shown by the authorities heretofore cited, they constitute a breach of the peace only when addressed to and within the hearing of the person or persons to whom they are applied because they are words plainly likely to cause a breach of the peace by the addressee in resentment or retaliation. If none of the persons of whom the words were spoken was present and heard the words uttered, there is no breach of the peace. The burden of proving that members of the mob referred to as “scum,” “slimy scum,” and “skunks of Jews” were present and heard the words uttered concerning themselves, was upon plaintiff. The only possible basis for a claim that some of the mob gained admission is the statement of defendant in his speech that he supposed some had gotten into the hall by mistake, and a later reference to “scum” in the hall by mistake, based upon that supposition. No fact in evidence tends to support the claim that members of the mob got into the hall. The three witnesses for plaintiff deny any connection with the mob. It is not shown that the man who called one of the speakers a liar had any connection with the mob, and it is uncertain whether he was present when defendant spoke. The only person of the Jewish race present was Karel, a witness for plaintiff. None of the words spoken applied to him and he did not take them as applying to himself. No one in the audience showed any resentment, indignation or inclination to fight or breach the peace because of these words. The only evidence as to the reaction of the audience to them is the testimony of Latimer. He testified on direct examination that when reference was made to the mob outside and defendant called them “scum,” “slimy scum,” “skunks,” etc., the audience shouted and cried, “Tell them Father,” or, “That is right.” This reaction is not indicative of incitement to immediate violence, necessary to make spoken words a breach of the peace. The words were not uttered at a public meeting or in a public place, or in the presence or hearing of any person to whom they were applied. They did not, and under the circumstances of the time and place when and where they were uttered were not calculated to, excite immediate violence.
The remainder of the speech — a hitter denunciation of New Dealers, Communists and Jews, whom it linked together — is protected by the constitutional guarantees of communication of information and opinion. There was little if. anything new in it. It did not cause or tend to cause a breach of the peace. The demonstrations- of the audience, with the possible exception of the man who may have called defendant a liar, were in hearty approval of what defendant said. One witness for defendant says that the epithet “ God damned liar” was uttered when defendant was speaking. Two witnesses for defendant say that it was applied when Smith was speaking. Karel, for plaintiff, heard it but does not state who was speaking at the time. Latimer said that a man was ejected from the hall whén Smith or defendant was speaking — he did not recall which. Had the episode occurred at a public meeting, the man calling the speaker a liar, and not the speaker, would have been guilty of breach of peace. No one in the hall was threatened, molested or attacked. Karel is the only witness who testifies to any bitter or violent expressions by the audience. He says that at various times persons in the audience hollered, yelled and shouted, ‘‘Dirty Kike ! ” “Kill the Jews!” “Send them back to Russia!” — and other expressions noted in the majority opinion. Latimer testified only to the expressions “Tell them Father,” or “That is right,” heretofore mentioned, and that when the speaker referred to the inoculation of Germans with disease germs, etc., “the people widely across the room said, ‘Ah!’ and ‘Oh!’ and other expressions of anger.” Following the general rules of construction, the “other expressions of anger” heard by Latimer were similar to “Ah!” and “Oh!”, which are exclamations of mild contempt, wonder, sorrow or shame, and not expressions of anger. Mrs. Lipman says that except “a little commotion when someone was taken out,” and “except the clapping of hands, I heard no other noise inside the hall throughout the meeting.” The experienced court reporter, who covered the meeting and who was expected to report all that happened and did note the breaking of glass on two occasions during defendant’s speech, makes no reference to any of the interruptions and outcries of the audience testified to by Karel. It is significant that plaintiff did not call any of its three or four uniformed policemen and six plain clothes policemen, which it had stationed inside the hall, to corroborate Karel. Sherer, a director of Latimer’s Chicago Civil Liberties Committee, who was present at the meeting, whs not called. Jacques, a director and secretary of the American Civil Liberties Union (Chicago Division), who attended the meeting, was not called. Latimer admits that Jacques did not agree with him about the case. Defendant called ten witnesses who were inside the hall, none of whom was more partisan than Karel, Latimer and Mrs. Lipman. Eight of these witnesses denied that the expressions testified to by Karel were uttered. The other two were not questioned on this point. Judged as a whole, the evidence overwhelmingly predominates in favor of the defendant and against plaintiff on the question of hostile or violent demonstrations by the audience.
As to his personal reaction Karel testified that he was aroused when defendant said that he was going to devote his life to clearing up the Pearl Harbor incident. He did not testify that he resented or was moved or aroused by any other parts of defendant’s speech. His lack of reaction was similar to that of the two police officers in People v. Downer, 6 N. Y. S. (2d) 566, where as here the defendant was charged with breach of the peace or tending to cause a breach of the peace. The defendant Downer approached a police officer on a public street and asked the officer to recommend a restaurant not owned and not patronized by Jews, and said, “I am starting a world revolution to kill all the Jews.” He also handed to the arresting officer and to another patrolman a typewritten pamphlet headed “World Revolution against the Jew President, the Jew Governor and the Jew Mayor.” The court said:
“Both police officers are of the Jewish faith and the place where this occurred, namely, Coney Island, is largely populated by members of the Jewish race. The defendant told the officers that he had distributed about 5,000 copies of this pamphlet.
"There is no evidence in the case that there was an actual breach of the peace. The two officers who received the circulars were not disturbed or annoyed. However, it is contended by the People that the acts of the defendant tended to cause a breach of the peace. . . . These scurrilous attacks have been published and broadcast in our own city for years without provoking any breach of the peace, and I do not believe that they are apt to do so at this time.
“. . . That the circular in question is insulting, intemperate, and highly reprehensible is beyond question. Nevertheless, the acts and conduct of the defendant do not constitute a violation of Section 722 of the Penal Law, no more so than would be the public utterances during a political campaign by the orators of one party charging that the opposition party is dishonest and the enemy of the public, or any more so than the unjustified and indecent writings and oral declarations made from time to time against the adherents and disciples of other religious bodies.”
The reaction of Latimer and Mrs. Lipman was against the lies that were told. Because of the lies Mrs. Lipman called up and offered to be a witness. Latimer said that he ‘ ‘ swore out a warrant for people who tell lies.” The truth of the statements made by defendant is not involved here. As said in Cantwell v. Connecticut, supra, p. 310, “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.”
There is nothing in the evidence to indicate that the defendant’s attitude, bearing or manner of delivery of his speech was bellicose, belligerent, truculent, challenging or intimidating. His training had been that of a pulpit orator. In parts of his speech he impressed upon Ms hearers the Christian duty to love the people of all races, limiting his condemnation to the criminal element in the races, and in closing he warned the audience to avoid any controversy with the mob outside and advised them not to stop and argue. Except for the fact that defendant spoke at a private meeting and in a private place, this case and Cantwell v. Connecticut, supra, are strikingly analogous. In that case Cantwell, a member of Jehovah’s Witnesses, stopped two persons on a public street of the City of New Haven and, receiving permission to play a phonograph record, played the record “Enemies,” which attacked the religion and church of the two men, who were Catholics. Both were highly offended. One said he felt like hitting Cantwell, and the other that he was tempted to throw him off the street, and one told Cantwell he had better get off the street before something happened to him. Cantwell took up his phonograph and books and walked away. He was convicted of the common law offense of inciting a breach of peace. The conviction was reversed as an abridgment of the freedom of speech, the right to communicate information and opinion. In the present ease as in the Cantwell case, the breach of the peace, if any, consisted in the effect of defendant’s communication upon his hearers and not in any noisy, truculent, overbearing or offensive attitude or conduct of the defendant. There was no statute in Connecticut imposing a penalty for speeches inciting, counseling or promoting hatred, abuse, violence or hostility against any person or persons because of race, color or religion. The court drew a distinction between prosecutions based on the common law concept of breach of peace and prosecutions under a statute “evincing a legislative .judgment that street discussion of religious affairs, because of its tendency to provoke disorder, should be regulated,” and concluded, saying: “Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.” So in the absence of a statute in Illinois, the anti-New Deal, anti-Communist and anti-Jewish parts of defendant’s speech, considered in the light of the constitutional guarantees, did not render him liable to conviction of the offense charged against him.
The judgment should be reversed.