United States v. David T. Dellinger

PELL, Circuit Judge

(dissenting in part, concurring in part).

This appeal is before a panel of this court on a vehicle consisting of more than 22,000 numbered transcript pages and some 2485 pages of parties’ briefs, using that term in no descriptive sense. Of necessity, brevity has not been permitted to enter the picture in the panel’s majority opinion. It is with considerable reluctance that I am confronted with that which I deem a necessity, the expression of divergent views which will add more pages. However, I entertain no doubts but that the statute under which the appellants were prosecuted is facially unconstitutional in that it is clearly violative of the First Amendment right of freedom of speech.

My reluctance, overridden by the importance of the issue, is compounded by at least two additional factors, probably of greater significance than the mere desire to avoid length. First, prior to the present appeal, a panel of this court unanimously had held that a district court was correct in dismissing a challenge to the constitutionality of the statute. The holding there was that the attack upon the statute did not even present a substantial constitutional question. National Mobilization Committee v. Foran, 411 F.2d 934 (7th Cir. 1969), aff’g, 297 F.Supp. 1 (N.D.Ill.1968). While not writing on a clean slate, I have put aside my ordinary respect for the essentiality of adherence to stare decisis principles and my disinclination to deviate therefrom because of the fact that one of the controlling aspects of unconstitutionality was not presented to the panel, because the Supreme Court subsequently decided what I consider a *410dispositive case, and because, on final analysis, my reading of the statute can lead to no other result.

Secondly, the particular case before us is not one which induces any subjective desire on my part to add reasons to those already advanced by the majority opinion for reversal. Candor compels recognition that this case is not of the ordinary type coming before this court. While our appellate jurisdiction customarily confines us to the record before us —using “record” in the narrow legal sense of that term — none of us can be oblivious of the status that the trial of this case has assumed in the minds of a very substantial number of members of the public. Putting it very simply, that status, often vigorously expressed, is that the courtroom in which the trial was conducted was a forum in which were arrayed on one side the forces of law and order and on the other side persons representative of designedly disruptive anarchy. Any basis for reversal is bound to be viewed by many as a victory for those who would destroy this country. In fairness, many others are possessed of completely contrary views of the trial and the incidents leading thereto. I express no views on these differing evaluations other than to recognize their existence and their inherent pulls which for our judicial function must be put firmly aside. “The judiciary has always borne the basic responsibility for protecting individuals against unconstitutional invasions of their rights by all branches of the Government.” Stamler v. Willis, 415 F.2d 1365, 1369-1370 (7th Cir. 1969).

I do, however, express, as a further threshold matter, the view that saying there could be no possibility of persons, individually or collectively organized, crossing our state boundaries with the express intent of bringing about a riot is to look at political history with naive-té. I therefore also, as a corollary, am of the opinion that a federal statute could be drawn, sufficiently narrow and precise, to accomplish punishment of such activity without running afoul of First Amendment rights. In my view, that was not done here.

The legislative history of the so-called “Anti-Riot Statute of 1968,” 18 U.S.C. §§ 2101 and 2102, while providing a broad field for law review article plowing, will not lengthily concern me here, attention instead being devoted primarily to the language which evolved from the legislative process. Freedom of speech, although seemingly accorded herculean stature in the platitudinous outpourings of Constitution Day orators, becomes, when out of the vacuum, “delicate and vulnerable,” and the “threat of sanctions may deter [its] exercise almost as potently as the actual application of sanctions.” N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Thus, it seems to me that we as a court should “not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects.” Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (1964).

Nevertheless, by way of background, it must be noted that in the mid-1960’s, Congress gave serious attention to national anti-riot bills. “These bills are a response to a grave national problem —the outbreak of riots and other violent incidents in a good number of cities in various sections of the country.” 1 Debate reflected a belief, at least on the part of some, that the riots just did not happen spontaneously but were the planned work of professional agitators whose home bases frequently did not coincide with the geographical state of the occurrence.

It was not overlooked in Congress that the agitator must ordinarily communi*411cate by speech, which, in turn, would necessitate the possibility that controls imposed on agitators might infringe First Amendment rights. In a letter to the chairman of the House Judiciary Committee, from Assistant Attorney General Doar, on October 11, 1966, the following was stated:

“The term ‘inciting a riot’ should be defined in the Act. The definition must recognize that incitement is a form of expression, and should specifically state that expression protected by the First Amendment — the mere advocacy of ideas and the mere expression of belief — is not included within the scope of the Act. In light of Herndon v. Lowry, 301 U.S. 242 [57 S.Ct. 732, 81 L.Ed. 1066], such a definition might be structured along the following:
“Inciting a riot shall mean urging or instigating other persons to riot, where such urging or instigating is done at a time and place and under such circumstances as to create an imminent danger of a riot occurring, and shall not mean the mere advocacy of ideas or the mere expression of belief.”

National legislation on the subject did not proceed apace. However, the statute with which we are now concerned did finally come into being in April 1968. Interim discussion, which may have only articulated personal and individual viewpoints of a few, reflected that those who incite to violence should be punished whether or not freedom of speech was impaired, but at least the 1967 House bill (HR421) contained an exclusion in the definition of inciting a riot of “the mere advocacy of ideas or the mere expression of belief.” Without laboring the matter into extended specificity, a fair appraisal indicates that a push for Senate passage of what is essentially the present statute occurred early in March 1968. The Attorney General, in accordance with his previous recommendations, submitted on behalf of the President a bill containing the following language:

“(c) To incite or organize a riot shall mean urging or instigating other persons to riot, where such urging or instigating is done at a time and place and under such circumstances as to further the course of an existing riot or to create an imminent danger of a riot occurring, and shall not mean the mere advocacy of ideas or the mere expression of belief.” 114 Cong.Rec. 5213 (March 5, 1968)

The appellants’ summary of the ensuing events, unchallenged factually by the Government, is as follows:

“Despite pleas by various Senators to consider the Administration version in view of, as one Senator put it ‘the very delicate constitutional questions [which] are involved here’,2 the Thurmond amendment, containing the text of the present Act, was pushed to a successful vote by its supporters, thus rejecting the President’s plea for ‘a narrow and carefully drawn’ piece of legislation.” 3

That the legislation as finally passed was something less than a model of draftsmanship is illustrated by the obscurantism of 18 U.S.C. § 2101(b),4 which on analysis would seem to say that proof that a defendant had engaged in an overt act and had travelled in in*412terstate commerce would be admissible proof that he had travelled in interstate commerce.

The crucial subsection here, however, which did not follow the suggestion of the Attorney General, is 18 U.S.C. § 2102(b), reading as follows:

“(b) As used in this chapter, the term ‘to incite a riot’, or ‘to organize, promote, encourage,'participate in, or carry on a riot’, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” (Emphasis added.)

The majority opinion does “not pretend to minimize the First Amendment problems presented on the face of this statute,” and in my opinion rightly does not. While the exposition of the constitutional problems in the majority opinion sometimes borders on being an apologia for inept legislative draftsmanship (“awkward phraseology” according to the Government), nevertheless, I am in accord with much of the acute analysis of the underlying issues as written by Judge Fairchild. It is only when we near the doorway of disposition that our paths part.

The matter of the so-called “double negative” is to me the first determinative step leading to and through the gateway of First Amendment violations. This matter was not presented to nor considered by the panel of this court in Foran, supra. There would have been no problem if the final part of § 2102(b) had been written: “ . but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, even though involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” That is the construction for which the Government perforce must in effect contend. Alternatively, there would have been no problem on this particular score if the wording had terminated with the word “belief.” Neither of these wordings, however, was utilized.

To suggest that the tacked-on phrase was deliberately inserted in the legislation to cause invalidity would seem to evoke a violent assumption. This does not mean, however, considering the nation-wide array of violence and riots about which members of Congress certainly were the recipients of much correspondence from disturbed constituents, that there were not legislators who, despite the admonitions of the Attorney General, were of the belief that punishment should be visited upon any who merely advocated the idea of violence or expressed belief in the rightness thereof. The legislative history does not necessarily dispel such meaning. With all respect, the majority’s attempted saving construction that the phrase was inserted by the drafters to forestall a First Amendment defense in the ease of a truly inciting, action-propelling speech, is not only strained beyond reasonable acceptability but is unsupported historically. Further, such a construction provides no guidance for the interstate traveller who intends to speak of the rightness of violence as a last resort solution to whatever problem of civilization concerns him. He will be caught in the same net as the true inciter, and the context of his remarks as well as the reaction of his audience, possibly unwarranted and unanticipated, will provide the peril of his being subject to grand jury scrutiny and eventual punishment at the statutorily uncontrolled option of a comminatory prosecutor.

“The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.” Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, *413742, 84 L.Ed. 1093 (1940). I have not intended to direct any unfavorable criticism toward any official charged with the duty of prosecuting under the Anti-Riot statute. In examining a statute with regard to its availability for constitutional abuse, the view cannot be confined to known officials with their known tendencies and philosophies but must include those who may be in the positions tomorrow and the tomorrows thereafter.

I am able to reach no conclusion other than that the added phrase was intended to preclude, under pain of prosecution, advocacy of violence even though only an idea or expression of belief. It is repugnant to our ideas of, and our hopes for, civilization that resort to violence should ever be necessary. Self-defense might seem ordinarily to be an exception, but ideally civilization should develop to the point of obviating even this necessity. Civilization, however, unfortunately has not progressed to this point, nor to the point where there are not believers that one way or another it could stand improvement. Nevertheless, in our panoply of constitutional mandates none exceeds, in my opinion, the significance in its impact upon a free, even though not yet ideal, civilization, that of freedom of speech.

Thus, though we, or at least the substantial majority of us, may find it abhorrent to think that the rightness of violence should ever be advocated, even though expressed as an idea or belief, nevertheless, the distaste must be overridden in the preservation of the essential freedom here at stake.

This necessity is made quite clear in Brandenburg v. Ohio, 395 U.S. 444, 447-448, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969), in which the Supreme Court in a unanimous per curiam opinion, after referring to the discrediting by subsequent opinions of Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L. Ed. 1095 (1927) (which had upheld the California Criminal Syndicalism Act), stated as follows:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit ■ a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290, 297-298 [81 S.Ct. 1517, 1520-1521, 6 L. Ed.2d 836] (1961), ‘the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.’ See also Herndon v. Lowry, 301 U.S. 242, 259-261 [, 57 S.Ct. 732, 739-740, 81 L.Ed. 1066] (1937); Bond v. Floyd, 385 U.S. 116, 134 [87 S.Ct. 339, 348, 17 L.Ed.2d 235] (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.” (Footnote omitted.) it

While this court did not rely on Whitney in its Foran decision, nevertheless, it is of more than casual significance that the Brandenburg opinion was handed down subsequent to that in Foran. In Foran, the court correctly points out that there must be a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices, 411 F.2d at 939. The fault of the statute here when reread in the light of the teaching of Brandenburg is that the purported speaker who travels in, or uses the facilities of, interstate or foreign commerce is not provided with the specifically drawn line between protected and viola-tive utterances.

The majority opinion in the case before us, aside from the double negative issue, would seem to find salvation for *414the statute by construing “to incite a riot” as referring to words which are sufficiently likely to propel the violent action to be identified with action. The conclusion is then reached that the crucial word “urge” in § 2102(b) embodies the required relation of expression to action. With this I am unable to agree. The range of shadings of meanings of the word “urge” in Webster’s Third New International Dictionary (Unabridged, 1966), in addition to constituting a semantical morass, would provide simultaneously a basis for prosecution and a defense to the prosecution. Thus, the prosecution can point to the meaning as being that of exercising an inciting influence. The defense can counter by showing that a presentation in an earnest manner is an equally acceptable definition.

This result might be otherwise if one meaning was the only definition or was the commonly accepted definition and the other or others were archaic, obscure, dialect or of similar category. That is not the situation here. I find no compulsion in the definitions toward the narrow one needed to sustain the statute without “judicially rewriting it.” Cf. Aptheker v. Secretary of State, supra, 378 U.S. at 515, 84 S.Ct. 1659.

Further, I do not find any basis in the statute to cause me to read a restricted meaning into the word. I do not, in sum, see in the statute the guidelines by which the speaker in favor of the rightness of violence can make a safe determination. If he merely goes beyond the bare statement of the proposition by stating not only that violence is right to correct a particular abuse but that it is imperative, it seems he is within the orbit of “urging,” indeed, he maybe already be impaled by his sincerity in positing his basic proposition.

Further, and of equal significance, the present statute does not by clear intendment meet the Brandenburg pronouncement that advocacy is unprotected only where it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action, 395 U.S. at 447, 89 S.Ct. 1827. The importance of this qualification was contained in the Attorney General’s letter set out hereinbefore. The advice was not heeded.

I also find an overly broad sweep in § 2101(a)(1) in the inclusion of the word “thereafter.” This subsection is the basic statement of the offense. Stripped of modifying and alternative verbiage, the subsection subjects to fine and imprisonment one who travels in interstate commerce with intent to incite a riot and thereafter incites a riot. There is no required causal relationship between the travel with intent and the riot actually incited. No necessary connection whatsoever need be shown between them nor is there any time limitation as to when the overt act shall take place with relationship to the travel. I cannot conceive the constitutional validity of a statute which in this open-ended manner punishes a person at the federal level for what would otherwise be a local crime only because at some time in his past he had crossed a state line or had used a facility of interstate commerce with a nefarious intent. In the example above, I used actual inciting, but the same result would be applicable if the original travel was with the intent of aiding some other person in participating in a riot. No convicted criminal on probation is placed under such severe nonterminal strictures.

Sometimes people are prone to speak offhandedly and perhaps slightly inaccurately of well-established or cherished concepts without resort to the exact text of the source. The plain language of the First Amendment to the Constitution of the United States of America is “Congress shall make no law abridging the freedom of speech. . ” While “freedom of speech” is not an absolute right and proper curbs have been spelled out by the judiciary, e. g., in the area of libel,5 the word *415“speech” itself is not qualified by a limitation of subject matter to innocuous mundanities. Imaginative or stirring ideas and idealistic beliefs are equally within its sweep. Speech without effective communication is not speech but an idle monologue in the wilderness. Communication involves listeners. A “law” which upon reasonable construction would, by its deterrent threat of punishment for the mere expression of ideas or beliefs, cellularly isolate the speaker from potential listeners in all of the states of the Union except his own would, in my opinion, abridge freedom of speech.

Other arguments of facial unconstitutionality are advanced by the appellants, some of which may have arguable merit in view of the imperfect draftsmanship reflected in this statute, to which there has been previous reference herein. Thus, in the § 2102(a) definition of “riot” the word “disturbance” is used. As stated by Judge Will in Landry v. Daley, 280 F.Supp. 968, 971 (N.D.I11. 1968), “New ideas more often than not create disturbances, yet the very purpose of the First Amendment is to stimulate the creation and dissemination of new concepts.”

Somewhat the same thought was expressed by Alfred North Whitehead, English philosopher and mathematician, “Great ideas often enter reality in strange guises and with disgusting alliances.” Whitehead, Adventures of Ideas (1933).

Also, the overly broad language of the statute already referred to has other constitutional significance in its discouraging impact on the freedom to travel.

“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969).

Since the question before is not to propose constitutionally acceptable guidelines for a national anti-riot statute but rather to scrutinize on constitutional grounds the statute actually enacted, I do not deem it necessary to consider each of the numerous bases of challenge advanced by the appellants. Those I have discussed appear to me to be the principal ones and more than sufficient for a successful challenge.

The scope of judicial inquiry has been aptly stated by Chief Justice Warren in United States v. Robel, 389 U.S. 258, 267-268, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967), as follows:

“It is not our function to examine the validity of that congressional judgment. . . . We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a ‘less drastic’ impact on the continued vitality of First Amendment freedoms. Shelton v. Tucker, supra [364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (I960)]; cf. United States v. Brown, 381 U.S. 437, 461 [85 S.Ct. 1707, 14 L.Ed.2d 484] (1965). The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less.”

The footnote to the quoted portion of the opinion (at p. 268, 88 S.Ct. 419 at p. 426) also is meaningful to the case before us in the refusal to balance the governmental interests expressed in the statute against the First Amendment rights asserted by an individual.

*416The rationale for the refusal was put as follows:

“We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its con-cededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment, But we have in no way ‘balanced’ those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict.”

In the case before us, I would hold that the statute was not drawn sufficiently narrowly to avoid the conflict and that the convictions must be reversed because of being grounded on an unconstitutional enactment. Inasmuch as the majority of the panel have reached a contrary result and inasmuch as this court is not one of final resort, I address myself to the remainder of the majority opinion only on the basis of an arguendo assumption of statutory constitutionality.

Every judge writing an appellate court opinion will probably phrase similar analysis and result somewhat differently. The difficult issues and extensive record before us make it unlikely that the present case would be an exception. Thus, while I might not have approached some of the issues in exactly the same manner, nor used identical language, upon my consideration of the results reached as to the issues covered, other than those pertaining to statutory constitutionality, I concur in the majority opinion.

As this opinion was in the process of being finally drafted, the people of the world were stunned and shocked by the terroristic violence occurring at the site of the 1972 Olympic games. Indubitably the shock will be followed by popular demand for suppression of violence as a political weapon. An ideal state of civilization should find no person in any jeopardy of loss of life or wellbeing from violence irrespective of its motivation. To attain that state, however, by suppression of the free interchange of ideas and beliefs would be a pyrrhic sacrifice of a precious freedom for an illusory safety. It is because of my underlying belief in the preservation of that freedom that I have written as I have herein. My brothers of the panel share my views on the importance of the preservation but do not find the cause for alarm that I do in this particular statute.

. Statement of John Doar, Assistant Attorney General, before Subcommittee No. 5 of the House Committee on the Judiciary, October 5, 1966.

. See remarks of Senator Harris, 114 Cong.Rec. 5213 (March 5, 1968).

. See letter from Attorney General, accompanying proposed bill, 114 Cong.Rec. 5213 (March 5, 1968).

. § 2101(b) : “In any prosecution under this section, proof that a defendant engaged or attempted to engage in one or more of the overt acts described in sub-paragraph (A), (B), (C), or (D) of paragraph (1) of subsection (a) and (1) have [sic] traveled in interstate or foreign commerce, or (2) has use of or used any facility of interstate or foreign commerce, including but not limited to, mail, telegraph, telephone, radio, or television, to communicate with or broadcast to any person or group of persons prior to such overt acts, such travel or use shall be admissible proof to establish that such defendant traveled in or used such facility of interstate or foreign commerce.”

. Likewise (and inasmuch as no freedom of speech opinion would be complete without reference to the traditional example) yelling “fire” in a crowded theater.