State v. Sinchuk

115 A. 33, 96 Conn. 605, 20 A.L.R. 1515, 1921 Conn. LEXIS 120

Opinions

Beach, J.

The statute in question is entitled “An Act concerning Sedition”; and on its face it appears to penalize three classes of publications: (1) disloyal, scurrilous or abusive matter, concerning the form of .government of the United States, its military forces, flag or uniforms; (2) any matter intended to bring them into contempt; (3) or which creates or fosters opposition to organized government. The demurrer, and the stipulation accompanying the reservation, waive all defenses except the unconstitutionality of the statute.

The brief for the accused presents this defense in three aspects, which are described as to some extent overlapping: first, because it fixes no ascertainable standard of guilt and amounts to delegation to courts and juries of the legislative function of defining statutory offenses; second, because it oversteps the police power and deprives of liberty without due process of law, in penalizing expression for its character regardless of relation to harmful consequence; third, because it contravenes specific limitations on the police power, namely, the free-speech sections, the right of the people to adapt their form of government in accordance with their opinion, and the right of remonstrance.

In support of the first of these propositions the defendants rely mainly on United States v. Cohen Grocery Co., 255 U. S. 81, 41 Sup. Ct. 298, holding that § 4 of the Lever Act (41 U. S. Stat. at Large, 298), penalizing the making of “any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,” was unconstitutional because it did not fix any ascertainable standard of guilt, and did not inform persons accused of violation thereof of the nature and cause of the accusation against them. To the same effect are International Harvester Co. v. Kentucky, 234 U. S. 216, 34 Sup. Ct. 853; Collins v. Kentucky, 234 U. S. 634, 34 Sup. Ct. 924; American Seeding Machine Co. v. Kentucky, 236 U. S. 660, 35 Sup. Ct. 456. These last cases arose under statutes forbidding combinations to fix a price greater or less than the “real value ” of the article dealt in; and the attempt was to determine criminality by asking the court or jury to say what the real value of the article would have been had the combination not existed. On the other hand, a criminal statute is not unconstitutional merely because it throws upon men the risk of rightly estimating the effect of their conduct upon a condition of fact; e. g., what is “undue restraint ” of trade, Nash v. United States, 229 U. S. 373, 33 Sup. Ct. 780; whether their conduct is “reasonably calculated” to restrain trade, Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 29 Sup. Ct. 220; whether their language tends to encourage or advocate an actual breach of the law, Fox v. Washington, 236 U. S. 273, 35 Sup. Ct. 383; or whether a newspaper is “principally made up of criminal news ”, State v. McKee, 73 Conn. 18, 46 Atl. 409. And coming closer to the point, we have upheld a statute which penalized the publication of “any offensive, indecent, or abusive matter, concerning any person.” State v. Pape, 90 Conn. 98, 96 Atl. 313. Of this statute, we said that it must be construed consistently with the principles of the common law governing the publication of all defamatory matter, and with the constitutional provision that in all actions of libel the truth shall be a defense.

Applying the principles underlying these authorities to the present case, we think the statute is not fairly open to the objection that it fixes no ascertainable standard of guilt. The phrase “disloyal, scurrilous or abusive matter,” is confined specifically to the form of government of the United States, its military forces, flag or uniforms, and the principles of the common law governing the publication of defamatory matter, in so far as they are applicable, furnish all the analogies necessary to define the nature and cause of this branch of the accusation. Whether the publication in question was with intent to bring the form of government of the United States and its flag into contempt, is an issue of fact such as is presented in most criminal prosecutions. Whether the publication creates or fosters opposition to organized government, is also an issue of fact no more uncertain than the question whether a publication is obscene.

The second objection is that the Act penalizes expression for its character regardless of relation or harmful consequence. This objection, both in its form and in the mode in which it was presented in argument and on the brief, stands by itself and does not involve the third objection above stated. It deals not with the alleged violation of any specific limitation on the exercise of the police power, but with the reasonableness of the prohibition as measures for the public peace and safety. It may be admitted that the publication of matter concerning the form of the Federal

Government, which is merely scurrilous or abusive, is not necessarily a direct incitement of disobedience to any other law, but it is not necessary to look outside of the statute itself to find a legal basis for criminality, because the Act itself is the declaration of the General Assembly that the publication of the prohibited forms of expression does endanger the public peace and safety. This declaration it has power to make unless the court can see that it is plainly unfounded. State v. McKee, 73 Conn. 18, 24, 46 Atl. 409. We have no doubt that a sufficient probability of danger to the public peace and safety arises from publications concerning the government of the United States and of its flag, which would come within the common-law definition of defamatory matter, to justify the statute so far as its first two clauses are concerned. Defamatory publications seem as dangerous to the public welfare when addressed to the national government as when addressed to an individual. State v. Pape, 90 Conn. 98, 96 Atl. 313. As to the final clause of the statute, it is idle to say that anarchistic propaganda are harmless in the law.

We come now to the question, which also underlies the objections already discussed, whether the statute contravenes any specific provision of the Bill of Rights, or of the Federal Constitution. Section 2 of the Bill of Rights in the Constitution of this State, provides “that all political power is inherent in the people and all free governments are founded on their authority, and instituted for their benefit; and that they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.” This section is plainly inapplicable to the defendants. The information alleges, and the demurrer admits, that the defendants are not “citizens of the United States or of the State of Connecticut.” The right affirmed by this section is the right of the people to alter “their form of government.” It is because it is their own, and instituted by themselves for their own benefit, that they have the right to alter it. The proposition that aliens have an undeniable and indefeasible right to alter our form of government will hardly bear statement.

Section 16 provides: “The citizens have a right, in a peaceable manner, to assemble for their common good, and apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.” This section is also inapplicable. No right of peaceable assembly is invaded by the statute, and there is nothing to show that the publications in question were addressed, for any purpose whatever, to those invested with the powers of government. The allegations of the information and the admissions of the demurrer do not indicate that such was the fact, and the inference to be drawn from the admission that the publications were of the character described in the statute, would lead to another conclusion.

Sections 5 and 6 of the Bill of Rights are as follows:— “5. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege. 6. No law shall ever be passed to curtail or restrain the liberty of speech or of the press.” If we are right so far, the next question is whether matter of the kind described in the statute and information is of such a constitutionally privileged character that its publication by the defendants may not be punished, although dangerous to the public welfare. The defendants attempt to maintain that their publications are so privileged, and are a legitimate exercise of the right of free speech, by what is, in practical effect, an appeal to § 2 of the Bill of Rights. They quote from State v. McKee, 73 Conn, 18, 28, 46 Atl. 409: “The right to discuss public matters stands in part on the necessity of that right to the operation of a government by the people ’’ — and they say: “There is a public necessity, however, that public matters should be freely discussed. ... Is it not the law that such discussion, even though potentially harmful, may not be punished — is not an ‘abuse’ of free speech— so long as it does not amount to direct and positive incitation of harm? ” The distinction thus attempted is in principle a familiar one between harmful utterances intended to incite resistance or disobedience to law, and the same harmful utterances intended only to secure a change in the law; the latter, though dangerous, being justified by the inalienable and indefeasible right of the people to alter their political institutions. 21 Columbia Law Review, 526. The question, then, recurs, whether the defendants, being aliens, possess that right. We discuss that question, and then the question whether the denial of that right to aliens violates the requirement of the Fourteenth Amendment, that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

The defendants’ brief does not argue the question whether § 2 of the Bill of Rights applies to aliens. It simply assumes that aliens are included in the term “the people,” and then uses the assumption that the defendants are exercising the constitutional right of altering their form of goverment as a plea of privilege for the publication of matter which the legislature has declared to be dangerous to the public peace and safety. Prima facie, publications which have been forbidden by the legislature, because dangerous to the public welfare, are abuses of the privilege of free speech. Unless, the defendants can successfully claim the right of unlimited political discussion, they cannot say that the statute deprives them of any constitutional privilege.

The question whether aliens are entitled to the benefit of the reservations of personal liberty guaranteed to citizens and to the people in our Bill of Rights, is not altogether a new question in this State. In Jackson v. Bulloch, 12 Conn. 38, the question arose, in a writ of habeas corpus, whether a slave could be held in servitude in Connecticut by her owner who had brought her here with a view to a temporary residence. The petitioner relied both upon the Constitution and upon the slavery statutes then in force. On the latter ground she prevailed, but in discussing the constitutional question we said, p. 42: “The Bill of Rights, in its first section, declares that all men, when they form a social compact, are equal in rights; and that no man, or set of men, are entitled to exclusive public emoluments or privileges from the community. The language is certainly broad; but not as broad as that of the Bill of Rights in Massachusetts, to which it has been compared. It seems evidently to be limited to those who are parties to the social compact thus formed. Slaves cannot be said to be parties to that compact, or to be represented in it.” And of § 8 of the Bill of Rights, we said: “The eighth section of the Bill of Rights has also been pressed upon us: that ‘the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches or seizures.’ This is almost a transcript of the Fourth Article of the Amendments of the Constitution of the United States. And the fact that this Amendment was adopted at all, and that amidst all the conflict of opinions upon the subject of slavery, this clause has never been claimed to affect that subject, shows very strongly, that it was not intended to apply to that description of persons. When the preamble to the Constitution of the United States speaks of ‘we, the people — to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution/ it cannot be seriously contended, that it included that class of people called slaves; and the term 'people ’ in the Bill of Rights, must have been used in a similar sense.”

The principle underlying this portion of the decision applies to the present case with added force, for the second section of the Bill of Rights, declaring that all political power is inherent in the people, cannot refer to aliens, who have no political power; nor can the declaration that the people have at all times an undeniable and indefeasible right to alter their form of government, refer to aliens, who have no part nor lot in the government.

Turning back to the free-speech sections, § 5 declares that "every citizen ” may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty. This privilege is on its face confined to citizens. And § 6, that no law shall ever be passed to curtail or restrain the liberty of speech or of the press, plainly refers to the liberty of speech and of the press conferred by § 5 on citizens.

We do not mean to say that aliens have no right of free speech. If the General Assembly should undertake to declare a comprehensive consorship of the press, and an alien newsdealer should be prosecuted for selling a book or a newspaper which had not been passed by the censor, the statute could not be enforced against him. And for the reason that the business of news-dealing is a matter of private concern, and is a business in which aliens, who are duly admitted to the United States under our immigration laws, have an inherent right to engage, and having that right, they are entitled to the equal protection of the laws in the conduct of that business. Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064; Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7. We do, however, lay it down as a self- evident proposition, supported in principle by Jackson v. Bulloch, 12 Conn. 38, that aliens have no constitutional right to share in the privilege and responsibility of attempting to change our laws or forms of government, and hence that they have no right, under cover of being engaged in good faith to accomplish those ends, to engage in scurrilous or anarchistic propaganda which has been declared by the General Assembly to be dangerous to the public welfare. It follows that, so far as aliens are concerned, the General Assembly has a right to pass a statute forbidding or penalizing the publication of such propaganda. And as it is a principle of constitutional law that no one has a right to attack a statute as unconstitutional unless he can show that its enforcement against him has violated or will violate his constitutional rights, the defense of unconstitutionality is not open to the ‘defendants in this action. Tyler v. Judges of the Court of Registration, 179 U. S. 405, 21 Sup. Ct. 206; 6 R. C. L. p. 89, and numerous cases cited in the note to § 87.

The remaining question is whether this conclusion deprives the defendants of the equal protection of the laws. Evidently not, for the question whether the statute is enforceable against citizens is not before us. We simply hold that the defendants, being aliens, do not possess the right of attempting to alter our form of government, and for that reason are not qualified to plead the privilege of unlimited political discussion, on which their defense, that the statute violates the second, fifth and sixth sections of the Bill of Rights, is founded.

We may add that if this defense had been pleaded by a citizen, it would have been by no means clear that the statute might not be construed so as to avert most, if not all, of the criticism directed against it. State v. McKee, 73 Conn. 18, 46 Atl. 409; State v. Pape, 90 Conn. 98, 96 Atl. 313.

We have already indicated that the first and second clauses of the statute are to be construed in the light of the principles of the common law governing the publication of defamatory matter. And while the construction of the statute as a whole is not required or permitted by this record, it is a fair question— Professor Freund to the contrary notwithstanding— whether the second section of the Bill of Rights justifies the publication of anarchistic propaganda.

The Superior Court is advised to overrule the demurrer and to enter judgment pursuant to the stipulation.

In this opinion Gager, Curtis and Burpee, Js., concurred.