Herndon v. Lowry: 1937

Appellant: Angelo Herndon
Defendant: James L. Lowry
Appellant Claim: Unlawful arrest
Chief Defense Lawyer: J. Waiter LeCraw
Chief Lawyers for Appellant: Whitney North Seymour, W. A. Sutherland, Elbert P. Tuttle
Justices: Louis D. Brandeis, Pierce Butler, Benjamin N. Cardozo, Charles Evans Hughes, James C. McReynolds, Owen J. Roberts, Harlan F. Stone, George Sutherland, Willis Van Devanter
Place: Washington, D.C.
Date of Decision: April 26, 1937
Decision: Court found for appellant, 5-4

SIGNIFICANCE: In a case that raised political and legal issues of racial injustice in the South, the U.S. Supreme Court gave broader protection to revolutionary speech than it had in Gitlow v. New York, ruling that a state must be able to show a direct connection between the speech and an actual attempt to overthrow the government.

Angelo Herndon's worldview changed completely one sultry afternoon in June 1930 in Birmingham, Alabama. The slight, bespectacled black 17-year-old from a poor mining family in Ohio, a devout Christian who worked in a nearby coal mine, happened into a meeting of the Birmingham Unemployed Council. The speaker, a white Communist, was denouncing segregation and urging black and white workers to unite and confront racial and economic injustice. Impressed by the man's earnestness, Herndon committed himself to working for the Communist Party and became an organizer as the Depression deepened in the United States.

Herndon Arrested "On Suspicion"

By 1932 Herndon was in Atlanta, Georgia, forming an Unemployed Council there. Atlanta, like many other American cities, faced a political and financial crisis that year, as its public funds for relief ran out. The Fulton County Commission, which distributed money to needy Atlantans, was considering a tax raise. One commissioner, Walter Hendrix, stated that he believed the amount of suffering and starvation in the city had been overstated. When Herndon learned of this statement, he took it as a challenge and arranged a rally of unemployed people at the commission offices for the next day, June 30. Nearly a thousand workers, black and white, appeared at the commission offices. The startled commissioners immediately arranged to provide an emergency appropriation.

The incident worried Atlanta authorities. Suspecting Communist influence, Thethey put a watch on the post office box given as the council's address, and on July 11, when Herndon showed up to collect his mail, two detectives arrested him "on suspicion."

A search of Herndon's lodgings revealed a quantity of Communist material. Herndon made no effort to hide his affiliation. The Communist Party was not illegal in Georgia at that time, but prosecutor John H. Hudson decided to charge the young man with "insurrection"—a combined attempt to overthrow the state government—under a Reconstruction-era law which provided a maximum penalty of death. Hudson reasoned that the Communist Party advocated the overthrow of the existing government, and that therefore a member of the Communist Party was automatically guilty under the statute. He had already invoked this law against six Communists arrested in 1930. As it happened, however, Herndon's case came to trial before theirs, on January 16, 1933.

Herndon Becomes a Political Symbol

From the beginning, the Herndon case was both a legal challenge and a political symbol. His cause was taken up by the International Labor Defense, a Communist-led organization that specialized in defending leftists. The ILD secured two young black Atlanta attorneys, Benjamin J. Davis, Jr., and John H. Geer, as his counsel. They agreed to present a broad political defense that would concentrate on the absence of blacks from Georgia juries, the unequal treatment of black defendants, and the unconstitutionality of the insurrection statute.

The young defendant shared the political view of his case and was eager to become a martyr for his cause. When his time to speak came, he delivered an impassioned 20-minute attack on the "capitalistic class" for fostering racial segregation in the South. His lawyers, Davis and Geer, were more circumspect. They brought up the matter of the exclusion of blacks from Georgia juries at the beginning of trial, but Judge Lee B. Wyatt dismissed that argument. They contended that the Communist Party was legal and that Communist doctrines were available in Georgia libraries. But they failed to raise the issue of constitutionality except in a brief motion at the beginning of the trial—a mistake that was to be costly for Herndon. In his summation, annoyed by the contempt of the judge and the all-white jury, Davis became more political; he charged the prosecution with waving "the bloody flag of racial prejudice" and declared the indictment "a blot on American civilization." Unimpressed, the jury found Herndon guilty of insurrection, recommended mercy, and set his sentence at 18-20 years.

U.S. Supreme Court Hears the Case

With their client in jail, Davis and Geer filed an appeal with the state supreme court, alleging that the insurrection statute was unconstitutional. Meanwhile, the ILD publicized the case nationally to raise money for Herndon's bail. On May 24, 1934, the Georgia Supreme Court affirmed the verdict, and in September it refused to rehear the case, clearing the way for an appeal to the U.S. Supreme Court.

By the time Herndon v. Georgia reached the U.S. Supreme Court in April 1935, several things had changed. Herndon was now free on bail and living in New York City, where he frequently spoke to leftist rallies. His case had attained national recognition and attracted support from white liberals and organizations like the American Civil Liberties Union (ACLU). Most important, he had a new defense team, headed by the outstanding civil liberties lawyer from New York City, Whitney North Seymour. Seymour took the case on the understanding that he would pursue it entirely as a freedom-of-speech issue, without stressing the racial aspects, and the ILD agreed.

Seymour's argument before the Court was that the insurrection statute violated the Fourteenth Amendment, which forbids states from depriving citizens of life, liberty, or property without due process of law. By failing to define "insurrection" in detail, he argued, the statute opened the way for unjust and absurd prosecutions like Herndon's, in which a defendant was charged with a crime for belonging to a legal political party and advocating doctrines which were publicly available in libraries. J. Walter LeCraw, the assistant Fulton County solicitor, appealed to the Court's 1925 decision in Gitlow v. New York, in which it had held that a state had the right to restrict speech that had a "dangerous tendency" to undermine its institutions. His main point, however, was that the constitutionality question had been raised too late to be a proper ground for appeal.

On May 20 the conservative majority on the court, in an opinion by Justice George Sutherland, chose to duck the Fourteenth Amendment issue, ruling that the Supreme Court had no jurisdiction because the constitutional question had not been properly raised. Although three liberal justices, Cardozo, Brandeis, and Stone, issued a ringing dissent, the ruling meant Angelo Herndon was headed back to jail.

Determined to raise the constitutional issue, Seymour and his Atlanta associates, W. A. Sutherland and Elbert P. Tuttle, went back to the beginning. When Herndon returned to Atlanta on October 28 to begin serving his sentence, Sutherland and Tuttle served Fulton County sheriff James L. Lowry with a writ of habeas corpus, alleging that Herndon's imprisonment was unconstitutional. From there, the case worked its way up through the Georgia system once again, and again the state supreme court reaffirmed the original conviction.

The stage was set for a rehearing before the U.S. Supreme Court February 8, 1937. The parties were the same as in 1935: Seymour for the appellant, LeCraw for the defense, and the same nine justices. The atmosphere had changed, however. In January, the Court had voided the conviction of an Oregon Communist in a case very similar to Herndon's (De Jonge v. Oregon), and in Herndon v. Lowry it now had to address the Fourteenth Amendment question directly.

The Court divided 5-4. The majority opinion, written by Justice Owen Roberts, on April 26, struck down the insurrection law as an "unwarranted invasion of free speech." The statute, Roberts wrote, was "merely a dragnet which may enmesh anyone who agitates for a change of government." It was the first time a state law had been overruled on those grounds, and the decision heralded a major expansion in federal court protection of free speech.

—Hendrik Booraem V