HERNDON v. LOWRY 301 U.S. 242 (1937)

Herndon was a black organizer convicted of attempting to incite insurrection in violation of a state law. Herndon had sought to induce others to join the Communist party. At the time the party was seeking to organize southern blacks and calling for separate black states in the South. While only indirectly adopting the clear and present danger test, the Court refused to apply the bad tendency test of gitlow v. new york (1925) and stressed the absence of any immediate threat of insurrection. In an opinion by Justice owen roberts, a 5–4 Court held (1) that the evidence presented failed "to establish an attempt to incite others to insurrection" even at some indefinite future time; and (2) that the statute was unconstitutionally vague as applied and contrued because "every person who attacks existing conditions, who agitates for a change in the form of government, must take the risk that if a jury should be of opinion he ought to have foreseen that his utterances might contribute in any measure to some future forcible resistance to the existing government he may be convicted of the offense of inciting insurrection." The vaguenessdoctrine invoked was not specifically articulated as a first amendment standard; instead, the general criminal standard of "a sufficiently ascertainable standard of guilt" was applied.

The state supreme court believed that a conviction would be justified if the defendant intended that insurrection "should happen at any time within which he might reasonably expect his influence to continue to be directly operative in causing such action by those whom he sought to induce.…" This formula, which the Supreme Court found constitutionally infirm, must be compared with its own of the 1950s upholding convictions for conspiracy to advocate overthrow of the government where the intention was that of an organized group to bring about overthrow "as speedily as circumstances would permit."

Martin Shapiro
(1986)