Terminiello v. Chicago

The Court held that even speech that is designed to stir up anger and provoke disputes is protected by the First Amendment. While the right to free speech is not absolute, the Court chose to draw the line as to what types of speech created "a clear and present danger" far beyond the hate-mongering, mean-spirited kind in which Arthur Terminiello engaged.

Father Terminiello, sometimes called "the Father Coughlin of the South" because of his anti-Semitic rhetoric, was an Alabama priest who, at the time of this case, was under suspension by his church for distributing anti-Jewish literature. Well known for his controversial views on Jews, blacks, New Deal Democrats, and just about everybody else not white, Christian, and conservative, Terminiello came to Chicago from his home base of Birmingham. He was invited by a group called the Christian Veterans of America in 1946 in order to make a speech at the West End Women's Club.

Terminiello's appearance was attended by a capacity crowd of about 800. Meanwhile, a hostile mob of protesters, estimated at well over 1,000 people, gathered outside the auditorium. The tone of Terminiello's speech, which straightforwardly attacked "Communistic Zionistic Jews," African Americans, and Franklin D. Roosevelt, among others, incited the crowd outside to violence. Police were unable to contain the disturbance. Scores of rocks, bricks, bottles, and stink bombs were thrown, resulting in 28 broken windows, 17 arrests.

In the wake of the mayhem, an organization called the Chicago Civil Liberties Committee filed a complaint against Terminiello, claiming that he had violated a Chicago ordinance against disturbing the peace. The language of the ordinance declared it illegal to create a "diversion tending to a breach of the peace." Terminiello was convicted and fined $100 for his role in the disturbance. Two higher Illinois courts upheld the conviction. Terminiello eventually brought his case to the U.S. Supreme Court.

In a 5-4 decision, the Supreme Court reversed the ruling of the Illinois courts, and overturned Terminiello's conviction. Throughout the appeals process, Terminiello maintained that the Chicago ordinance under which he had been charged violated his constitutionally protected right of free speech. This argument found a degree of sympathy among the Supreme Court justices. Justice Douglas, in particular, had consistently voted to protect virtually all forms of expression throughout his career, and Terminiello v. Chicago was no exception. Writing for the majority, however, Douglas followed a much more subtle line of reasoning. The problem with Terminiello's conviction was not the Chicago ordinance itself, but rather the instructions that had been given to the jury regarding how to interpret it. The trial court that first heard the case was advised that "breach of the peace" can be committed by speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance."

To Douglas, this represented a view of public speech that was far too restrictive. In typical style, Douglas wrote:

A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger . . . That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest . . . There is no room under our Constitution for a more restrictive view.

Annoying and inconvenient as it was, the evil incited by Terminiello's speech was not nearly substantive enough to qualify for restriction under Douglas's interpretation of the First Amendment.

So while the Court voted to void Terminiello's conviction, the justices were collectively unwilling to throw out the Chicago ordinance altogether. It was acceptable, they said in effect, to pass laws against disturbing the peace; but if the disturbance was in the form of speech, it had better be extraordinarily inflammatory if you expected a conviction to stick. The Court chose not to address the question of whether Terminiello's antics were likely to have caused a riot. Instead, it limited its decision to the validity of the Illinois court's procedures.

Several strong points were made by dissenting justices in Terminiello. In a long, emotional dissenting opinion, Justice Jackson was clearly influenced by his own recent experience as chief U.S. counsel at the Nuremberg trials of Nazi war criminals. To Jackson, Terminiello's language was too close to that of the fascists, whose defeat was considered important enough to justify going to war. Jackson wrote:

An old proverb warns us to take heed lest we `walk into a well from looking at the stars.' . . . This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen . . . There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Justices Vinson and Frankfurter dissented on other, more technical, grounds. They objected to Douglas's argument that Terminiello's conviction was flawed because of faulty jury instruction by the trial judge. Their reason: Terminiello and his attorneys never complained about it. The Supreme Court, as a rule, had no business tampering with a state court's procedures on issues that were raised by neither litigant.