Herndon v. Lowry: 1937

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.