Caseflicks

Supreme Court of the United States • 1949

Terminiello v. Chicago

337 U.S. 1 | 69 S. Ct. 894 | 93 L. Ed. 2d 1131 | 1949 U.S. LEXIS 2400

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Takeaway

In short, this case holds that government cannot punish speech merely because it provokes anger, dispute, or unrest, and a general verdict must be reversed when it may rest on such an unconstitutional ground.

Background

Arthur Terminiello was convicted of disorderly conduct under a Chicago ordinance after delivering a speech at a crowded meeting of the Christian Veterans of America. About 800 people attended inside the auditorium, while a large and hostile crowd gathered outside to protest. Police struggled to contain disturbances, including efforts to force entry and the throwing of objects at the building.

Terminiello's speech sharply condemned the protesters outside and attacked political and racial groups he viewed as threats to the country. The trial judge instructed the jury that a breach of the peace included speech or conduct that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." The jury returned a general guilty verdict, and Terminiello was fined.

The Illinois Appellate Court and the Illinois Supreme Court affirmed the conviction, treating the ordinance as applicable to fighting words. Terminiello sought Supreme Court review, arguing that the ordinance, as applied to his speech, violated the First Amendment as incorporated against the States through the Fourteenth Amendment.

Issues

Issue #1

Whether Chicago could constitutionally punish speech under a construction of its disorderly-conduct ordinance that allowed conviction because the speech stirred anger, invited dispute, or created unrest.

Holding

No. The ordinance, as construed and applied through the jury instruction, unconstitutionally reached protected speech.

Reasoning

The Court treated the trial judge's definition of "breach of the peace" as an authoritative construction of Illinois law. A state court's construction is binding on the Supreme Court just as if the limiting or expansive language had appeared in the ordinance itself.

Free speech has a central democratic function: it permits the debate and exchange of ideas through which government remains responsive and peaceful political change can occur. Speech may properly challenge prevailing beliefs, provoke disagreement, unsettle audiences, and even stir people to anger.

Although freedom of speech is not absolute, the government may not punish provocative expression merely because it produces public annoyance, unrest, or dispute. Punishment requires a likelihood of a clear and present danger of a serious substantive evil that rises far above ordinary inconvenience, annoyance, or unrest.

The instruction allowed the jury to convict Terminiello on precisely the impermissible grounds that his speech invited dispute, stirred anger, or produced unrest. Such a rule would permit government or dominant community groups to standardize ideas by suppressing expression because of its disturbing effects.

Issue #2

Whether the general verdict could stand when the jury may have relied on unconstitutional portions of the ordinance's construction, despite Terminiello's failure to object specifically to the instruction.

Holding

No. The conviction had to be reversed because the general verdict may have rested on an unconstitutional ground.

Reasoning

Under Stromberg v. California, a general verdict cannot stand when one possible basis for conviction is unconstitutional and the record does not reveal which basis the jury adopted. Here, the jury was authorized to find guilt under several theories, including theories that unconstitutionally punished speech for inviting dispute or causing unrest.

Terminiello's failure to take a formal exception to the instruction did not alter the result. He consistently argued that applying the ordinance to his speech violated the Federal Constitution, and the challenged instruction supplied the state-law meaning that governed that application.

The Illinois appellate courts' apparent assumption that Terminiello was punished only for fighting words could not cure the defect. The actual jury charge was broader, and the general verdict gave no assurance that the conviction rested solely on a valid fighting-words theory.

Because the invalid grounds were part of the ordinance as construed and submitted to the jury, the Court did not need to decide whether Terminiello's particular words were fighting words. The uncertainty inherent in the general verdict was itself dispositive.

Dissents

Chief Justice Vinson

Reasoning

Chief Justice Vinson dissented, arguing that the Court, in the Chief Justice's view, reversed on an issue that neither party had raised. Terminiello did not object to the sentence in the jury charge at trial, did not present that objection in either Illinois appellate court, and did not include it in his petition or briefing before the Supreme Court.

Illinois's reviewing courts construed the ordinance as punishing fighting words and affirmed on that understanding. Chief Justice Vinson therefore rejected the majority's premise that those courts had approved the broader language in an unnoticed jury instruction.

He would not decide the merits of the fighting-words question because the Court did not reach it. But he maintained that, if the instruction's constitutional validity had actually been presented to the Illinois courts, those courts might themselves have corrected the error.

Justice Frankfurter

Reasoning

Justice Frankfurter argued that the Court lacked authority to reverse a state-court judgment on a federal claim that was not presented to or denied by the state courts. In his view, Terminiello's counsel not only failed to raise the instructional issue but expressly disclaimed reliance on it before the Supreme Court.

He distinguished Stromberg because, there, the defendant consistently attacked a specific unconstitutional statutory clause in the state courts and before the Supreme Court. Stromberg established that a general verdict fails when a properly preserved constitutional challenge invalidates one of several submitted grounds; it did not authorize the Court to discover and decide an unraised claim.

The limits on Supreme Court review of state judgments protect the proper relationship between state and federal courts. The Court is a reviewing tribunal, Justice Frankfurter stressed, not an institution free to search the record for a federal error the state courts had no opportunity to address.

Justice Frankfurter also agreed with Justice Jackson that jury instructions must be assessed in their practical setting rather than treated as abstract language detached from the evidence and circumstances of the speech.

Justice Jackson

Reasoning

Justice Jackson maintained that the majority treated the case as if Terminiello had delivered an abstract political address to a calm audience. In fact, the speech occurred amid a volatile confrontation between a hostile crowd outside, a sympathetic audience inside, and police struggling to prevent violence.

Read in context, the jury instruction did not authorize punishment for disagreement or unrest in the abstract. It permitted conviction if Terminiello's particular speech added fuel to an already dangerous situation and helped produce an immediate breach of the peace.

The evidence, in Justice Jackson's account, supported a finding of a clear and present danger of riot and violence. Terminiello knew of the disorder outside, used inflammatory language against his opponents, and delivered remarks that drew hostile and violent responses from people inside the auditorium as well.

Justice Jackson emphasized that freedom of speech depends on an organized society capable of maintaining public order. Local police had protected Terminiello's ability to reach the hall, speak, and leave safely; state and municipal authorities therefore retained power to punish speech that, in context, deliberately and immediately provoked violent disorder.

He cautioned that liberty and order are not competing absolutes. In his view, disabling local officials from controlling ideological street battles would ultimately endanger both public order and the practical freedom of expression that law enforcement makes possible.