Beauharnais v. The People of the State of Illinois Petition for Rehearing

    IN THE

^uprTutT ( ta r t  nf tfyr Imfrtt #tatrn
October Term, 1951

No. 118

JOSEPH BEAUHARNAIS,

v.
Petitioner,

THE PEOPLE OF THE STATE OF ILLINOIS.

PETITION FOR REHEARING

Alfred A. Albert, 
Attorney for Petitioner, 

c/o American Civil Liberties Union,
170 Fifth Avenue, 

New York, New York.

Of Counsel,
T hukgood M a r sh a ll ,
20 West 40th Street,
New York, New York.
H erbert Monte Levy,
c/o American Civil Liberties Union,
170 Fifth Avenue,
New York, New York.

Dated: New York, N. Y., May 9, 1952.



I N D E X

PAGE
Introductory ................................................................ 1

Point I—The Court decided that utterances libelling 
groups were not within the area of constitutionally 
protected speech, though this proposition had never 
been pressed upon it, and though the point was a 
novel one never before decided by this Court......  2

(A) Decision on an issue of such momentous 
implications not pressed before the Court should
not be made without full argument ...................  2

(1) This question was never pressed before
the Court ...... ................ ..................... ......  2

(2) The question thus decided without argu­
ment is a monumental one ........................  4

(B) The decision on this point is the first
holding of this Court on this issue; while sup­
portable by dicta it is directly contrary to a 
more recent holding by this Court and impliedly 
overruled three major recent decisions .............. 5

Conclusion ............................................................................ 9

Certificate of Counsel .....................................   9

T a b le  o f  C ases C ited

American Communications Assn. v. Bonds, 339 U. S.
382 ................................................................      6

Cantwell v. Connecticut, 310 U. S. 296 ..... ...............6-7, 8
Commonwealth v. Feiqenbaum, 166 Pa. Super. 120,

70 A. 2d 389 ......... ...................... ........„„................ 6
Commonwealth v. Gordon, 66 Pa. Dist. & Co. E. 101 

(1949) (same) .........      6



11

PAGE
Dennis v. U. 8., 340 U. S. 494 ...................................  6
Doubleday & Co., Inc. v. New York, 335 U. S. 848..... 6
Doubleday and Co., Inc. v. New York, No. 11, Octo­

ber Term 1948 (same) ..............................................  6
Douglas v. City of Jeanette, 319 U. S. 157 (1943)......  7, 8
Runs v. N. Y., 340 IT. S. 290 .....................................  7, 8
Terminiello v. City of Chicago, 337 U. S. 1 (1949)

3,4, 7, 8

C onstitutional Provisions, S ta tu te and  
C om m entaries C ited

United States Constitution:
First Amendment .................................................  7, 8
Fourteenth Amendment ....................... ............... 2, 8

Illinois Penal Code, Section 224a of Division 1 ..........  1
Arguments before the (Supreme) Court:

" 20 U. S. Law Week 3143, col. 2 ..........................  5
20 U. S. Law Week 3141 ff.  .............................  3



IN THE

^uprem? Court of tlir luttrl* #tatru
October T erm, 1951

No. 118

-----------------  IBM ♦ — . -----------------

J oseph B eatjharnais,
Petitioner,

v.

T he P eople oe the State of I llinois.

PETITIO N  FOR REHEARING

To the Honorable, the Chief Justice and the Associate
Justices of the Supreme Court of the United States:
Tour petitioner, Joseph Beauharnais, respectfully peti­

tions for a rehearing of the decision of this Court in this 
case on April 28, 1952, which affirmed petitioner’s con­
viction for violation of Section 224a of Division 1 of the 
Illinois Penal Code.

This petition requests a rehearing solely on the holding 
of this Court that, “ Libellous utterances, not being within 
the area of constitutionally protected speech, it is unneces­
sary, either for us or for the State courts, to consider 
the issues behind the phrase ‘clear and present danger.’ ” 
P. 16, Slipsheet Opinion. (All page references hereinafter 
are to the Slipsheet Opinion unless otherwise indicated.)

We do not ask for a rehearing on this Court’s decision 
that the standards laid down by the statute are sufficiently



2

definite to meet the constitutional requirements of the 
due process clause of the Fourteenth Amendment. This 
question was presented to the Court by the parties’ briefs, 
was argued thoroughly at the oral argument; though the 
decision held against us, we would deem a rehearing on 
this point inappropriate. However, the contention that 
utterances libelling groups are not within the area of 
constitutionally protected speech was not pressed on the 
Court in briefs or in oral argument. We suggest that a 
rehearing is appropriate under such circumstances, par­
ticularly when as here, the holding is not merely a re­
affirmation or new application of a prior holding, but is 
completely novel. We suggest that a rehearing is par­
ticularly appropriate here because, although this holding 
of this Court is supportable by older clicta, there is other 
and later dicta which is contra, and because the decision 
of this Court has impliedly overruled prior decisions of 
this Court in at least three major cases, and has over­
ruled this Court’s express decision in another major case.

PO IN T I

The Court decided th a t utterances libelling groups 
were not w ithin the area of constitutionally protected 
speech, though this proposition had  never been pressed 
upon it, and  though the point was a novel one never 
before decided by this Court.

(A )  D ecision  on an  issue o f  such  m om entous im p lica ­
tions not p ressed  b efo re  th e  Court shou ld  not b e m ad e  
w ith ou t fu ll argum ent.

( 1 )  T his question  w a s n ever  p ressed  b efo re  th e  Court.

Petitioner’s brief took the position that the contents 
of petitioner’s diatribe were constitutionally protected.



3

Respondent denied this only formally in two short para­
graphs without citation of a single case in point (Re­
spondent’s Brief, p. 4). Counsel recollects that this 
proposition of law was not denied by Illinois on the oral 
argument, nor did any of the Justices of this Court take 
petitioner’s counsel to task for having alleged this propo­
sition. See Arguments before the (Supreme) Court, 20 
IT. S. Law Week 3141 If. The Supreme Court of Illinois 
indeed had held that the clear and present danger was 
applicable (R. 39-40 ).1

The Court thus decided a question not argued before 
it. We need look no further than the opinion in this case 
for authority that this Court should not decide questions 
not pressed upon it by the parties. This Court stated 
on page 14:

“ Neither by proffer of evidence, requests for in­
structions, motion before or after verdict did the 
defendant seek to justify his utterance as ‘fair 
comment’ or as privileged. Nor has the defendant 
urged as a ground for reversing his conviction in 
this Court that his opportunity to make those 
defenses was denied below. And so, whether a 
prosecution for libel of a racial or religious group 
is unconstitutionally invalid where the State did 
deny the defendant such opportunities is not before 
us.”

Three of the Justices of the Court who subscribe to the 
majority opinion in the case at bar (Mr. Chief Justice 
Vinson, Mr. Justice Frankfurter, and Mr. Justice Burton) 
vigorously contended in Terminiello that a decision of

1 Our contentions were that (1) the test was improperly applied 
(2) in the absence of a finding by the trial court or jury of the exist­
ence of a clear and present danger.



4

this Court on the basis of points not raised before it in 
any stage of the proceedings nor raised below was im­
proper. Terminiello v. City of Chicago, 337 U. S. 1 (1949).

( 2 )  T h e  qu estion  thus d ec id ed  w ith ou t argum ent is a  
m onum ental one.

This decision sustains the constitutionality of all state 
criminal libel laws, individual and group, in the absence of 
a clear and present danger.2 All this without a hearing 
having been had on this issue, and without any prior 
holding by the Court to this effect. Counsel for peti­
tioner share the fears of Mr. Justice Black and Mr. Justice 
Douglas that a weapon has now been given to enemies of 
minority groups. Without a requirement of a finding of 
a clear and present danger there is no way in which this 
Court could ever overturn a conviction for criminal libel 
in any of the instances set forth on page 8 of Mr. Justice 
Black’s opinion and page 3 of Mr. Justice Douglas’ 
opinion.

The majority was careful to point out that it would 
not decide the issue of constitutionality of outlawry of 
libels of political parties. But of course, political parties 
are not exempt from being prosecuted under the Illinois 
group libel law here sustained. Thus political advocacy 
might be restricted even under this decision. If libellous 
utterances are not within the area of constitutionally pro­
tected speech as this Court holds, one may inquire whether 
any free speech question would be raised if libel of political 
parties were outlawed. While this Court points out that 
in such a situation “ the whole doctrine of fair comment 
as indispensable to the democratic political process would 
come into play” (p. 13, fn. 18), this Court also pointed

2 A group libel law has been introduced into the House of Repre­
sentatives since this Court’s decision in this case.



5

out that the defense of fair comment was protected by the 
Illinois law here (p. 14, fn. 19). Thus the one distinction 
suggested by the Court is an irrelevant one. Certainly 
“ the whole doctrine of fair comment as indispensable to 
the democratic political process” is involved in this statute 
since it penalizes utterances even when made by political 
parties. We can see no basis upon which this Court could 
later hold constitutional a law outlawing libels of political 
parties unless it were to do so on the due process ground 
that it would be “ a wilful and purposeless restriction 
unrelated to the peace and well-being of the State” (p. 8). 
In view of the long history of political conflict in the state 
of Illinois, we find it difficult to comprehend how this Court 
could upset such a statute of Illinois if it came before it. 
We point out that Illinois conceded on the oral argument 
that if this statute would be upheld, a statute outlawing 
libels of political parties would also have to be held con­
stitutional.3

(B )  T h e  d ec is io n  on  th is  point is th e  first h o ld in g  o f  
th is  Court on  th is  is su e ; w h ile  su p p ortab le  by d ic ta  i t  is 
d ir e c t ly  c o n tr a ry  to a  m ore r e c e n t  h o ld in g  b y  th is Court 
a n d  im p lie d ly  o v e r ru le d  th r e e  m ajor recen t decisions.

We do not deny that clicta exist to the effect that libel­
lous words—directed against an individual—can be crim­
inally punished without raising a constitutional problem.4

3 In this connection it is interesting to note that while Illinois 
was asked by Mr. Justice Black to include, in its memorandum on 
labor and racial violence in Illinois, the record of political riots (20 
U. S. Law Week 3143, col. 2), no such record was included.

4 As this Court stated, it has also been stated in dictum that 
obscenity is exempted from constitutional protection. But this Court 
was in error when it stated that “Certainly no one would contend 
that obscene speech * * * may be punished only upon a showing 
of such circumstances (of clear and present danger).” P. 16. For 
it was squarely held by Judge Curtis Bok that obscenity could not be



6

However, the most recent dicta on the subject are directly 
contra. Thus, in American Communications Assn. v. 
Bonds, 339 U. S. 382, at 412, Mr. Chief Justice Vinson 
stated that an individual is “ permitted to advocate what 
he will” (emphasis supplied) in the absence of the exis­
tence of a clear and present danger, and this Court in 
Dennis v. U. S., 340 U. S. 494 at 510, adopted the rule as 
laid down below that “In each case fcourts] must ask 
whether the gravity of the ‘evil’, discounted by its im­
probability, justified such invasion of free speech as is 
necessary to avoid the dangers.” (Emphasis supplied.) 
While agreeing with the majority in Dennis holding that 
advocacy of revolution is constitutionally protected, we 
wonder upon what rationale such speech is protected by 
constitutional guarantees whereas libellous statements of 
groups are not.

Moreover, the decision in this case is directly contra 
to this Court’s decision in Cantwell v. Connecticut, 310
punished except upon a showing of such circumstances. Common­
wealth v. Gordon, 66 Pa. Dist. & Co. R. 101 (1949). This test was 
expressly approved and Judge Bok’s decision upheld by the Superior 
Court of Pennsylvania sub nom. Commonwealth v. Feigenbaum, 
166 Pa. Super. 120, 70 A. 2d 389. The Supreme Court of Penn­
sylvania denied leave to appeal in an unreported per curiam order 
on March 30, 1950, which read as follows: “Allocatur refused, with 
out, however, approving the test of ‘clear and present danger’ as ap­
plied to alleged obscene literature adopted by Judge Bok in the 
Quarter Sessions and apparently approved by the Superior Court.” 
It should be noted that the Court did not disapprove of the test.

In addition, it was contended before this Court in a brief of the 
American Civil Liberties Union as amicus curiae in Doubleday and 
Co., Inc. v. New York, No. 11, October Term 1948, that obscene 
speech could not be punished except upon a showing of such circum­
stances. Whether this Court ever ruled upon this contention is 
impossible to say, for the decision below was affirmed by an equally 
divided Court without opinion. Doubleday & Co., Inc. v. New York, 
335 U. S. 848. Of course, the question of the limitation of obscenity 
by the clear and present danger test need not be decided in this case 
in any event.



7

U. S. 296, holding that language denouncing the Boman 
Catholic Church as “ an instrument of Satan” was pro­
tected by the First Amendment. Said this Court at 
page 310,

“ In the realm of religious faith, and that of political 
belief, sharp differences arise. In both fields the 
tenets of one may seem the rankest error to his 
neighbor. To persuade others to his own point of 
view the pleader, as we know, at times, resorts to 
exaggeration, to vilification * * *, and even to
false statement. But the people of this nation have 
ordained in the light of history, that, in spite of 
the probability of excesses and abuses these liber­
ties are, in the long view, essential to enlightened 
opinion and right conduct on the part of the citizens 
of a democracy.” (Emphasis supplied.)

In Douglas v. City of Jeanette, 319 U. S. 157 (1943), the 
constitutional guarantee of free speech was held to apply 
to a description of the Boman Catholic Church organiza­
tion as a “ harlot” .

In Kunz v. N. Y., 340 U. S. 290, this Court held that the 
guarantee of the First Amendment applied to an address 
delivered on the streets of New York vilifying Jews as 
“ Christ-Killers.”

In Terminiello v. City of Chicago, 337 U. S. 1 (1949), 
this Court held the constitutional guarantee of free speech 
applicable to language much more libellous of racial and 
religious groups than the language in question here. For 
example, as quoted from the dissenting opinion of Mr. 
Justice Jackson, Terminiello stated, “ I said, ‘Fellow 
Christians’ and I suppose there are some of the scum 
got in by mistake, * * * the slimy scum.” He accused 
the Jews of wanting to inject syphilis and other diseases 
into non-Christians. Jews were called Communistic. Id.



8

at 17, 20. This Court held this speech to be within the pro­
tection of the First Amendment.

Thus the Court has on these four occasions held words 
libellous of racial and religious groups to be protected by 
the First and Fourteenth Amendments. It never held 
nor stated otherwise. Whatever the dicta of this Court 
on the constitutionality of criminal libel laws directed 
against libels of individuals, this Court never before 
passed upon whether criminal libel laws directed against 
members of groups are constitutional, but in each of the 
cases listed above—in Cantwell, in Kunz, in Douglas, in 
Terminiello—it consistently upheld the constitutional pro­
tection of free speech for words libellous of racial and 
religious groups, whatever the form of the statute under 
which the case arose.5 The decision in the instant case 
thus necessarily overrules each of the four mentioned 
above. We submit that irrespective of whether or not 
such an overruling is now justified, it should not be done 
without any argument on the issue having been presented 
to the Court. We submit that a rehearing is most cer­
tainly necessary in this case.

5 The Court analogized the prevention of libellous utterances to 
that of obscene speech. We submit that the analogy is without foun­
dation. Obscenity never touches upon the political or social issues 
of the day. But group libel most certainly does. Comments such as 
Beauharnais engaged in were, while thoroughly repulsive to the 
members of this Court and to all counsel involved in the case before 
it, none the less comments on the burning political and social issues 
of the day. The same cannot be said for obscenity.



9

CONCLUSION
This petition for a rehearing should be granted and 

the judgment below reversed.

Dated: New York, New York 
May 9, 1952.

Respectfully submitted,

Alfred A. Albert, 
Attorney for Petitioner, 

c/o American Civil Liberties Union,
170 Fifth Avenue, 

New York, New York.
Of Counsel,

T httrgood Marshall,
20 West 40th Street,
New York, N. Y.
H erbert Monte L evy,
c/o American Civil Liberties Union,
170 Fifth Avenue,
New York, New York.

Certificate of Counsel

Alfred A. Albert, T httrgood Marshall and H erbert 
Monte Levy, counsel for petitioner in this case, hereby 
certify  tha t this petition for rehearing is presented in 
good faith  and not for delay.

Alfred A. Albert,

T hurgood Marshall,

H erbert Monte Levy,
Counsel for Petitioner.