Winters v. New York

Mr. Justice Frankfurter,

joined by

Mr. Justice Jackson and Mr. Justice Burton, dissenting.

By today’s decision the Court strikes down an enactment that has been part of the laws of New York for more than sixty years, 1 and New York is but one of twenty States having such legislation. Four more States *521 have statutes of like tenor which are brought into question by this decision, but variations of nicety preclude one from saying that these four enactments necessarily fall within the condemnation of this decision. Most of this legislation is also more than sixty years old. The latest of the statutes which cannot be differentiated from New York’s law, that of the State of Washington, dates from 1909. It deserves also to be noted that the legislation was judicially applied and sustained nearly fifty years ago. See State v. McKee, 73 Conn. 18 , 46 A. 409 . Nor is this an instance where the pressure of proximity or propaganda led to the enactment of the same measure in a concentrated region of States. The impressiveness of the number of States which have this law on their statute *522 books is reinforced by their distribution throughout the country and the time range of the adoption of the measure. 2 Cf. Hughes, C. J., in West Coast Hotel Co. v. Parrish, 300 U. S. 379, 399 .

These are the statutes that fall by this decision: 3

1. Gen. Stat. Conn. (1930) c. 329, § 6245, derived from L. 1885, c. 47, § 2. *

2. Ill. Ann. Stat. (Smith-Hurd) c. 38, § 106, derived from Act of June 3, 1889, p. 114, § 1 (minors).

3. Iowa Code (1946) § 725.8, derived from 21 Acts, Gen. Assembly, c. 177, § 4 (1886) (minors).

4. Gen. Stats. Kans. (1935) § 21-1102, derived from L. 1886, c. 101, § 1.

5. Ky. Rev. Stat. (1946) § 436.110, derived from L. 1891-93, c. 182, § 217 (1893) (similar).

6. Rev. Stat. Maine (1944) c. 121, § 27, derived from Acts and Resolves 1885, c. 348, § 1 (minors).

7. Ann. Code Md. (1939) Art. 27, §496, derived from L. 1894, c. 271, § 2.

8. Ann. Laws Mass. (1933) c. 272, § 30, derived from Acts and Resolves 1885, c. 305 (minors).

9. Mich. Stat. Ann. (1938) § 28.576, derived from L. 1885, No. 138.

10. Minn. Stat. (1945) § 617.72, derived from L. 1885, c. 268, § 1 (minors).

11. Mo. Rev. Stat. (1939) § 4656, derived from Act of April 2, 1885, p. 146, § 1 (minors).

*523 12. Rev. Code Mont. (1935) § 11134, derived from Act of March 4,1891, p. 255, § 1 (minors).

13. Rev. Stat. Neb. (1943) § 28-924, derived from L. 1887, c. 113, § 4 (minors).

14. N. Y. Consol. L. (1938) Penal Law, Art. 106, § 1141 (2), derived from L. 1884, c. 380.

15. N. D. Rev. Code (1943) § 12-2109, derived from L. 1895, c. 84, § 1 (similar).

16. Ohio Code Ann. (Throckmorton, 1940) § 13035, derived from 82 Sess. L. 184 (1885) (similar).

17. Ore. Comp. L. Ann. (1940) § 23-924, derived from Act of Feb. 25, 1885, p. 126 (similar).

18. Pa. Stat. Ann. (1945) Tit. 18, § 4524, derived from L. 1887, P. L. 38, § 2.

19. Rev. Stat. Wash. (Remington, 1932) § 2459 (2), derived from L. 1909, c. 249, § 207 (2).

20. Wis. Stat. (1945) § 351.38 (4), derived from L. 1901, c. 256.

The following statutes are somewhat similar, but may not necessarily be rendered unconstitutional by the Court’s decision in the instant case:

1. Colo. Stat. Ann. (1935) c. 48, § 217, derived from Act of April 9,1885, p. 172, § 1.

2. Ind. Stat. Ann. (1934) § 2607, derived from L. 1895, c. 109.

3. S. D. Code (1939) § 13.1722 (4), derived from L. 1913, c. 241, § 4.

4. Tex. Stat. (Vernon, 1936), Penal Code, Art. 527, derived from L. 1897, c. 116.

This body of laws represents but one of the many attempts by legislatures to solve what is perhaps the most persistent, intractable, elusive, and demanding of all problems of society — the problem of crime, and, more particularly, of its prevention. By this decision *524 the Court invalidates such legislation of almost half the States of the Union. The destructiveness of the decision is even more far-reaching. This is not one of those situations where power is denied to the States because it belongs to the Nation. These enactments are invalidated on the ground that they fall within the prohibitions of the “vague contours” of the Due Process Clause. The decision thus operates equally as a limitation upon Congressional authority to deal with crime, and, more especially, with juvenile delinquency. These far-reaching consequences result from the Court’s belief that what New York, among a score of States, has prohibited, is so empty of meaning that no one desirous of obeying the law could fairly be aware that he was doing that which was prohibited.

Fundamental fairness of course requires that people be given notice of what to avoid. If the purpose of a statute is undisclosed, if the legislature’s will has not been revealed, it offends reason that punishment should be meted out for conduct which at the time of its commission was not forbidden to the understanding of those who wished to observe the law. This requirement of fair notice that there is a boundary of prohibited conduct not to be overstepped is included in the conception of “due process of law.” The legal jargon for such failure to give forewarning is to say that the statute is void for “indefiniteness.”

But “indefiniteness” is not a quantitative concept. It is not even a technical concept of definite components. It is itself an indefinite concept. There is no such thing as “indefiniteness” in the abstract, by which the sufficiency of the requirement expressed by the term may be ascertained. The requirement is fair notice that conduct may entail punishment. But whether notice is or is not “fair” depends upon the subject matter to which it relates. Unlike the abstract stuff of mathematics, or *525 the quantitatively ascertainable elements of much of natural science, legislation is greatly concerned with the multiform psychological complexities of individual and social conduct. Accordingly, the demands upon legislation, and its responses, are variable and multiform. That which may appear to be too vague and even meaningless as to one subject matter may be as definite as another subject-matter of legislation permits, if the legislative power to deal with such a subject is not to be altogether denied. The statute books of every State are full of instances of what may look like unspecific definitions of crime, of the drawing of wide circles of prohibited conduct.

In these matters legislatures are confronted with a dilemma. If a law is framed with narrow particularity, too easy opportunities are afforded to nullify the purposes of the legislation. If the legislation is drafted in terms so vague that no ascertainable line is drawn in advance between innocent and condemned conduct, the purpose of the legislation cannot be enforced because no purpose is defined. It is not merely in the enactment of tax measures that the task of reconciling these extremes— of avoiding throttling particularity or unfair generality— is one of the most delicate and difficult confronting legislators. The reconciliation of these two contradictories is necessarily an empiric enterprise largely depending on the nature of the particular legislative problem.

What risks do the innocent run of being caught in a net not designed for them? How important is the policy of the legislation, so that those who really like to pursue innocent conduct are not likely to be caught unaware? How easy is it to be explicitly particular? How necessary is it to leave a somewhat penumbral margin but sufficiently revealed by what is condemned to those who do not want to sail close to the shore of questionable conduct? These and like questions confront legislative *526 draftsmen. Answers to these questions are not to be found in any legislative manual nor in the work of great legislative draftsmen. They are not to be found in the opinions of this Court. These are questions of judgment, peculiarly within the responsibility and the competence of legislatures. The discharge of that responsibility should not be set at naught by abstract notions about “indefiniteness.”

The action of this Court today in invalidating legislation having the support of almost half the States of the Union rests essentially on abstract notions about “indefiniteness.” The Court's opinion could have been written by one who had never read the issues of “Headquarters Detective” which are the basis of the prosecution before us, who had never deemed their contents as relevant to the form in which the New York legislation was cast, had never considered the bearing of such “literature” on juvenile delinquency, in the allowable judgment of the legislature. Such abstractions disregard the considerations that may well have moved and justified the State in not being more explicit than these State enactments are. Only such abstract notions would reject the judgment of the States that they have outlawed what they have a right to outlaw, in the effort to curb crimes of lust and violence, and that they have not done it so recklessly as to occasion real hazard that other publications will thereby be inhibited, or also be subjected to prosecution.

This brings our immediate problem into focus. No one would deny, I assume, that New York may punish crimes of lust and violence. Presumably also, it may take appropriate measures to lower the crime rate. But he must be a bold man indeed who is confident that he knows what causes crime. Those whose lives are devoted to an understanding of the problem are certain only that they are uncertain regarding the role of the *527 various alleged “causes” of crime. Bibliographies of criminology reveal a depressing volume of writings on theories of causation. See, e. g., Kuhlman, A Guide to Material on Crime and Criminal Justice (1929) Item Nos. 292 to 1211; Culver, Bibliography of Crime and Criminal Justice (1927-1931) Item Nos. 877-1475, and (1932-1937) Item Nos. 799-1560. Is it to be seriously questioned, however, that the State of New York, or the Congress of the United States, may make incitement to crime itself an offense? He too would indeed be a bold man who denied that incitement may be caused by the written word no less than by the spoken. If “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” (Holmes, J., dissenting in Lochner v. New York, 198 U. S. 45, 75 ), neither does it enact the psychological dogmas of the Spencerian era. The painful experience which resulted from confusing economic dogmas with constitutional edicts ought not to be repeated by finding constitutional barriers to a State’s policy regarding crime, because it may run counter to our inexpert psychological assumptions or offend our presuppositions regarding incitements to crime in relation to the curtailment of utterance. This Court is not ready, I assume, to pronounce on causative factors of mental disturbance and their relation to crime. Without formally professing to do so, it may actually do so by invalidating legislation dealing with these problems as too “indefinite.”

Not to make the magazines with which this case is concerned part of the Court’s opinion is to play “Hamlet” without Hamlet. But the Court sufficiently summarizes one aspect of what the State of New York here condemned when it says “we can see nothing of any possible value to society in these magazines.” From which it jumps to the conclusion that, nevertheless, “they are as much entitled to the protection of free speech as *528 the best of literature.” Wholly neutral futilities, of course, come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons. But to say that these magazines have “nothing of any possible value to society” is only half the truth. This merely denies them goodness. It disregards their mischief. As a result of appropriate judicial determination, these magazines were found to come within the prohibition of the law against inciting “violent and depraved crimes against the person,” and the defendant was convicted because he exposed for sale such materials. The essence of the Court’s decision is that it gives publications which have “nothing of any possible value to society” constitutional protection but denies to the States the power to prevent the grave evils to which, in their rational judgment, such publications give rise. The legislatures of New York and the other States were concerned with these evils and not with neutral abstractions of harmlessness. Nor was the New York Court of Appeals merely resting, as it might have done, on a deep-seated conviction as to the existence of an evil and as to the appropriate means for checking it. That court drew on its experience, as revealed by “many recent records” of criminal convictions before it, for its understanding of the practical concrete reasons that led the legislatures of a score of States to pass the enactments now here struck down.

The New York Court of Appeals thus spoke out of extensive knowledge regarding incitements to crimes of violence. In such matters, local experience, as this Court has said again and again, should carry the greatest weight against our denying a State authority to adjust its legislation to local needs. But New York is not peculiar in concluding that “collections of pictures or stories of criminal deeds of bloodshed or lust unquestionably can be so massed as to become vehicles for inciting violent and *529 depraved crimes against the person.” 294 N. Y. at 550. A recent murder case before the High Court of Australia sheds light on the considerations which may well have induced legislation such as that now before us, and on the basis of which the New York Court of Appeals sustained its validity. The murder was committed by a lad who had just turned seventeen years of age, and the victim was the driver of a taxicab. I quote the following from the opinion of Mr. Justice Dixon: “In his evidence on the voir dire Graham [a friend of the defendant and apparently a very reliable witness] said that he knew Boyd Sinclair [the murderer] and his moods very well and that he just left him; that Boyd had on a number of occasions outlined plans for embarking on a life of crime, plans based mainly on magazine thrillers which he was reading at the time. They included the obtaining of a motor car and an automatic gun.” Sinclair v. The King, 73 Comm. L. R. 316, 330.

“Magazine thrillers” hardly characterizes what New York has outlawed. New York does not lay hold of publications merely because they are “devoted to and principally made up of criminal news or police reports or accounts of criminal deeds, regardless of the manner of treatment.” So the Court of Appeals has authoritatively informed us. 294 N. Y. at 549. The aim of the publication must be incitation to “violent and depraved crimes against the person” by so massing “pictures and stories of criminal deeds of bloodshed or lust” as to encourage like deeds in others. It would be sheer dogmatism in a field not within the professional competence of judges to deny to the New York legislature the right to believe that the intent of the type of publications which it has proscribed is to cater to morbid and immature minds— whether chronologically or permanently immature. It would be sheer dogmatism to deny that in some instances, *530 as in the case of young Boyd Sinclair, deeply embedded, unconscious impulses may be discharged into destructive and often fatal action.

If legislation like that of New York “has been enacted upon a belief of evils that is not arbitrary we cannot measure their extent against the estimate of the legislature.” Tanner v. Little, 240 U. S. 369, 385 . The Court fails to give enough force to the influence of the evils with which the New York legislature was concerned “upon conduct and habit, not enough to their insidious potentialities.” Rast v. Van Deman & Lewis Co., 240 U. S. 342, 364 . The other day we indicated that, in order to support its constitutionality, legislation need not employ the old practice of preambles, nor be accompanied by a memorandum of explanation setting forth the reasons for the enactment. See Woods v. Cloyd W. Miller Co., 333 U. S. 138, 144 . Accordingly, the New York statute, when challenged for want of due process on the score of “indefiniteness,” must be considered by us as though the legislature had thus spelled out its convictions and beliefs for its enactment:

Whereas, we believe that the destructive and adventurous potentialities of boys and adolescents, and of adults of weak character or those leading a drab existence are often stimulated by collections of pictures and stories of criminal deeds of bloodshed or lust so massed as to incite to violent and depraved crimes against the person; and

Whereas, we believe that such juveniles and other susceptible characters do in fact commit such crimes at least partly because incited to do so by such publications, the purpose of which is to exploit such susceptible characters; and

Whereas, such belief, even though not capable of statistical demonstration, is supported by our experience as well as by the opinions of some specialists *531 qualified to express opinions regarding criminal psychology and not disproved by others; and

Whereas, in any event there is nothing of possible value to society in such publications, so that there is no gain to the State, whether in edification or enlightenment or amusement or good of any kind; and

Whereas, the possibility of harm by restricting free utterance through harmless publications is too remote and too negligible a consequence of dealing with the evil publications with which we are here concerned ;

Be it therefore enacted that—

Unless we can say that such beliefs are intrinsically not reasonably entertainable by a legislature, or that the record disproves them, or that facts of which we must take judicial notice preclude the legislature from entertaining such views, we must assume that the legislature was dealing with a real problem touching the commission of crime and not with fanciful evils, and that the measure was adapted to the serious evils to which it was addressed. The validity of such legislative beliefs or their importance ought not to be rejected out of hand.

Surely this Court is not prepared to say that New York cannot prohibit traffic in publications exploiting “criminal deeds of bloodshed or lust” so “as to become vehicles for inciting violent and depraved crimes against the person.” Laws have here been sustained outlawing utterance far less confined. A Washington statute, directed against printed matter tending to encourage and advocate disrespect for law, was judged and found not wanting on these broad lines:

“We understand the state court by implication at least to have read the statute as confined to encouraging an actual breach of law. Therefore the argument that this act is both an unjustifiable restriction of liberty and too vague for a criminal law must fail. *532 It does not appear and is not likely that the statute will be construed to prevent publications merely because they tend to produce unfavorable opinions of a particular statute or of law in general. In this present case the disrespect for law that was encouraged was disregard of it — an overt breach and technically criminal act. It would be in accord with the usages of English to interpret disrespect as manifested disrespect, as active disregard going beyond the line drawn by the law. That is all that has happened as yet, and we see no reason to believe that the statute will be stretched beyond that point.

“If the statute should be construed as going no farther than it is necessary to go in order to bring the defendant within it, there is no trouble with it for want of definiteness.” Fox v. Washington, 236 U. S 273, 277.

In short, this Court respected the policy of a State by recognizing the practical application which the State court gave to the statute in the case before it. This Court rejected constitutional invalidity based on a remote possibility that the language of the statute, abstractly considered, might be applied with unbridled looseness.

Since Congress and the States may take measures against “violent and depraved crimes,” can it be claimed that “due process of law” bars measures against incitement to such crimes? But if they have power to deal with incitement, Congress and the States must be allowed the effective means for translating their policy into law. No doubt such a law presents difficulties in draftsmanship where publications are the instruments of incitement. The problem is to avoid condemnation so unbounded that neither the text of the statute nor its subject matter affords “a standard of some sort” (United States v. Cohen Grocery Co., 255 U. S. 81, 92 ). Legislation must put people on notice as to the kind of conduct *533 f-rom which to refrain. Legislation must also avoid so tight a phrasing as to leave the area for evasion ampler than that which is condemned. How to escape, on the one hand, having a law rendered futile because no standard is afforded by which conduct is to be judged, and, on the other, a law so particularized as to defeat itself through the opportunities it affords for evasion, involves an exercise of judgment which is at the heart of the legislative process. It calls for the accommodation of delicate factors. But this accommodation is for the legislature to make and for us to respect, when it concerns a subject so clearly within the scope of the police power as the control of crime. Here we are asked to declare void the law which expresses the balance so struck by the legislature, on the ground that the legislature has not expressed its policy clearly enough. That is what it gets down to.

What were the alternatives open to the New York legislature? It could of course conclude that publications such as those before us could not “become vehicles for inciting violent and depraved crimes.” But surely New York was entitled to believe otherwise. It is not for this Court to impose its belief, even if entertained, that no “massing of print and pictures” could be found to be effective means for inciting crime in minds open to such stimulation. What gives judges competence to say that while print and pictures may be constitutionally outlawed because judges deem them “obscene,” print and pictures which in the judgment of half the States of the Union operate as incitements to crime enjoy a constitutional prerogative? When on occasion this Court has presumed to act as an authoritative faculty of chemistry, the result has not been fortunate. See Burns Baking Co. v. Bryan, 264 U. S. 504 , where this Court ventured a view of its own as to what is reasonable “tolerance” in breadmaking. Considering the extent to which the whole domain of psychological inquiry has only recently *534 been transformed and how largely the transformation is still in a pioneer stage, I should suppose that the Court would feel even less confidence in its views on psychological issues. At all events, it ought not to prefer its psychological views — for, at bottom, judgment on psychological matters underlies the legal issue in this case — to those implicit in an impressive body of enactments and explicitly given by the New York Court of Appeals, out of the abundance of its experience, as the reason for sustaining the legislation which the Court is nullifying.

But we are told that New York has not expressed a policy, that what looks like a law is not a law because it is so vague as to be meaningless. Suppose then that the New York legislature now wishes to meet the objection of the Court. What standard of definiteness does the Court furnish the New York legislature in finding indefiniteness in the present law? Should the New York legislature enumerate by name the publications which in its judgment are “inciting violent and depraved crimes”? Should the New York legislature spell out in detail the ingredients of stories or pictures which accomplish such “inciting”? What is there in the condemned law that leaves men in the dark as to what is meant by publications that exploit “criminal deeds of bloodshed or lust” thereby “inciting violent and depraved crimes”? What real risk do the Conan Doyles, the Edgar Allen Poes, the William Rougheads, the ordinary tribe of detective story writers, their publishers, or their booksellers run?

Insofar as there is uncertainty, the uncertainty derives not from the terms of condemnation, but from the application of a standard of conduct to the varying circumstances of different cases. The Due Process Clause does not preclude such fallibilities of judgment in the administration of justice by men. Our penal codes are loaded with prohibitions of conduct depending on ascertainment through fallible judges and juries of a man’s intent or *535 motive — on ascertainment, that is, from without of a man’s inner thoughts, feelings and purposes. Of course a man runs the risk of having a jury of his peers misjudge him. Mr. Justice Holmes has given the conclusive answer to the suggestion that the Due Process Clause protects against such a hazard: “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.” Nash v. United States, 229 U. S. 373, 377 . To which it is countered that such uncertainty not in the standard but in its application is not objectionable in legislation having a long history, but is inadmissible as to more recent laws. Is this not another way of saying that when new circumstances or new insights lead to new legislation the Due Process Clause denies to legislatures the power to frame legislation with such regard for the subject matter as legislatures had in the past? When neither the Constitution nor legislation has formulated legal principles for courts, and they must pronounce them, they find it impossible to impose upon themselves such a duty of definiteness as this decision exacts from legislatures.

The Court has been led into error, if I may respectfully suggest, by confusing want of certainty as to the outcome of different prosecutions for similar conduct, with want of definiteness in what the law prohibits. But diversity in result for similar conduct in different trials under the same statute is an unavoidable feature of criminal justice. So long as these diversities are not designed consequences but due merely to human fallibility, they do not deprive persons of due process of law.

In considering whether New York has struck an allowable balance between its right to legislate in a field that is so closely related to the basic function of government, *536 and the duty to protect the innocent from being punished for crossing the line of wrongdoing without awareness, it is relevant to note that this legislation has been upheld as putting law-abiding people on sufficient notice, by a court that has been astutely alert to the hazards of vaguely phrased penal laws and zealously protective of individual rights against “indefiniteness.” See, e. g., People v. Phyfe, 136 N. Y. 554 , 32 N. E. 978 ; People v. Briggs, 193 N. Y. 457 , 86 N. E. 522 ; People v. Shakun, 251 N. Y. 107 , 167 N. E. 187 ; People v. Grogan, 260 N. Y. 138 , 183 N. E. 273 . The circumstances of this case make it particularly relevant to remind, even against a confident judgment of the invalidity of legislation on the vague ground of “indefiniteness,” that certitude is not the test of certainty. If men may reasonably differ whether the State has given sufficient notice that it is outlawing the exploitation of criminal potentialities, that in itself ought to be sufficient, according to the repeated pronouncements of this Court, to lead us to abstain from denying power to the States. And it deserves to be repeated that the Court is not denying power to the States in order to leave it to the Nation. It is denying power to both. By this decision Congress is denied power, as part of its effort to grapple with the problems of juvenile delinquency in Washington, to prohibit what twenty States have seen fit to outlaw. Moreover, a decision like this has a destructive momentum much beyond the statutes of New York and of the other States immediately involved. Such judicial nullification checks related legislation which the States might deem highly desirable as a matter of policy, and this Court might not find unconstitutional.

Almost by his very last word on this Court, as by his first, Mr. Justice Holmes admonished against employing “due process of law” to strike down enactments which, though supported on grounds that may not *537 commend themselves to judges, can hardly be deemed offensive to reason itself. It is not merely in the domain of economics that the legislative judgment should not be subtly supplanted by the judicial judgment. “I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.” So wrote Mr. Justice Holmes in summing up his protest for nearly thirty years against using the Fourteenth Amendment to cut down the constitutional rights of the States. Baldwin v. Missouri, 281 U. S. 586, 595 (dissenting).

Indeed, Mr. Justice Holmes is a good guide in deciding this case. In three opinions in which, speaking for the Court, he dealt with the problem of “indefiniteness” in relation to the requirement of due process, he indicated the directions to be followed and the criteria to be applied. Pursuit of those directions and due regard for the criteria require that we hold that the New York legislature has not offended the limitations which the Due Process Clause has placed upon the power of States to counteract avoidable incitements to violent and depraved crimes.

Reference has already been made to the first of the trilogy, Nash v. United States, supra. There the Court repelled the objection that the Sherman Law “was so vague as to be inoperative on its criminal side.” The opinion rested largely on a critical analysis of the requirement of “definiteness” in criminal statutes to be drawn from the Due Process Clause. I have already quoted the admonishing generalization that “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” 229 U. S. at 377 . Inasmuch as “the common law as to restraint of trade” was “taken up” by the Sherman Law, the opinion in the Nash case also drew support from the suggestion that language in a criminal statute which might otherwise appear indefi *538 nite may derive definiteness from past usage. How much definiteness “the common law of restraint of trade” has imparted to “the rule of reason,” which is the guiding consideration in applying the Sherman Law, may be gathered from the fact that since the Nash case this Court has been substantially divided in at least a dozen cases in determining whether a particular situation fell within the undefined limits of the Sherman Law. 4 The Court’s opinion in this case invokes this doctrine of “permissible uncertainty” in criminal statutes as to words that have had long use in the criminal law, and assumes that “long use” gives assurance of clear meaning. I do not believe that the law reports permit one to say that statutes condemning “restraint of trade” or “obscenity” are much more unequivocal guides to conduct than this statute furnishes, nor do they cast less risk of “estimating rightly” what judges and juries will decide than does this legislation.

The second of this series of cases, International Harvester Co. v. Kentucky, 234 U. S. 216 , likewise concerned anti-trust legislation.- But that case brought before the Court a statute quite different from the Sherman Law. However indefinite the terms of the latter, whereby “it throws upon men the risk of rightly estimating a matter of degree,” it is possible by due care to keep to the line of safety. But the Kentucky statute was such that no *539 amount of care would give safety. To compel men, wrote Mr. Justice Holmes “to guess on peril of indictment what the community would have given for them [commodities] if the continually changing conditions were other than they are, to an uncertain extent; to divine prophetically what the reaction of only partially determinate facts would be upon the imaginations and desires of purchasers, is to exact gifts that mankind does not possess.” 234 U. S. at 223-224 . The vast difference between this Kentucky statute and the New York law, so far as forewarning goes, needs no laboring.

The teaching of the Nash and the Harvester cases is that it is not violative of due process of law for a legislature in framing its criminal law to cast upon the public the duty of care and even of caution, provided that there is sufficient warning to one bent on obedience that he comes near the proscribed area. In his last opinion on this subject, Mr. Justice Holmes applied this teaching on behalf of a unanimous Court, United States v. Wurzbach, 280 U. S. 396, 399 . The case sustained the validity of the Federal Corrupt Practices Act. What he wrote is too relevant to the matter in hand not to be fully quoted:

“It is argued at some length that the statute, if extended beyond the political purposes under the control of Congress, is too vague to be valid. The objection to uncertainty concerning the persons embraced need not trouble us now. There is no doubt that the words include representatives, and if there is any difficulty, which we are far from intimating, it will be time enough to consider it when raised by someone whom it concerns. The other objection is to the meaning of ‘political purposes.’ This would be open even if we accepted the limitations that would make the law satisfactory to the respondent’s counsel. But we imagine that no one not in search of trouble would feel any. Whenever the law draws a line there *540 will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk. Nash v. United States, 229 U. S. 373 .”

Only a word needs to be said regarding Lanzetta v. New Jersey, 306 U. S 451. The case involved a New Jersey statute of the type that seek to control “vagrancy.” These statutes are in a class by themselves, in view of the familiar abuses to which they are put. See Note, 47 Col. L. Rev. 613, 625. Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these “vagrancy statutes” and laws against “gangs” are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided.

And so I conclude that New York, in the legislation before us, has not exceeded its constitutional power to control crime. The Court strikes down laws that forbid publications inciting to crime, and as such not within the constitutional immunity of free speech, because in effect it does not trust State tribunals, nor ultimately this Court, to safeguard inoffensive publications from condemnation under this legislation. Every legislative limitation upon utterance, however valid, may in a particular case serve as an inroad upon the freedom of speech which the Constitution protects. See, e. g., Cantwell v. Connecticut, 310 U. S. 296 , and Mr. Justice Holmes’ dissent in Abrams v. United States, 250 U. S. 616, 624 . The decision of the Court is concerned solely with the validity of the statute, and this opinion is restricted to that issue.

The original statute, N. Y. L. 1884, c. 380, has twice since been amended in minor details. N. Y. L. 1887, c. 692; N. Y. L. 1941, c. 925. In its present form, it reads as follows:

Ҥ 1141. Obscene prints and articles

“1. A person . . . who,

“2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, lend, give away, distribute or show, or otherwise offers for sale, loan, gift or distribu *521 tion, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; . . .

“Is guilty of a misdemeanor . . . .”

That this legislation was neither a casual enactment nor a passing whim is shown by the whole course of its history. The original statute was passed as the result of a campaign by the New York Society for the Suppression of Vice and the New York Society for the Prevention of Cruelty to Children. See 8th Ann. Rep., N. Y. Soc. for the Suppression of Vice (1882) p. 7; 9th id. (1883) p. 9; 10th id. (1884) p. 8; 11th id. (1885) pp. 7-8. The former organization, at least, had sought legislation covering many more types of literature and conduct. See 8th id. (1882) pp. 6-9; 9th id. (1883) pp. 9-12. On the other hand, in 1887, the limitation of the statute to sales, etc., to children was removed. N. Y. L. 1887, c. 692. More recently, it has been found desirable to add to the remedies available to the State to combat this type of literature. A 1941 statute conferred jurisdiction upon the Supreme Court, at the instance of the chief executive of the community, to enjoin the sale or distribution of such literature. N. Y. L. 1941, c. 925, § 2, N. Y. Code Crim. Proc. § 22-a. (The additional constitutional problems that might be raised by such injunctions, cf. Near v. Minnesota, 283 U. S. 697 , are of course not before us.)

We have no statistics or other reliable knowledge as to the incidence of violations of these laws, nor as to the extent of their enforcement. Suffice it to say that the highest courts of three of the most industrialized States — Connecticut, Illinois, and New York — have had this legislation before them.

This assumes a similar construction for essentially the same laws.

Since this opinion was filed, Conn. L. 1935, c. 216, repealing this provision, has been called to my attention.

See, e. g., United States v. United Shoe Machinery Co., 247 U. S. 32 ; United States v. United States Steel Corp., 251 U. S. 417 ; United States v. Reading Co., 253 U. S. 26 ; American Column & Lumber Co. v. United States, 257 U. S. 377 ; Maple Flooring Mfrs. Assn. v. United States, 268 U. S. 563 ; Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588 ; United States v. Trenton Potteries Co., 273 U. S. 392 ; Interstate Circuit, Inc. v. United States, 306 U. S. 208 ; United States v. Socony-Vacuum Oil Co., 310 U. S. 150 ; United States v. South-Eastern Underwriters Assn., 322 U. S. 533 ; Associated Press v. United States, 326 U. S. 1 ; United States v. Line Material Co., 333 U. S. 287 .