# Appellees Brief — Brandenburg v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1299%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 444 ## Text 4 LIBRARY , , Office-Supreme Court, U.S SUPREME COURT. U. & \, FILED f | NO. 492 } FEB 4 1969 ee cuERK | ‘In The SUPREME COURT OF THE UNITED STATES October Term, 1968 CLARENCE. BRANDEN BURG, _ Appellant, v. STATE OF OHIO, Appellee. . On Appeal from the Supreme Court of Ohio ‘BRIEF OF APPELLEE MELVIN G. RUEGER, | Prosecuting Attorney LEONARD KIRSCHNER, | Sees Ass’t. Prosecuting Attorney 420 Court House Cincinnati, Ohio 45202 ‘ATTORNEYS FOR APPELLEE Court INDEX PRESS, INC. — Law Printers — 807 Walnut Street, Ciricinnati, Ohio 45202 - Pk hited bit as Ray Sai AEG Sie ee yr Te as ar a a a a nae “a uate SON ANE URN RNTY w De am caterer aaa INDEX | Page Opinions irre Terr err errs ort. ] POPE, vos ann vescnnnvovsegnaecscersesss 1 Statutes Involved seeceees errr vere rere T ee Questions Presented ......- Poe AR err ee 3 Statement of Facts ..... Serre rrr rrr st gtanenes 3 Argument I. Whether Ohio Revised Code Section 2923.13, prohibiting criminal syndicalism, violates the First and Fourteenth Amendments of the Constitution of the United States? .......----- 6 i]. Whether Ohio Revised. Code Section 9923.13,- which prohibits criminal syndicalism directed against the State of Ohio, is preempted by federal legislation? .....--. uy aaeeesausa sss 19 TUJ. Whether there: was any evidence to sus- tain a conviction under Section 2923.13 of the Ohio Revised Code, as required by the due process clause of the Fourteenth Amendment? .... 23 | 7 CN akc cnawe rer cecues hes abner nea es* 29 AUTHORITIES Cases: | | Bullock v. United States, 265 F. (2d) 683, certiorari denied 78 S. Ct. Sarr rs eae Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S. Cr. 1357, 61 L. Ed. (2d) 625 8 DeJonge v. Cregan, 299 U. S. 358 .......- ~oo 0 1B, 2B Dennis v. United States, 341 a 3 aren eo 12 . Fiske v. Kansas, 294 U. SS Serer ae _29 Frohwerk v. United States, 249 U. eee eae Gitlow v. New York, 268 U. S. Pees 12, 15, 16 Herndon v. Lowry, 301 U. S. 242 ....-+--- ree 28 - Il. ~ Page Keyishian v. Board of Regents, 385 U. S. 589, ; ee ee ee ere ree Oe eer oe People v. Epton, 19 N. Y. (2d) 496, certaorass Gensed S90 VU. &. BP... i. es leew sncss 13 State v. Cickelli, 118 O. A. 87, 24 O. O. (24) 420, 92 O. L. A. 338, 193 N. E. (2d) 409 ........ 6-7, 22. Sense wv. Gamey, 196 ©. B. W772 os os cccce seca eas Oe State -v.- Shaffer, 113 O. A. 125, 70. O. (2d) 114, We OO ee ek. Sora awic an 7 ee SF Ce ee es aw ees kes ces vs : i Uphaus v. Wyman, .360. U. S. 72, 3 L. Ed. (2d) 1090, ee rer eer are rary ee 19 Whitncy v. California, 274 Us S. 357, 47 S. Ct. 641, Te Ss CO as rae Oca Oc aa vale 13, 14 Yates v. United States;354 U. S. 298, . : . 1 L.-Ed. (2d) 1556, 77'S. Ct. 1064 ...... 12, 17, 18, 28 Statutes: : Ohio Revised Code Section 2923.12 ........ 2, 10, 29 Ohio Revised Code Section 2923.13 ............ passim Ohio Revised Code Section. 2923.14 ........ 10, 11, 29 Texts: ' oO hi (2d) 31 at 482 ......: Rae oe ee ee 50 O. Jur., Section 260 at 244 .............5%... ‘ll SO ©... Juv; Section DE at PS 2: .. 8s. >. In The SUPREME COURT OF THE UNITED STATES October Term, 1968 NO. 492 ; CLARENCE BRANDENBURG, | —- v. STATE OF OHIO, | | Appellee. On Appeal fiom the Supreme Court of Ohio BRIEF OF APPELLEE - OPINIONS BELOW There are no: written opinions, either reported or un- reported, in t’iis case. JURISDICTION This is an appeal -from the final judgment of the Supreme Court of the State of Ohio entered June 12, 1968, dismissing the appeal from the Court of Appeals of the First Appellate District of Ohio dated February 16, 1968, af- firming the judgment of conviction rendered in the Court of Common. Pleas of Hamilton County, Ohio, .on .Decem- ber 5, 1966. Probable jurisdiction was noted on No- ‘vember 18, 1968. ISAC a apie seni eales 4 Silat a tn BE ee aes S ERIE REP Oe ot ANE Se heed” >. wai Pe s. 2 , STATUTES INVOLVED - Ohio Revised Code Section 2923.13 — isan Criminal Syndicalism ° “No person shall by word of mouth or writing, ad-. ‘vocate or teach the duty, necessity, or propriety of | crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform; or print, publish, edit, issue, or knowingly circulate, sell, distribute or publicly dis- play any book, paper, document, or written matter in any form, containing or Fp advising or teaching the*doctrine that industrial or policital re- form should. be brought about by crime, sabotage, violence, or unlawful methods of terrorism; or openly, willfully, and deliberately justify, by word of ‘mouth or writing, the commission or the attempt to commit crime, sabotage, violence, or unlawful methods of terrorism with intent to exemplify, spread or advo- cate the propriety of the doctrines of criminal syndical- ism; or organize or help to organize or become a member of, or voluntarily assemble with any society, group, or assemblage of persons formed to teach or - advocate the doctrines of criminal syndicdlism. Whoever violates this section shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both,” Ohio Revised Code ‘Section 2923.12 — Criminal Syndicalism “As used in sections 2923.13 to 2923.15, inclusive, of the Revised Code, ‘criminal syndicalism’ is the doc- trine which advocates crime; sabotage, which is de- fined as the malicious injury or destruction of the property of another; violence; or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” ae $ QUESTIONS PRESENTED Counsel for the.appellant has set forth four questions in this matter. However, it is our humble opinion that, in light of the arguments that counsel has set out relative to Question 1, that basically Question 1 and Question 2 are the same for the purpose of the Argument to this Court, and we will therefore join Questions 1 and 2 as presented by counsel in our response thereto. We there- fore submit the following as being the questions involved in this case: 1. Whether Ohio Revised Code Section 2923.13, pro- ' _hibiting criminal syndicalism, violates-the First and Four- teenth Amendments of the Constitution of the United — States? | 2. Whether Ohio Revised Code Section 2923.13, which prohibits criminal syndicalism directed against the State _ _ of Ohio, is pre-empted by Federal legislation? 3. Whether there was any evidence to sustain a con- viction under Section 2923.13 of the Ohio Revised Code, as required by-the due process clause of the Fourteenth Amendment? STATEMENT OF FACTS In this case the defendant-appellant made pre-arrange- ments with a television reporter and television cameraman for their attendance at'a Ku Klux Klan rally and meeting held in Hamilton County, Ohio, on June 18, 1964. The rally and meeting were to be recorded by them on sound film for re-broadcast. Subsequently the recording on the sound fitm was broadcast over both a local station as well as a network television station. When the cameraman and reporter arrived they were met by several hooded indi- oF a lk ote! + OE Sgeepere & fa coe hee ee aane Pat Lara te a CRE IAS Ca he eg OT Hp So ie > + ae ba 4. viduals, carrying guns. faite: tan items identified were a shot-gun, a rifle, apd another weapon. The hooded. in- dividuals were wearing what appeared to be sheets, with holes at a point where the eyes were, to give visibility to the persons behind the sheets. (Appendix 9). The. leader of the group was identified at the trial as being the defendant-appellant. in this matter. (Appendix 18, 14, 15, 19, 37, 40, 41, 43, 43, 44, 47). The defendant-appellant at the time wore a red robe p and hood and made the following statements at the rally:* ““T would like to — how far is the nigger going to — - yeah. Over there. This is what we are going to do to the. niggers. I would like to ask — call this — Patrick. A dirty nigger. Send the Jews back to Israel. I’m for it. Let’s give them back to the dark — garden.. Save America. Bury the niggers. We in- tend:to do our part. rome Give-us our state rights. Freedom for the whites. . Nigger will have to fight for every inch he gets from ~ now on. . This is an organizers meeting. .We have quite a few members here today which are — we have hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday. morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent or- ganization, but if our President, our Congress, our Supreme Court, continues to suppress the white, cau- casian race, it’s possible that there might have to be some revengeance taken. | ® Footnote: ° There is some discrepancy as to whether defendant-ap- pellant himself actually made the statements in the first two paragraphs above set forth, or whether they were made by persons that were associated with him. .* : ae * ns g We are marching on Congress July the Fourth, four hundred thousand strong. - From there we are -di- viding into two groups — one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.” ' The defendant-appellant was subsequently arrested and indicted for violating Section 2923.13, ae Revised Code (Criminal Syndicalism). : ; The defendant-appellant was indicted in September, 1964, but because of motions, continuances and the taking of numerous ‘epositions at his request,. trial | was not had’ until November 28, 1966. At the conclusion of the evidence, and before the Court concluded its charge, and as part of its charge, the Court mn said: :# The Court: “* * * Counsel for the State anything to add to the Court's charge?” Mr. Nikolin: _ (Counsel for State) “Nothing, your Honor.” e The Court: “Counsel for the defendant, anything to add to the Court’s charge?” YO UR HONOR.” (P. 219, ‘Teatecrpy As a result of that trial, which concluded. on December 5, 1966, the jury returned a verdict of ‘ ‘guilty” on both counts of the indictment. A Motion for a New Trial was overruled and, there- after, appellant appealed to the Court of Appeals for the ve - _ Mr. Outcalt: (Counsel for the defendant) | “NO, First Appellate District of Ohio, and said Court subse- - quently affirmed the conviction of the lower court. * Footnote: Counsel for the appellant initially agreed to have the charge printed in the Appendix but said Appendix did not include the above matter so we are, therefore, quoting from the transcript. 6 _ + Defendant-appellant then appealed to the Ohio Supreme Court, which affirmed the conviction without an opinion. An appeal was taken to this Court and jurisdiction was. subsequently noted. ARGUMENT QUESTION I. Whether Ohio Revised Code Section 2923.13, prohib- iting criminal syndicalism, violates the First and Fourteenth Amendments of the Constitution of the United States? | Counsel in their arguments on Question 1, as they have set it forth in their Brief, have set out the general proposition that the instructions of the Trial Court and the Law of the State of Ohio are to be read as part and parcel of the statutes to be determined. With this in- terpretation we will concur wholeheartedly. However, what counsel for the defendant-appellant has failed to do is to fully set forth the law of the State of Ohio rela- tive to certain matters involved in this case. First of all, with regard to the State of Ohio, it is a well settled'.doctrine in the State of Ohio that an error of omission in a court’s charge to a jury will not justify a reversal, especially. where counsel has made no request for specific instructions, nor {has counsel made any objec- | _tions to the charge of the Court which was given. . In the case of State v.Cickelli, 118 O. A. 87, 24 O. O. (2d) 420, 92 O. L. A: 338, 193 N. E. (2d) 409, dismissed for want of a debatable question in 175 O. S. 146, 23 O. O. (2d) 423, 191 N: E. (2d) 803, and further dismissed for’ want of a debatable question and certiorari denied by this Court in 377 U. S. 128, 12 L. Ed. (2d) 184, 84 S. Ct. 1178, ‘the Court held in the third. syllabus that: rN, 7 “An error of omission in the court’s charge to the jury in a criminal case will not justify a reversal, especially in the absence of any request for further in-- structions where the parties were given an opportunity to make such a request.” : This same general principle was ‘re-affirmed in State, v. Tudor, 154 O. S. 249, as being the law of. the State of Ohio. As can be seen from the Court’s eninge to the jury, with - the addition of a portion of the charge as set forth ‘in our Statement of Facts, which was left out of the Ap- pendix, the defendant in this case, through his counsel . not only was not. restricted in making an objection to the Court's charge, but the Court specifically asked defense _counse! if he had anything to add. To this question the defense counsel replied tiat he had*nothing to add. Ac- cordingly, it is the opinion of the: undersigned ‘that the Court, if anything, committed an ‘error of omission, for which defense counsel cannot claim error in this Court in interpreting the statute involved. Another general presumption of law, as interpreted by . the Ohio courts, which we think will be shown to be relevant at a later portion of this Brief, is that the law presumes a man to intend the results and the natural con- sequences of his acts which are deliberately done. 15 O. Jur. (2d) 31, at page 482. This same proposition of law has been set forth in the case of State v. Schaffer, 113 O. A. 125, 17 O. O. (2d) 114, 177 N. E. (2d) 534, and is spelled out in the first part of Syllabus 3 as follows: ‘ “A person may be presumed to intend results: which are the natural, reasonable and probable consequences of his voluntary acts * * *” Defense counsel in his attack upon the constitutionality — of the statute involved has broadened the general attack rere. or Nagy OP LOPE PIT IE OT AO PRN . i ii as Pe a ae ee ae 8 not only to include the specific charges for which, the defendant in this case was charged bysthe indictment, but _ also by including other matters which were not before the Court, either by way of the indictment, the char of the Court, or any other statement as set forth in the course and conduct of this trial. Specifically I am re- ferring to that portion of the defendant-appellant’s Brief which seems to be emphasized on pages 18 and 19 of his Brief, and on which he has argued matters which were -never before the Court. It-is true fhat statute, 2923. 13, Ohio eer Code, does have some-commentary about printing, publishing, editing, issuing, or knowingly circulating, etc. books, etc. However, this portion of the statute never was before the Court, ‘and. is clearly separable from the portion of the statute upon which the defendant was indicted, upon which the evidence was presented,. ‘upon which the Court charged the jury,-and upon which .the jury returned its verdict. As "a general proposition of law, this Court will not determine hypothetical questions, or ques stions which are not before it. As the Court previously stated in the case of Communist Party v. Subversive Control Board, as reported in 367 U. S. 1, 81 S. Ct. 1357, and 6 L. Ed. (2d) 625 Lia at page 674, of the law edition printing: “Merely potential impairment of constitutional rights — under a statute does not of itself create a justiciable controversy in which’ the nature and extent: of those . rights may be.litigated * * * Even where some of the” . provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown . open for a judicial determination of constitutionality. ‘Passing upon the possible significance of the mani- fold provisions of a broad statute in advance of ef- forts to apply the separate provisions is analagous to rendering | an advisory opinion upon a statute or a to the basic Question No. 1, as proposed in the list of ques- stitutional rights of the defertdant-appellant herein. ” aa Gane we x ’ ' . 9 ' declaratory judgment on a —aey ma = ° No rule of this court is better settled than ‘never to anticipate:a question of. a law in advance of the’necessity of deciding it’.”. "With the backgrouind as indicated above, we then go tions presented to this Court. That question is, whether Ohio Revised Code Section 2923.13, prohibiting Criminal Syndicalism, violates the First artd-Fourteenth Amendments of the Constitution’ of the United States?’ To this ques- tion we reply Ohio Revised Code Section 2923.13, as is applicable in this case, is clearly within the. rights of . the State of ‘Ohio to pass, and violates none of the con-° _, Those portions of Ohio Revised Code Section, 2923. 13, : which are relevant to the issues before this Court, and which ‘were. applied at the time of trial, are: Sec. 2923.13 - ADVOCATING CRIMINAL SYNDI- : CALISM. , 1. “No person shall by word of mouth * * * advocate ' or teach the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political , reform: 7 2 2. “‘No person shall voluntarily assemble with any society, group, or assemblage of persons formed to * * * advocate the doctrines of criminal sydicalism. * * - It is our humble belief that the above provisions, are the only applicable provisions of Ohio Revised Code Section 2923.13 insofar as this case is concerned. % —— ‘ 2 ™ rs : PAS oa SIEGEL SIE wins VARIO AEA. abs) : . ‘10. : The Legislature. ‘of the State of Ohio has seen fit to define some of the terms as set forth in Section 2923.13 in Section 2923.12, Ohio Revised Code, which says: Sec. 2923.12 — CRIMINAL SYNDICALISM. . “As used i in sections 2923.12 'to 2923.15, inclusive, a '. the Revised Code, ‘criminal syndicalism’ is the doctrine which advocates crime; satotage, which is. defined as the.malicious injury or destruction of the property ~ -of another; violence; or unlawful methods of terror- ism as 2 means of re industrial or political reform.” | Certainly the Ohio statute spells out, with definition and. terminology, that, as used in Section 2923.13, ‘‘advocate” means something more than a discussion *of an abstract doctrine. We feel that the Legislature clearly showed its intention. in the — of Section 2923. 13 wg ; general discussion, when the Legislature went on, aie Ohio Revised Code Section 2923.14, which statute is not before the Court at this time, to say: Section 2923.14 — ASSEMBLAGE FOR TEACHING | , CRIMINAL SYDICALISM. “No person shall, by his presence, aid, or instigation, voluntarily participate in an assembly with one or more others for the purpose of advocating or teaching the doctrines of criminal syndicalism. * * *” (Empha- sis Ours) . ca) Clearly the Legislature in its enactment of Section 2923.14 has spelled out a specific penal provision whereby a per- . son who discusses or teaches the doctrines of criminal . syndicalism might be charged as violating a séction of . the Ohio Revised Code, namely 2923.14. ‘ % ea ‘i a i cn 2 ee s cS as) “ ‘ va In Ohio, as. is: the case in most states, the law is that in\interpreting a statute, the Courts may look to the title which. the Legislature has placed on the said statute. As is stated in 50 O. Jur., Section 260, at page 244: “The title of an act may be utilized for determining the purpose which induced the enactment of the law, which purpose may be considered in anriveng ¢ at a correct interpretation of its ame In 50 O. ro Section 261, at page 245, it -is stated: “In the interpretation of statutes, the.title thereof have been declared to be persuasive and entitled to great - weight in determining the meaning, but not con- j - clusive." ~ &F. If, as counsel hie the appellant has stated, this statute en- : compasses a general discussion: of ‘certain theories, why . did the Legislature subsequently provide in Ohio Revised - Code Section 2923.14 an assemblage for teaching criminal - syndicalism. . It is also to be noted that Section 2923.13 says: “To teach or advocate the doctrine of criminal syndi- calism: as against Section 2923.14, which states: “advocating or teaching the doctrine of criminal syndi- calism.” | It would appear to the undersigned that clearly the Legislature, in the enactment of this statute, especially when.it is considered in light of the terminology -used in giving a title to the statute of its intention that Section . 2923.13 was an advocacy of action, rather than a discus- sion, as this Court has previously defined and differenti- ahaa len Rae on an yale nsenss aie ind. NEE a ai als ated the term of ‘ ‘advocacy” in Yates v. United . States, - 354 U.S. 298, 1 L. Ed. (2d) 1856, 77 S. Ct. 1064, (1957). Asa general proposition of law, it is the judicial obli- gation to support the enactment of a law-making body if this can be done. It is the duty of this Court, where - constitutional questions are raised, to liberally construe the statute to save it from constitutional infirmities. It is generally. presumed that the Legislature, im enacting a - statute, did not intend to contravene the constitution, and - it is the duty of the Court to so construe a statute as to . _ give the effect, and at the same time preserve the ‘con- stitution from invasion, if such construction can reasonably be made. This is the general law of the State of Ohio, and we believe the general law in all of the fifty states of the Union. In the case of Dennis v. United States, 341 U.S. 494, at page 501 (1951), the Court held: “The question with which we are concerned here is not whether Congress has such power, but whether the means by which it has employed conflict with. the First and Fifth Amendméiits to the Constitution.” So it is in the statute currently before the Court. The _ -question, I-believe, is conceded that the State Legislature has the power, but the sole question is whether the means which (it has employed conflict with the First and Four- teenth Amendments to the Constitution of the United States. It is to be pointed out that this Court in num- erous cases has upheld the validity of the Smith Act. It is to be further pointed out that although the exact verbiage © might be slightly different, the general intent, purpose and verbiage is the same in the Smith Act as in the Ohio stat- ute and as in the New York statute, which was sustained in Gitlow v. New York, 268 U. S. 625 (1926), and the ee Califgrnia statute which was upheld by this Court in Whitney v. California, 274 U. S. 357. The only basic difference between the Ohio statute and .— the: Smith Act is that the Smith’ Act. bas.cally deals with me the overthrow of government in the’ United States by _force and violence, whereas under the Ohio law it is | the unlawful acts in accomplishing political or industrial reform. It is to be further pointed out that the Ohio statute is somewhat similar to the New York penal law covering criminal anarchy, which was upheld in the case of People v. Epton, 19 N. Y.+(2d) 496 (1967), certiorari denied 390 N. S. 29. In that casé, and in many cases that have come. before the Supreme Court under the Smith- Act, and in the case currently before the Court, the ap- _ pellants contend that the statute was over-broad and “Was ~ void for vagueness, and violated the constitutional right of: freedom of speech. In each. of the cases involved the Court upheld the constitutionality of the statute. The --Court held that the statute was not over-broad, and the Court sheld that the statute was not void for vagueness. _ The defendant-appellant ‘lays great stress upon the de- cision of this Court in Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675 (1967), in which the Court had before it the statutory scheme of an administrative. regula- tion without benefit of any specific application or interpre- - tation by the courts of the State of New York. This is not the case currently before this Court. The case has a specific application, namely to the specifics of the indict-. ment. The indictment in this case is set forth on page 2 of the Appendix. For the purpose: of argument ih this Brief we believe that the essential words to be argued in this Brief are, in the first count: “unlawfully by word of mouth sileovene the necessity, - or propriety of crime, violence, or unlawful methods —— a : RGD ERA SRE Ne SN ARR LD Wiis NA ERGOT D6 dn a Se Le chet N / na 14 of terrorism ‘as a means of accomplishing political — reform” Ses ns 5 and in the second count: ANA Sy << “did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the dot- trines of criminal syndicalism * * *” — | . Ohio Revised Code Section 2923.13 has previously been — declared to be constitutional in the case of State v. Kassay, -126,O. S. 177. The-Court, in. that case,.made the follow- ing statements at page 184. Starting out with a defense of the Ohio Bill of Rights, the Court said: “Section 11 of the Ohio Bill of Rights provides in part: ‘Every citizen may freely speak, write and pub- - lish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty: of speech, or of ' the press.’ It is apparent from this language that it doés not guarantee’ the right freely and without re- _ straint to express one’s sentiments on every possible subject. It recognizés the responsibility for an abuse ~ ' of the right. It indicates that there is a limit beyond | which one may. not go, and that, when that limit . is exceeded, he enters the realm of abuse, and there- forethe realm of responsibility.” . ye The Court in this case further went on to say, at page 186: “The right of free speech is fundamental, but it is not absolute. Its exercise is subject to restriction by legislative authority; if restriction is required in — order to protect the state and its people from serious ~ injury.” | Rane . Dee _ © Ina similar @riminal syndicalism statute in California, . . - “this Court held in Whitney v- California, 274 U. S. 357, 47 S. Ct. 641, L. Ed. 1095 (1926), that the question > a ‘ . ‘ BRU a tate sn Sse ea CROSS lic EE clade ara en ints are ALN ct ct le kata eee -_ fee of whether or not one attending a Communistic convention _ intended to assist in the organization of a. Commuyist Party with knowledge of its unlawful character and pur- pose is one of fact, a finding of which by the jury, affirmed . _ by the reviewing court, is not open to review by the Supreme Court. - “The Court further held in that case that freedom of speech, which is secured by the ‘Consti-. tution, does not confer an absolute right to speak without responsibility whatever one miay choose, or an unrestricted and unbridled license giving immunity to. every possible . use of language and punishing those who abuse their - freedom. We are not arguing against the bare and funda- mental rights of freedom of speech, freedom of the press, ~ fyeedom of peaceable assembly, etc. Nor are we. arguing against the cases of Gitlow.y. New York, 268 U. S. 652, - 69 L. Ed. 1188 (1924); De Yonge v. Cregan, 299 U.°S. 353; Herndan v. Lowry, 301 U. S. 242; and many others cited’ which recite that legal premise. It is to be noted __ «that the Supreme Court was not in those cases confining and restricting itself to just that proposition. On the contrary, in the Gitlow case the syllabi state: “2. Freedom of speech and of the press, as secured by the Constitution, is not an absolute right to speak or publish without responsibility whatever one may choose or an immunity for every possible -use of language. : Stas “3.” That a State, in the exercise of its police power, _ may punish those who abuse this freedom by utter- ances inimical to the public welfare; tending to corrupt public morals, ificite -to crime or ‘disturb the public peace, is not open to question. “6. Such utterances present sufficient danger to the ‘public peace and security of thé State to bring their punishment clearly within the range of legislative CANO cBOD Darby, 16 discretion even if the effect, of a given utterance can- not accurately be foreseen.” - -. , 7. ‘A State cannot reasonably be required to defer measures against these revolutionary utterances _ until they lead to‘actual disturbances ‘of the peace or, imminent canget of the State’s destruction.” | . And, on ‘page 670 of the Opiniog (in Gitlow) , the Court stated the following, after first upholding the constitution- ality of the (New York) statute: _“This being so . (the constitutionality-Sf the statute) _it.may be applied to every utterante — not too trivial - - to be beneath the notice of the law — which is of such a-character and: used with such intent and pur- _pose as to bring it within the prohibition of the stat- ute. In other words, when the. legislative body has 5: determined generally, in the constitutional exercise of its discretion, -that utterances of a certain kind involve such danger of substaritive evil that they may be punished, the question whether any. specific utter- ance coming within the prohibition ’class is likely, .in and of itself, to bring about the substantive evil, is not open to consideration. It is sufficient that the. statute itself be constitutional and that the use of the” language. comes within its } prohibition.’ In the case of Bullock v. United States, 265 F. (2d) 683, certiorari denied 78 S. Ct: 54, the Court stated that the guarantee of*“‘free speech” does not include the right to persuade others to violate the law. There are too many cases on this subject to cite and here belabor the argument. Although some of the states’ criminal syndicalism statutes are aimed specifically at doctrines pertaining to the over- throw of the government by force, other states have legis- _ lated against any advocacy of crime or violence, or un- . ) lawful methods .of ‘terrorism .as a means of accomplish- ae ‘ — 4 ( meets ee - Ing industrial or political reform. Ohio’ s statutes fall within gthe latter group. It is apparent that almost all of the ment cases, as _ being supportive of the ‘law on the’ subject encompassed in this issue, deal with communism, sedition, espionage, and the like. Nevertheless, it i} submitted that the principle _ is the same and, stated in |essence, it is, simply, that al- ‘though the First Amendment prohibits legislation against free speech,’it does not give immnity for every possible use’ of language. (Frohwerk v. United States, 249 U. S. 204). In the case of Yates v. United States, 354 U. S- 298, 1 ke Ed. (2d) 1356, 77.S. Ct. 1064 (1957), the Court reaf- - firmed the validity ofthe Smith Act.. In particular, the Court went into the definjtion of the term “advacate”’ as. “used in that Statute. The Court refused to declare the Statute unconstitutional on that term. It went on to define the term “‘advocate’’ as not being a mere abstract doctrine but to advocate action. In fact, this Court, in. _that case, indicated that the term covered the advocacy of a future act rather than a limited eee iad of an immediate act. This Court went on ,to say at page 1378: “the csntneied ‘distinction is that those to whom ‘the ~ advocacy i is addressed must be urged to do something . now or in the future, rather than merely believe in something.” _ Inthe Yates case, the Court further stated, at page 1375, — L. ed. publication and page 318 of thé U. S. Reports: ‘ “The distinction between advocacy of abstract doc- trine and advocacy directed at promoting unlawful action is oné that has been consistently recognized in ‘the opinions of this Court * * * The Statute does not penalize the utterance or publication of abstract doctrine or academic Gacaesen, having no quality of © h ‘ft - 18 ‘incitement to any concrete action * * * It is nut the abstract doctrine of. overthrowing organized govern- ment by unlawful means which is denounced by the Statute, but the advocacy of action for the accomplish- ment of that purpose * * *” (Emphasis ours) . The Court went on to say in that case at pages 1376, 1377 . : *L. Ed, and page 321 U. S. Reports: “If the government is aware that a group aiming at _ its overthrow is attempting to indoctrinate its mem- ee bers and committed to a course whereby they will strike when the leaders feel the circumstances per- mit, action by the government is required. 341 U. S. 509. The essence of tlie Dennis holding was not that indoctrination of a group in preparation for future violent action as well as exhortation to immédiate action, by advocaty found to. be directed to ‘action for accomplishment’ ‘of forcible overthrow, to vio- © lence is ‘as a rule of. principle action’,» and employ- ing ‘language of incitement’ id. 341 U. S. 511, 512, is not constitttionally protected when the group is of sufficient size and cohesiveness, is sufficientiy oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will. occur * *- *”: : In conclusion, insofar as Question No. 1 has been pre- sented to this Court, it is the belief of the undersigned that in light of the above: authorities, as heretofore set forth, Ohio Revised Code :Section 2923.13, prohibiting criminal syndicalism in the State of Ohio, does not violate either the First or the Fourteenth Amendment of the United States Constitution. ee We accordingly believe that this question should be dis- . missed as being without merit. ¢ ig 19 QUESTION II. _Whether Ohio Revised Code ‘Section 2923.13, which | prohibits criminal syndicalism directed against the State of Ohio is preempted by federal legislation? | Counsel for the defendant-appellant appears to concede _ the fact that in.Uphaus v. Wyman, 360 U. S. 72,.3 L. Ed. - (2d) 1090, 79 S. Ct. 1040 (1959) , the Court indicated that the Smith Act and ‘the Federal Acts only excluded state legislation directed toward the overthrow of the United States Government. For the purpose of the record, I would like to quote from the. Uphaus case at 3 L. Ed. (2d) at-page 1096, where the Court stated: “The appellant’s argument sweeps too broad. In Nelson itself we said that thé ‘precise holding of the - Court * * * is that the Smith Act * * * which prohibits the knowing advocacy of the overthrow of the Government of the United States. by force and violence, supercedes the enforceability of the -Perinsy]l- vania Sedition Act which proscribed the same con- duct’. 350 U. S. 499. The basis of. Nelson thus re- jects the notion that it stripped qv? states of the right to protect themselves. All that fhe opinion proscribed was a race between federal and state prosecutors to the courthouse door. The opinion made clear that a state could proceed with prosecution, for sedition against. the state itself * * *” (Emphasis ours) Counsel once again argues, as it has done in previous parts - of its Brief,-and takes off on matters not before the Court. Quoting from thé first count of the indictment, - the defendant is charged with “did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of terrorism * * * against the ; peace and dignity of the State of Ohio”. CORE IE ape» \ STR ORR SRY en AL Rep, rs 7 20 The second count of the indictment says that the defen- dant “did unlawfully voluntarily assemble with a group or _ assemblage of persons formed to advocate the doctrines of criminal syndicalism, contrary * * * and against the peace and dignity of the State of Ohio.” The statement in the indictment “against the peace and dignity -of the’ State of Ohio” is more than just 2 formality, as the defendant-appel- lant indicates in his Brief. Defense Counsel indicates that the case before the Court is different from the Uphaus case, in that in that case the inquiry was directed to the ‘security of the State of New Hampshire, which counsel con- _ceded the Supreme Court was not prepared to hold ieee the reach of, the State. Government.. It is to be pointed out in the first count of the indict- ments the words “advocate * * * crime, violence, or unlawful methods of terrorism”. It is to be pointed out from the record that the defendant and the persons who were assembled with him wore robes with portions cut out , at the eye level so that the persons under the robes could see out, but basically could not be identified by means of _ facial features. It was further indicated by virtue of the movie that was introduced as an exhibit, and a ile virtue of the testimony itself: . “There were several hooded individuals carrying guns that stopped us at that point.” ‘Q. “What kind of guns, sir?” A. “Gk” “What kind of guns?” _- A. “TI recall at least one shotgun and one rifle and I think there was another weapon.” (Appendix 9) It is to be further pointed out that on page 31. of the Appendix, under cross-examination, the mais questions | and answers took place: ie 21 Q. “Now you say that the shotguns and rifles that Were out at this place, that they made you, I believe’ you said nervous?” } A. “Yes, sir.” - Q. “You said that they were pointed at you. Is that correct?” A. “In the same general directisn.” Q. “I ask you, sir, did anybody make any threat - with reference to. any of those weapons to you or Mr. Neuber?” A. “Not specifically. The threat was implied. Let me put it that way. My interpretation was, just don’t do anything out way, those things may be loaded, and I wasn’t going to ask.” It is further conceded that among the comments that were made while‘the men were marching around the burn- ing cross were statements: “Let’s give them back to the dark garden.” ‘ “Bury the niggers.” ‘We intend to do our part.” (Appendix 5). | Just where is the “dark garden”? Is that a burial ground? Just where were they going to bury the niggers — using _ the quotation from the Appendix? Just what were they going to do as they were shouting these amongst other profanities and commentaries, with their guns, and their hoods over their faces so that their facial features could not be determined? It is to be pointed out that all these incidents and commentaries were identified as having been made in Hamilton County, State of Ohio. Certainly de- fense counsel cannot, at this point, say that to have a person going around with a hood covering his facial fea- tures, with a shotgun, a rifle, or another type of weapon, as indicated in the transcript, shouting “Bury the Nigger,” _“Send the ‘Jews back to Israel”, “Let’s give them back to the dark garden’, “We intend to do our part”, “Freedom \e % 22 - for Whites” , “Nigger will have to fight for every inch he gets from now on”, under any pretense or ee eee or stretch of the imagination, be considered to be’ sole- ly within the exclusive jurisdiction of the United States ‘Government. As the Supreme Court indicated, a State-may cover and provide for the protection of its own citizens. ‘The state- ments which were made -as the people were marching around, upon which there is some discrepancy as to whether. the defendant made any of them, or a part of them, or whether he made all of them (Appendix 42-43), clearly were acts of terrorism in light of the circumstances in which they were made. As indicated by the statements and conduct of the parties involved, these were mut uicic dio- cussions or pice of doctrines. These were statements by a small, closely knit group, ready to go out and commit | terrorism right then and there and fully capable by the evidence of doing so at the time. > Resort to epithets or personal abuse is not in: any sense communication or inforniation or opinion safeguarded by the Constitution of the United States. It is pointed out that in the charge itself the Court specifically, in reading the. indictment, charged the jury that.the acts involved were to be unlawful and against the peace and dignity of the State of Ohio. (Appendix, bottom _ 74 and top 75). If counsel determined that a clear in- | terpretation might.have been of some aid to the jury in this matter, counsel could- clearly have asked for a further charge on this point. As we have previously indicated, the law of the State of Ohio is clear that the Court will not reverse on errors of omission in a charge where defense counsel has been given the opportunity to request correc- tions or make additions to the charge. (State v. Cickelli, ™ supra) . 23 As has been previously pointed out, in that portion of the — charge which was printed on page 219 of the transcript, the Court specifically asked defense counsel if he had anything further to add, and defense counsel said nothing. Accord- ingly, being bound by ‘the laws of the State of Ohio rela- tive to procedures involved, it is the opinion of plaintiff- appellee in this matter that there was. definitely terrorism, definitely violence in the making, which would bring this matter within the complete jurisdiction of the State of Ohio to determine. Accordingly, we respectfully believe that Question No. 2 is without merit in this «matter, and accordingly, should be dismissed. ; a ; <= _— QUESTION III Whether there was any evidence to sustain a conviction: under Section 2923.13 of the Ohio Revised Code, as re- quired by the due process clause of the Fourteenth Amend- ment? aes Counsel for defendant-appellant in-his opening argument _ ) on this point, which he has raised, says, and I quote: “In the absence of any evidence whatever to support _. a conviction, a person who is nevertheless found guilty and convicted is denied due — of law.” (Empha- | sis Ours) . We concur with the statement of asia insofar as this general proposition of law is concerned. Counsel for de- ~ fendant-appellant, on page 31 of their Brief, does further state: “Vet neither the film ‘nor transcript contain a scin- - tilla of evidence.of advocacy of reform through wi- olence that would have satisfied count 1 * * *” (Em- phasis ours) . EIN o aoe ti SRT OEY « ° LELLOL AI ALA ANGE LRP II CLL TE SLED eM CY - * . ak a he iS or" 24 s* With this statement of counsel for defendant-appellant we must wholeheartedly disagree, based upon the Appendix as has been submitted to this Court, the transcript and the evidence which was introduced in the trial. Without _ going into the irrelevant portions of the matter relative to venue, time, place, etc., and limiting our argument to the issues before the Court and more particularly to the statement of counsel that there is no evidence whatsoever to support the findings of the jury in: this matter, we herewith submit portions of the record and conclusions as brought forth from the record, as we believe them to have been shown at the time of the trial, and upon which the jury based its findings of guilt, as the defendant was so found on the 5th day of December, 1966... First of all, by virtue of the evidence as submitied, name- ly the film, and by the testimony itself, there were several individuals who wore hoods that appeared to be made out of a sheet, with holes for the eyes.. (Appendix page 10). Secondly, several of the hooded individuals were carry-: ing guns, among which were rifles, shotguns and other _ weapons. (Appendix, page 9). The evidence further in- dicated that it was the defendant himself who made con- tact initially with the televison newsman, Harold. Leonard, to come and film the activities of the defendant and.his - associates for dissemination over the local television sta- tion to the general public. (Appendix, pages 12, 13, 14) .. _ This portion appears to be uncontroverted. It is also uncontroverted by the testimony and the film that there were men who were armed‘and were marching around a cross, and that either the defendant, or his as- sociates who were hooded and armed, made the following statements: om 25 _“A dirty nigger.” “Let's give them back to the dark garden.” “Bury the niggers.” fone “We intend to do our part.” ms “Freedom for the whites.” “Nigger will have to fight for every inch he wants from now. on.” (Appendix 25). : e oe... Defendant, by his own statement, which is admitted by counsel and is uncontroverted, initially started off one of ' his.speeches with the words “This is an organizers’ meet- ing. We have hundreds of members throughout the State of Ohib * * *” (Appendix, page 24) , i, 2 Now when one considers that each of the items as set forth above may, or may not, be considered to be a viola- tion of some law, or an overt act toward some act of terrorism, it is the -belief of plaintiff-appellee in this mat- ter that the overall facts as presented to the jury clearly gave the jury in this case some evidence upon which they could base their findings in this case. It is a general rule and ‘proposition of law that appellate courts will not re- verse, or set aside a judgment, where there is evidence from which the jury could have reached its findings in the matter. When we/take all of the above items and put them into the surrounding background and circum- stances as existed at the time, it is extremely difficult to come up with an understanding of the defendant-appellant’s argument that there was the absence of any evidence what- ever to support the conviction, and that there was not a ° scintilla of evidence of the advocacy of reform through violence. If there was not advocacy of reform through violence, why the hoods that hid the facial features for in 26 identification purposes of the persons who were covered by them? Counsel, no doubt, will come up with some his- torical reason for the wearing of hoods. However, this is just one facet. ane i Secondly, ff it was supposed to be such a peaceful meet- ing, in which there was no violence and no terrorism, why the guns? The carrying of guns clearly indicates violence, especially in light of the faét of the hoods hiding the faces of the persons carrying the guns. We especially point out to this Court that, as defendant-appellant has said in the Appendix, this was an organizers’ meeting. (Appendix, page 24). Now it might bethat we are anticipating a possible argument that there was only a small number involved in this meeting. Defense counsel appears to set forth that argument in other portions of his Brief before this Court. It is to be pointed out that -the participants with their hoods,. their guns, their pro- fanities and aims clearly were capable right then and there of carrying out terroristic activities to obtain political re- form. ° ate eae rey What has not been explained, if this was a private meet-. ing on private property, not affecting the general public, as counsel contends, is why did the defendant cali in a television newsman and camerman to take the pictures. It is the opinion of plaintiff-appellee in this matter that the basic purpose of the television cameraman and newsman was for, the purpose of spreading information to carry out the terrorism and violence and crime necessary to gain. the objectives of the group. In the absence of any contra- dictory evidence, it would seem that this is a fair and © logical conclusion that a jury could have reached based upon the; evidence. . | xsi eS Counsel for defendant-appellant has stated that we have not set forth any of the purposes of the Ku Klux Klan. “4 27, In this case, words of the parties involved speak for them- selwes. This was an organizers’ ‘meeting by defendant- appellant’s own admission. ‘Either defendant-appellant, or - persongswho were working with him, made’ the statements attributed, which appear on pages 17 and, 25 of the Appen- dix: “How far is the nigger going to go * * *” __ “This is what we are going to do to the niggers li Sl “A dirty nigger.” “Send the Jews back to Israel — I ani for it.” “Let’s give ‘them back to the dark garden.” “Bury the nigger.” | “We intend to do our part.” “Freedom for the whites.” “Niggers will have to fight for every” inch he ” from now on.’ It would certainly appear to be stretching the imagination: to conclude the commentaries, as indicated, to be academic. Clearly the comments of the associates at this organizers’ "meeting; and those of the defendant cannot be’ separated. Clearly when you take all the facts and put them together, the guns, the hoods, the commentary that this is an or- ganizers’ meeting, the fact that it is contemplated to be played over television, certainly indicate Overt acts. __ The words “Bury the niggers”, “niggers will have to fight for every inch he gets from now on”, “Let’s give them back to the dark garden”, etc., clearly take the words out of the realm of a general discussion; as against the advocacy and overt acts for which the ara statute is almed at preventing. Although it is not spelled out at the trial itself it should v/ ee ba Baas adie”