Never Forget Herndon v. Lowry (1937)

shiell pic
Timothy Shiell

Despite the enormous odds against him, Angelo Herndon—a black communist who was “every white southerner’s nightmare”[1]—became a free speech hero.  After five years of legal persecution and squalid incarceration, he was freed by the U.S. Supreme Court in Herndon v. Lowry[2] when it held the Georgia law used to convict him was unconstitutional.  His perseverance and ultimate success despite his skin color and radical beliefs are inspiring and should be widely known.[3]

His crime? Publications that police found in his home were claimed to be “incitements to insurrection” in violation of Section 56 of the Georgia Penal Code, a rarely used law originally enacted in the 1830s to punish abolitionists and slave rebellion.  In truth, the 19-year-old CPUSA recruiter’s crime was to organize a bi-racial march of 400 blacks and 600 whites to Atlanta’s city hall demanding immediate relief for the unemployed; he followed up with a flyer that “bragged of the $6,000 obtained for relief, asked the whereabouts of thousands more which authorities claimed were being saved by salary cuts, and emphasized ‘the bosses’ were shocked at the sight of Negro-white unity.”[4]  In the eyes of the white authorities, a black communist who could unite black and white labor deserved the death penalty.

An Unfair Trial

Herndon’s prosecution was led by two distinguished white lawyers who used racist epithets in court, continually raised the specter of black men raping white women, and demanded the death sentence.  No white lawyer would represent him.  The jury was all-white and at times ignored Herndon’s black lawyers.  The white judge was a notorious racist.  The International Labor Defense organization (ILD) hired Herndon’s two inexperienced lawyers, who pointed out the huge gaps in the evidence against him, but his conviction was a foregone conclusion.  After just two hours of deliberation—two jurors held out for the death sentence—the jury returned a guilty verdict but recommended “mercy”: 18 to 20 years on the chain gang rather than death.  It was still a death sentence; no prisoner on any chain gang in Georgia lived more than ten years.[5]

The legal injustices continued.  Judge Wyatt denied a motion for rehearing.  Herndon lost his appeal to the Georgia Supreme Court when it held insurrection need not occur or even be imminent.  It only need be capable of success “at any time.”  The decision stimulated more Atlanta communist witch hunts that ended only when police badly bungled a case.[6]  The Georgia Supreme Court denied Herndon’s motion for a rehearing, so he appealed to the U.S. Supreme Court.  The ILD hired prominent civil liberties lawyer Whitney North Seymour to take his case.  Seymour argued Section 56 was unconstitutional since it failed the “clear and present danger” free speech test announced in Schenck v. United States.[7]  Georgia argued the conviction was constitutional since Herndon’s case met the requirements of the “dangerous tendency” free speech test used in Gitlow v. New York.[8]

The ILD successfully made Herndon’s appeal an international cause célèbre, but in 1935 the court ruled against him in Herndon v. Georgia[9] on a bizarre technicality that ignored the arguments of the defense and the prosecution as well as the racial injustices of his trial that the court had focused on to strike down state action in two “Scottsboro Boys” decisions a month earlier.[10]  The court ruled 6-3 Herndon had not raised the constitutional question properly.[11]  The decision was widely criticized and public support for Herndon remained high, but the court rejected his motion for a rehearing without comment.

Herndon v. Lowry

Herndon and the ILD were not finished.  His lawyers used a writ of habeas corpus to launch a new trial.  With Seymour arguing the case to a different trial judge, the court held Section 56 was void-for-vagueness.[12]  The state appealed and the Georgia Supreme Court, as expected, reversed the decision by reference to its prior decision.  Herndon again appealed to the U.S. Supreme Court.  The stage was set.  Two years after Herndon v. Georgia, Herndon v. Lowry featured the same nine justices, the same lawyers for the defense and prosecution, and the same arguments for the defense and prosecution.  But this time the court was considering the merits of the case.

In a stunning decision, the court ruled 5-4 for Herndon.  The state failed to prove Herndon’s communist pamphlets or recruitments constituted incitement to insurrection.  The evidence only showed his support for unemployment relief, membership in the Communist Party, and recruitment of members, all of which were “devoid of criminality.”  More importantly, the court found the statute void-for-vagueness because it failed to identify a reasonable standard of guilt.

Herndon v. Lowry was the first time the court overturned a Southern speech restriction and the first time it used the Schenck v. United States (1919) clear and present danger test to protect speech.  That precedent protected unpopular speech in later cases.[13]  It was only the third decision to reverse a state speech conviction on due process grounds,[14] and only the second to strike down a state speech law as unduly vague or overbroad.[15]  Most importantly, it was the first time the court protected black freedom of speech.  Herbert Wechsler—who wrote the legal briefs for Herndon, created the Model Penal Code, and became director of the American Law Institute and one of the most cited legal scholars of the 20th century—considered Herndon v. Lowry a “second revolution” in constitutional law and a “restoration” of the Fourteenth Amendment as a legal means to attain equal rights for African Americans.[16]

Civil Liberty and Civil Rights

Angelo Herndon’s case is remarkable for two further reasons.  It was the first decision to unite the pursuit of African American civil liberty and civil rights, thereby creating a platform later Civil Rights Movement cases involving freedom of association,[17] protest marches,[18] sit-ins,[19] and more could build on.  Indeed, the next year the court prescribed heightened judicial scrutiny for laws prejudicially aimed at “discrete and insular” minorities who lack recourse through normal political processes,[20] and upheld black economic protests and boycotts demanding equal civil rights.[21]  Moreover, Herndon v. Lowry was the first case in which race-neutral legal strategies were successfully combined with race-conscious publicity strategies to unite diverse groups in mass protest.

Angelo Herndon died far from the limelight in Sweet Home, Arkansas, in 1997, but we should never forget his courageous and victorious stand for racial liberty and equality.

About the author: Dr. Timothy C. Shiell is director of the free speech- and civil liberty-focused Center for the Study of Institutions and Innovation and a professor of philosophy at the University of Wisconsin-Stout.  He explores the relationships between African Americans and free speech in further detail in African Americans and the First Amendment: The Case for Liberty and Equality, to be published by the State University of New York in September 2019.

Featured image of Angelo Herndon from Herndon, Let Me Live (1937).

Notes

[1]              Paul Finkelman, The Supreme Court: Cases, Controversies, and Character from John Jay to John Roberts (Santa Barbara, CA: ABC-CLIO, 2014), 724.

[2]              301 U.S. 242 (1937).

[3]              Herndon v. Lowry is usually “de-raced” in the legal literature and cast as a minor case in the early years of First Amendment decisions.  Nan Hunter, “Escaping the Expression-Equality Conundrum,” 61 Ohio State Law Journal 2671, 1703 (2000).  Exceptions include Charles Martin, The Angelo Herndon Case and Southern Justice (Baton Rouge, LA: Louisiana State University Press, 1976); John Hammond Moore, “The Angelo Herndon Case, 1932-1937,” Phylon, Vol. 32, No. 1 (1971); and Kendall Thomas, “Rouge et Noir Reread:  A Popular Constitutional History of the Angelo Herndon Case,” 65 Southern California Law Review 2599 (Sept 1992).

[4]              Moore, “Angelo Herndon Case,” 64.

[5]              John Spivak, “Foreword,” in Angelo Herndon, “You Cannot Kill the Working Class” (New York, NY: International Labor Defense and League of Struggle for Negro Rights, 1937), 3.

[6]              Moore, “Angelo Herndon Case,” 67.

[7]              249 U.S. 47 (1919).

[8]              268 U.S. 652 (1925).

[9]              295 U.S. 441 (1935).

[10]             Norris v. Alabama, 294 U.S. 587 (1935); Patterson v. Alabama, 294 U.S. 600 (1935).

[11]             In his dissent, Justice Benjamin Cardozo explains how Herndon could not have met the majority’s timeline for raising the constitutional question.  Herndon’s lawyers would have had to have known at his original trial that the state supreme court would later reject the clear and present danger test in a separate line of cases, and to have argued the point at his original trial even though Judge Wyatt instructed the jury to use the clear and present danger test.  Herndon, 295 at 446-55.

[12]             The void for vagueness doctrine requires criminal laws clearly identify what conduct is punishable so citizens have fair notice and to provide a constraint on arbitrary prosecutions and enforcement.  Derived from the earlier common-law principle of nonenforcement of incomprehensible statutes, the constitutional rule first appears in Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 216 (1914).

[13]             The two most famous cases are West Virginia State Board of Ed. v. Barnette, 319 U.S. 624 (1943), and Terminello v. Chicago, 337 U.S. 1 (1949).

[14]             Fiske v. Kansas, 274 U.S. 380 (1927); DeJonge v. Oregon, 299 U.S. 353 (1937).

[15]             Stromberg v. California, 283 U.S. 359 (1931).

[16]             Anders Walker, “’Neutral’ Principles: Rethinking the Legal History of Civil Rights, 1934-1964,” 40 Loyola University Chicago Law Journal 385, 404 (2009).

[17]             NAACP v Alabama, 357 U.S. 449 (1958).

[18]             Edwards v. South Carolina, 372 U.S. 229 (1963).

[19]             Brown v. Louisiana, 383 U.S. 131 (1966).

[20]             United States v. Carolene Products, 304 U.S. 144 (1938).

[21]             New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938).

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