APPEAL from the Municipal Court of Chicago; the Hon. JOSEPH H.
McGARRY, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1951.
This is a criminal prosecution, in the municipal court of Chicago, against the appellant, herein termed defendant, Joseph Beauharnais, for a violation of section 224a of division I of the Criminal Code, (Ill. Rev. Stat. 1949, chap. 38, par. 471,) which reads as follows:
"It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. Any person, firm or corporation violating any of the provisions of this section, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00), nor more than two hundred dollars ($200.00)"
The amended information filed on March 6, 1950, charged "that defendant on January 7, 1950, at the City of Chicago, did unlawfully publish, present and exhibit in public places, lithographs, which publications portrayed depravity, criminality, unchastity or lack of virtue of citizens of Negro race and color and which exposes citizens of Illinois of the Negro race and color to contempt, derision, or obloquy, which more fully appears in Exhibit A, which is attached hereto and made a part thereof."
Exhibit A referred to is a printed sheet of paper and in the form of a petition to Mayor Kennelly and to the city council of the city of Chicago. It is headed in large, black letters as follows:
"PRESERVE AND PROTECT WHITE NEIGHBORHOODS!
FROM THE CONSTANT AND CONTINUOUS INVASION, HARRASSMENT AND ENCROACHMENT BY THE NEGROES."
In the body of the page it solicits the aid of one million white people in the city of Chicago to oppose the national campaign now on and supported by "Truman's Infamous Civil Rights Program" and many pro-Negro organizations to amalgamate the black and white races with the object of mongrelizing the white race. It points out that the "White Circle League of America" is the only white voice being raised in protest against Negro aggression; that white people must take advantage of this opportunity to become united; that "if persuasion and the need to prevent the white race from becoming mongrelized by the Negroes will not unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, surely will."
The entire exhibit is full of similar charges and inflammatory, anti-Negro language, appealing to the white people of the nation to force denial of equal rights to Negro citizens as guaranteed to them by the constitution of the United States.
The language used in the exhibit is the source of complaint by the prosecution. The circulation of copies of this exhibit on the streets of the city of Chicago, the solicitation of agents to conduct the distribution of same, and general direction of the movement by the defendant constitute part of the charge.
The case was tried before a jury, which found defendant guilty as charged in the information and fined him the sum of $200. Motions for new trial, for judgment notwithstanding the verdict, and in arrest of judgment were overruled, and judgment entered upon the verdict. Defendant brings an appeal direct to this court because the constitutionality of the section above quoted is challenged.
The defendant on the witness stand admitted that he was the founder, president, and director of the organization known as the "White Circle League of America;" that the literature in question was prepared by him or by someone else under his direction. He further admitted that he gave the said literature to agents with specific instructions as to how it should be distributed on the public streets of the city of Chicago, all of which was carried out and performed. The alleged lithograph follows with a plea for membership in the White Circle League.
Defendant's main defense is that section 224a, hereinbefore quoted, is unconstitutional because it violates the first amendment to the constitution of the United States and section 4 of article II of the constitution of the State of Illinois, both of which guarantee to the people the right of free speech and freedom of the press. He further insists that said section 224a is unconstitutional because it deprives citizens of life, liberty or property without due process of law, as provided in the fourteenth amendment to the constitution of the United States, and that it offends section 17 of article II of the constitution of Illinois providing, "The people have ...