devices are overbroad or vague and we can think of none.
Similarly, 18 U.S.C. § 231(a)(1) is not improperly vague because
it incorporates the requirement that a specific intent must be
shown at the time the accused was teaching about the use or
manufacture of the dangerous device or technique. Thus, "innocent
and inadvertent conduct" "is not covered." See Landry v. Daley,
280 F. Supp. at 959.
Plaintiffs' concern is really centered on the riots statutes,
18 U.S.C. § 2101 and 2102. These provisions attempt to regulate
the use of interstate facilities with the intent to incite or
organize a riot. Plaintiffs contend that certain phrases such as
"to incite a riot" and "to organize, promote, encourage,
participate in, or carry on a riot" are vague and therefore
unconstitutional limitations on free speech. 18 U.S.C. § 2101(a),
However, plaintiffs' argument is clearly insubstantial because
the First Amendment does not protect rioting and the incitement
to riot. The protections afforded by the First Amendment do not
reach a person who urges or instigates others to riot any more
than it covers the now famous theatregoer who falsely shouts
"Fire!" and causes a panic. Schenck v. United States,
249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). See also United States
v. Woodard, 7 Cir., 376 F.2d 136, 142 (1967).
So it is that a "man may be punished for encouraging the
commission of a crime, Fox v. Washington, 236 U.S. 273 [35 S.Ct.
383, 59 L.Ed. 573], or for uttering `fighting words,' Chaplinsky
v. New Hampshire, 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031]."
Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13
L.Ed.2d 487 (1965).
Regulations on various forms of conduct intertwined with speech
have been upheld to protect a valid interest of the government.
See, e.g., United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673,
20 L.Ed.2d 672 (1968) (destruction of Selective Service
registration card); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct.
1335, 20 L.Ed.2d 182 (1968) (picketing which interfered with
access to county courthouse); Adderley v. Florida, 385 U.S. 39,
87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (demonstration on non-public
section of jail grounds). We do not see how traveling across
state lines with the intent to incite, promote, or participate in
a riot is any less a governmental concern than is the control of
travel on the streets. "The constitutional guarantee of liberty
implies the existence of an organized society maintaining public
order, without which liberty itself would be lost in the excesses
of anarchy." Cox v. Louisiana, 379 U.S. 536, at 554, 85 S.Ct.
453, at 464, 13 L.Ed.2d 471.
Thus, it is clear that First Amendment rights "may be abused by
using speech or press or assembly in order to incite to violence
and crime. The people through their legislatures may protect
themselves against that abuse. But the legislative intervention
can find constitutional justification only by dealing with the
abuse. The rights themselves must not be curtailed." De Jonge v.
Oregon, 299 U.S. 353, 364-365, 57 S.Ct. 255, 260, 81 L.Ed. 278
(1937). Sections 2101 and 2102 of Title 18 deal only with the
abuse of First Amendment rights. When speaking of the instigation
or urging of others to riot, the statute specifically precludes
from its scope the mere advocacy of ideas or expressions of
belief. 18 U.S.C. § 2102(b). It is concerned solely with the use
of interstate facilities by persons who intend to encourage or
participate in acts of violence which pose a clear and present
danger to persons and property.
We agree with plaintiffs that "rioting" and "incitement"
encompass a wide variety of activity which is often closely
related to the immediate circumstances. However, the
constitutionality of a statute does not depend on a possible
misapplication of the statute's sanctions to protected activity.
United States v. Woodard, 7 Cir., 376 F.2d 136, 143 (1967);
Landry v. Daley, 280 F. Supp. at 960. All statutes are susceptible
to some abuse. All that is required
is that, given a normal interpretation, the language is not too
broad. United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538,
91 L.Ed. 1877 (1947); United States v. Woodard, 376 F.2d at 140.
A similarly phrased New York disorderly conduct statute aimed
at persons who, with the intent to provoke breach of peace,
disturb or interfere with others has been held not to be
unconstitutionally broad. United States v. Jones, 2 Cir.,
365 F.2d 675 (1966). We do not believe the statutes in question to be
too vague either.
Consequently, because it has often been held that the First
Amendment does not sanction incitement to riot and because the
statutes in question do not appear to be any broader than
numerous "breach of peace" laws upheld in state and federal
courts, the constitutional questions raised by plaintiffs are not
substantial enough to warrant hearing by a three-judge court.
Calling such a panel is an extraordinary procedure and not to be
undertaken lightly. Oklahoma Gas & Electric Co. v. Oklahoma
Packing Co., 292 U.S. 386, 391, 54 S.Ct. 732, 78 L.Ed. 1318
(1934); Landsberger v. Freeman, 217 F. Supp. 138, 139 (D.C. 1963).
Having discussed the substantiality of the constitutional
question raised, we would normally look at the claimed basis for
equitable relief. Idlewild Bon Voyage Liquor Corp. v. Epstein,
370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1961). Defendants
have raised the points that these plaintiffs are in no immediate
need of the protection of the Court, that they have an adequate
remedy at law should there be an arrest, and that courts of
equity ought not interfere with or enjoin criminal prosecutions.
We do not feel that it is necessary to discuss and rule on these
points, however, in that the key requirement for convening a
three-judge court is missing.
Plaintiffs' motion to convene a three-judge court is denied.
Defendants' motion to dismiss this complaint is granted.
© 1992-2003 VersusLaw Inc.