TERMINIELLO V.

CHICAGO

Facts of the case

 Arthur Terminiello, a Catholic priest under suspension,[1] was giving a speech to

the Christian Veterans of America in which he criticized various racial groups and
made a number of inflammatory comments.

 There were approximately 800 people present in the auditorium where he was
giving the speech and a crowd of approximately 1,000 people outside,
protesting the speech.

 The Chicago Police Department was present, but was unable to maintain order
completely.

 Petitioner was charged with violation of an ordinance forbidding any "breach of

the peace,"

 The trial court instructed the jury that any misbehavior which "stirs the public to
anger, invites dispute, brings about a condition of unrest, or creates a
disturbance" violates the ordinance.

 Petitioner did not except to that instruction, but he did maintain at all times that,
as applied to his conduct, the ordinance violated his right of free speech under
the Federal Constitution.

 Terminiello was later assessed a fine of 100 dollars for violation of Chicago's
breach of peace ordinance, which he appealed.

 He was convicted on a general verdict, and his conviction was affirmed by an

intermediate appellate court and by the Supreme Court of the State.

Brief: Father Arthur Terminiello, in an auditorium in Chicago, delivered a vitriolic speech

in which he criticized various political and racial groups and viciously condemned the
protesting crowd that had gathered outside the auditorium. Policemen assigned to the
event were unable to prevent several disturbances by the "angry and turbulent" crowd.
The police arrested Terminiello for "breach of the peace." He was then tried and
convicted for his central role in inciting a riot.

Issue
Did the Chicago ordinance violate Terminiello's right of free expression guaranteed by
the First Amendment?

Held

Justice William O. Douglas, writing for the majority, reversed Terminiello's conviction,
holding that his speech was protected by the First Amendment (which was made
applicable to the states by the Fourteenth Amendment) but also that the ordinance, as
construed by the Illinoiscourts, was unconstitutional. Douglas explained that the purpose of
free speech was to invite dispute even where it incites people to anger; in fact, the
provocative and inflammatory content of speech could potentially be seen as positive.
Although Douglas acknowledged that freedom of speech was not limitless and did not
apply to "fighting words" (citing Chaplinsky v. New Hampshire), he held that such limitations
were INAPPLICABLE here:

The vitality of civil and political institutions in our society depends on free discussion.
As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, 260, it is only
through free debate and free exchange of ideas that government remains responsive to
the will of the people and peaceful change is effected. The right to speak freely and to
promote diversity of ideas and programs is therefore one of the chief distinctions that sets us
apart from totalitarian regimes.

Accordingly a function of free speech under our system of government is to invite

dispute. It may indeed best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is
often provocative and challenging. It may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for acceptance of an idea. That is why
freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at
pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or
punishment, unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience, annoyance, or unrest.
See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367,
373, 1253. There is no room under our Constitution for a more restrictive view. For the
alternative would lead to standardization of ideas either by legislatures, courts, or dominant
political or community groups.

DISSENTING OPINION:

Vinson's dissent
Chief Justice Fred M. Vinson dissented on the ground that the jury instruction which the
majority objected to had been affirmed by both appellate courts. He felt that the Illinois
courts had construed the ordinance only as punishing fighting words and that
petitioner's counsel had not previously objected to the instruction below on
constitutional grounds.

Frankfurter's dissent
Freedom of speech undoubtedly means freedom to express views that challenge
deep-seated, sacred beliefs and to utter sentiments that may provoke resentment. But
those indulging in such stuff as that to which this proceeding gave rise are hardly so
deserving as to lead this Court to single them out as beneficiaries of the first departure
from the restrictions that bind this Court in reviewing judgments of State courts.
Especially odd is it to bestow such favor not for the sake of life or liberty, but to save a
small amount of property — $100, the amount of the fine imposed upon the petitioner
in a proceeding which is civil, not criminal, under the laws of Illinois, and thus subject
only to limited review.

Jackson's dissent
Justice Jackson's dissent was considerably longer and more elaborate than Vinson's or
Frankfurter's. Jackson felt the majority was ignoring the very real concern of maintaining
public order, and that the majority's generalized suspicion of any restriction of free
speech was blinding them to the fact that a riot was occurring at Terminiello's place of
speaking. His basic argument was that although the First Amendment protects the
expression of ideas, it does not protect them absolutely, in all circumstances, regardless
of the danger it may create to the public at large. To underscore his point, Jackson
reiterated the testimony given at trial by Terminiello himself, as well as excerpts from
Terminiello's speech (in which he made anti-semitic remarks, inflammatory comments
about various U.S. government officials, and statements praising fascist leaders), in
order to demonstrate the chaotic and violent scene in which Terminiello was speaking.
Jackson framed Terminiello's speech and the violent fracas which surrounded it in the
context of the global struggle between fascism and communism in the post-World War
II world. He feared that these two groups, dominated as they were by radicals and
accustomed to using violent means to propagate their ideology, were a threat to
legitimate democratic governments and that the court's decision would greatly reduce
the power of local law enforcement authorities to keep such violence in check. In
doing so, Jackson quoted from Mein Kampf, to date the only reference to the Hitler
work in a Supreme Court opinion. Jackson also noted that without the help of
the Chicago Police Department, Terminiello would not have even been able to give his
speech and that the majority's opinion was not in line with the "clear and present
danger" test set forth in Schenck v. United States.

Jackson's dissent in this case is most famous for its final paragraph:

This Court has gone far toward accepting the doctrine that civil liberty means the
removal of all restraints from these crowds and that all local attempts to maintain order
are impairments of the liberty of the citizen. The choice is not between order and
liberty. It is between liberty with order and anarchy without either. There is danger that,
if the Court does not temper its doctrinaire logic with a little practical wisdom, it will
convert the constitutional Bill of Rights into a suicide pact.