Watts v. United States/Concurrence Douglas

by William O. Douglas

United States Supreme Court

394 U.S. 705

Watts  v.  United States

 Argued: April 21, 1969. ---

Mr. Justice DOUGLAS, concurring.

The charge in this case is of an ancient vintage.

The federal statute under which petitioner was convicted traces its ancestry to the Statute of Treasons (25 Edw. 3) which made it a crime to 'compass or imagine the Death of * * * the King.' Note, Threats to Take the Life of the Pre ident, 32 Harv.L.Rev. 724, 725 (1919). It is said that one Walter Walker, a 15th century keeper of an inn known as the 'Crown,' was convicted under the Statute of Treasons for telling his son: 'Tom, if thou behavest thyself well, I will make three heir to the CROWN.' He was found guilty of compassing and imagining the death of the King, hanged, drawn, and guartered. 1 J. Campbell, Lives of the Chief Justices of England 151 (1873).

In the time of Edward IV, one Thomas Burdet who predicted that the king would 'soon die, with a view to alienate the affections' of the people was indicted for 'compassing and imaging of the death of the King,' 79 Eng.Rep. 706 (1477)-the crime of constructive treason ^[1] with which the old reports are filled.

In the time of Charles II, one Edward Brownlow was indicted 'for speaking these words, that he wished all the gentry in the land would kill one another, so that the comminalty might live the better.' 3 Middlesex County Rec. 326 (1888). In the same year (1662) one Robert Thornell was indicted for saying 'that if the Kinge did side with the Bishops, the Divell take Kinge and the Bishops too.' Id., at 327.

While our Alien and Sedition Laws were in force, John Adams, President of the United States, en route from Philadelphia, Pennsylvania, to Quincy, Massachusetts, stopped in Newark, New Jersey, where he was greeted by a crowd and by a committee that saluted him by firing a cannon.

A bystander said 'There goes the President and they are firing at his ass.' Luther Baldwin was indicted for replying that he did not care 'if they fired through his ass.' He was convicted in the federal court for speaking 'sedicious words tending to defame the President and Government of the United States' and fined, assessed court costs and expenses, and committed to jail until the fine and fees were paid. See J. Smith, Freedom's Fetters 270-274 (1956).

The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever. ^[2]

Yet the present statute has hardly fared better. 'Like the Statute of Treasons, section 871 was passed in a 'relatively calm peacetime spring,' but has been construed under circumstances when intolerance for free speech was much greater than it normally might be.' Note, Threatening the President: Protected Dissenter or Political Assassin, 57 Geo.L.J. 553, 570 (1969). Convictions under 18 U.S.C. § 871 have been sustained for displaying posters urging passersby to 'hang (President) Roosevelt.' United States v. Apel, 44 F.Supp. 592, 593 (D.C.N.D.Ill.1942); for declaring that 'President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself.' United States v. Stickrath, 242 F. 151, 152 (D.C.S.D.Ohio 1917); for declaring that 'Wilson is a wooden-headed son of a bitch. I wish Wilson was in hell, and if I had the power I would put him there,' Clark v. United States, 250 F. 449 (C.A.5th Cir. 1918). In sustaining an indictment under the statute against a man who indicated that he would enjoy shooting President Wilson if he had the chance, the trial court explained the thrust of § 871:

'The purpose of the statute was undoubtedly not only the protection of the President, but also the prohibition of just such statements as those alleged in this indictment. The expression of such direful intentions and desires, not only indicates a spirit of disloyalty to the nation bordering upon treason, but is, in a very real sense, a menace to the peace and safety of the country. * * * It arouses resentment and concern on the part 933 (D.C.E.D.Mich.1918).

Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.

Mr. Justice FORTAS, with whom Mr. Justice HARLAN joins, dissenting.

Notes

1. The prosecution in those cases laid bare to the juries that the treasonous thoughts were the heart of the matter; 'the original of his Treasons proceeded from the imagination of his heart; which imagination was in itself High-Treason, albeit the same proceeded not to any overt fact: and the heart being possessed with the abundance of his traitorous imagination, and not being able so to contain itself,' burst forth in vile and traitorous Speeches, and from thence to horrible and heinous actions.' Trial of Sir John Perrot, 1 Sow.St.Tr. 1315, 1318 (1592). '(T)he high treason charged, is the compassing or imagining (in other words, the intending or designing) the death of the king; I mean his NATURAL DEATH; which being a hidden operation of the mind, an overt act is any thing which legally proves the existence of such traitorous design and intention-I say that the design against the king's natural life, is the high treason under the first branch of the statute; and whatever is evidence, which may be legally laid before a jury to judge of the traitorous intention, is a legal overt act; because an overt act is nothing but legal evidence embodied upon the record.' Trial of Thomas Hardy, 24 How.St.Tr. 199, 894 (1794). And see 84 Eng.Rep. 1057 (1708).
2. 'In the Sedition Act cases, the tendency of words to produce acts against the peace and security of the community was stretched to its utmost latitude. Likewise, judges and juries, in their willingness to presume evil intent on the part of Republican writers, largely nullified the safeguards erected by the Sedition Act itself. Criticism of the President and Congress-in which every American indulges as his birthright-was severely punished; yet this practice manifestly has only a remote tendency to injure and bring into contempt the government of the United States. In short, much that has become commonplace in Ame ican political life was put under the ban by the Federalist lawmakers and judges of 1798.' J. Miller, Crisis in Freedom 233 (1951).