George Sutherland

“ The appellant has been convicted of an attempt to incite insurrection in violation of section 56 of the Penal Code of Georgia. He has been convicted after a charge by the trial court that to incur a verdict of guilty he must have advocated violence with the intent that his advocacy should be acted on immediately and with reasonable grounds for the expectation that the intent would be fulfilled. The appellant did not contend then, nor does he contend now, that a statute so restricted would involve an unconstitutional impairment of freedom of speech. ”

“ What the appellant is now asking of us is an opportunity to be heard. That privilege is his unless he has thrown it away by silence and acquiescence when there was need of speech and protest.
We are told by the state that the securities of the Constitution should have been invoked upon the trial. The presiding judge should have been warned that a refusal to accept the test of clear and present danger would be a rejection of the restraints of the Fourteenth Amendment. But the trial judge had not refused to accept the test proposed ”

“ New York. The extracts show upon their face that they have in view a statute denouncing a particular doctrine and prohibiting attempts to teach it. They give no test of the bond of union between an idea and an event.
What has been said as to the significance of the opinions in the two cases against Carr has confirmation in what happened when appellant was brought to trial. The judge who presided at that trial had the first of those opinions before him when he charged the jury, or so we may assume. ”

“ In the course of the opinion it said (176 Ga. 747, page 750, 169 S.E. 201, 202) : 'It (the state) cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. ”

“ State (No. 2) , 176 Ga. 747, 169 S.E. 201. The first of these cases was decided in November, 1932, before the trial of the appellant, which occurred in January, 1933. The second was decided in March, 1933, after the appellant had been convicted, but before the denial or submission of his motion for a new trial. Neither is decisive of the question before us now.
Carr v. State, No. 1, came up on demurrer to an indictment. The prosecution was under section 58 of the Penal Code, which makes it a crime to circulate revolutionary documents. ”

“ Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 677-678, 50 S.Ct. 451, 74 L.Ed. 1107; American Surety Co. v. Baldwin, 287 U.S. 156, 164, 53 S.Ct. 98, 77 L.Ed. 231, 86 A.L.R. 298; Great Northern R. Co. v. Sunburst Co., 287 U.S. 358, 367, 53 S.Ct. 145, 77 L.Ed. 360, 85 A.L.R. 254. The whole point, therefore, is whether the ruling here assailed should have been anticipated.
The trial court instructed the jury that the evidence would not be sufficient to convict the defendant if it did not indicate that his advocacy would be acted upon immediately ”