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ASHTON v. KENTUCKY.
CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY.
Argued April 28, 1966.
Decided May 16, 1966.
Petitioner was indicted and convicted for violating the Kentucky common-law crime of criminal libel. The indictment charged "the offense of criminal libel" committed "by publishing a false and malicious publication which tends to degrade or injure" three named persons. The trial court charged that "criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable." The court also charged that malice and falsity were essential elements of the offense. The Kentucky Court of Appeals, in affirming the conviction, ruled that breach of the peace is not a constitutional basis for imposing criminal liability, and held that common-law criminal libel is "the publication of a defamatory statement about another which is false, with malice." Held:
Ephraim London argued the cause for petitioner. With him on the brief were Dan Jack Combs and Melvin L. Wulf. [384 U.S. 195, 196]
John B. Browning, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief was Robert Matthews, Attorney General.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was sentenced to six months in prison and fined $3,000 for printing a pamphlet found to be prohibited by the common law of criminal libel in Kentucky. The Kentucky Court of Appeals, with three judges dissenting, affirmed petitioner's conviction. 405 S. W. 2d 562. We granted certiorari ( 382 U.S. 971 ) and reverse.
Petitioner went to Hazard, Kentucky, in 1963, where a bitter labor dispute raged, to appeal for food, clothing and aid for unemployed miners. The challenged pamphlet, which had a limited circulation, stated concerning Sam L. Luttrell, Chief of Police of Hazard:
The court also charged that malice is "an essential element of this offense" and falsity as well.
The Court of Appeals in affirming the judgment of conviction adopted a different definition of the offense of criminal libel from that given the jury by the trial court. It ruled that the element of breach of the peace was no longer a constitutional basis for imposing criminal liability. It held that the common-law crime of criminal libel in Kentucky is "the publication of a defamatory statement about another which is false, with malice."
We indicated in Shuttlesworth v. Birmingham, 382 U.S. 87 , that where an accused is tried and convicted under a broad construction of an Act which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the Act, as the trial took place under the unconstitutional construction of the Act. We think that principle applies here. Petitioner was tried and convicted according to the trial court's understanding of Kentucky law, which defined the offense as "any writing calculated to create disturbances of the peace . . . ."
We agree with the dissenters in the Court of Appeals who stated that: ". . . since the English common law of criminal libel is inconsistent with constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense in Kentucky."
The case is close to Cantwell v. Connecticut, 310 U.S. 296 , involving a conviction of the common-law crime [384 U.S. 195, 199] of inciting a breach of the peace. The accused was charged with having played in the hearing of Catholics in a public place a phonograph record attacking their religion and church. In reversing we said: "The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. . . . Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application." Id., at 308.
In Terminiello v. Chicago, 337 U.S. 1 , we held unconstitutional an ordinance which as construed punished an utterance as a breach of the peace "if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." Id., at 3. We set aside the conviction, saying:
Here, as in the cases discussed above, we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. 1 When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer. 2 We [384 U.S. 195, 201] said in Cantwell v. Connecticut, supra, that such a law must be "narrowly drawn to prevent the supposed evil," 310 U.S., at 307 , and that a conviction for an utterance "based on a common law concept of the most general and undefined nature," id., at 308, could not stand.
All the infirmities of the conviction of the common-law crime of breach of the peace as defined by Connecticut judges are present in this conviction of the common-law crime of criminal libel as defined by Kentucky judges.
[ Footnote 2 ] Stromberg v. California, 283 U.S. 359 ; Herndon v. Lowry, 301 U.S. 242 ; Thornhill v. Alabama, 310 U.S. 88 ; Winters v. New York, 333 U.S. 507 ; Smith v. California, 361 U.S. 147 ; Cramp v. Board of Public Instruction, 368 U.S. 278 ; NAACP v. Button, 371 U.S. 415 ; Baggett v. Bullitt, 377 U.S. 360 ; Dombrowski v. Pfister, 380 U.S. 479 . [384 U.S. 195, 202]