"Attempting to Incite Insurection" Part I

Attempting to Incite Insurrection:

How the trial of Angelo Herndon ended the use of

slave law to suppress the spread of ideas.

In the documenting of Georgia's history, much has been said about the plight of African Americans. Before and after slavery, during and after reconstruction, through Jim Crow and segregation, and on into the Civil Rights movement and the modern subculture, we are inundated with information on the experiences of black men and women. Much have we learned of how vague laws have been used to arrest and imprison activists, writers, and protesters, prevent them from voting, holding office, pursuing legal action. How courts and authorities have upheld, even on the flimsiest of evidence, verdicts which were obviously incorrect, and how when courts did give into reason, mob rule reacted with lynchings and murder. But we have not learned so much, nor are we confronted so much in the present, with the way these same methods were simultaneously used to arbitrarily persecute, not on the basis of skin color, but on the basis of political ideology. We are not so often told of the use of vague law and high handed authoritarianism against the communists of the early 20^th century. Possibly because communism never took a strong hold in Georgia, this part of our history is mostly forgotten, but it does exist. So we should think now, what must it have been like in 1930s Georgia to be a black activist, fighting for racial equality, but also to be an open communist, fighting for class equality? Would the persecution be two-fold, and would the same nefarious methods apply? The case of Angelo Herndon is a shining, but sometimes overlooked, example, with national implications.

On April 26, 1937, in a case titled Herndon v. Lowry, the U.S. Supreme Court decided by a slim five to four majority, with the four ardently dissenting, to strike down a Georgia law which had been originated as a means to suppress slave revolt after Nat Turner's rebellion,¹ had been modified to counter insurrection during reconstruction, and was then being used as a means of suppressing class unrest and communist activism.² The law was one against “attempting to incite insurrection,” a vague notion which was utilized to imprison radical leaders and activists during the great depression of the 1930s, and which carried a maximum sentence of death.³ It said, “Insurrection shall consist in any combined resistance to the lawful authority of the State, with intent to the denial thereof, when the same is manifested or intended to be manifested by acts of violence.”⁴

By striking down the law, the Supreme Court put forth that a person cannot be charged for unforeseen actions which may be brought about by their words, that one cannot be tried for what is said, only what is done, while pointing out that “. . . the section forbids no specific or definite act . . . It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.”⁵

The plaintiff was Angelo Herndon, a nineteen year old African American from Ohio who had days earlier participated in a march on the Fulton County Courthouse in Atlanta, demanding a resumption of recently suspended relief payments, much needed at this point in the Depression. Authorities believed the march was incited by communist organizers, arresting Herndon after a sweep of known communists, and charged him with “attempting to incite insurrection.”⁶ Herndon's case was extraordinary for several reasons, eventually drawing national attention, and was rife with inconsistencies. For one, the attempt to overthrow the Georgia state government, which he was eventually indicted with, was listed as being on July 16, 1932, five days after his arrest date of July 11.⁷ Indeed, at his original trial, it was the final opinion of the court that for him to be found guilty, “. . . it would be sufficient that he intended it (the combined and forcible resistance) to happen at any time.”⁸ Meaning that even if he were not making plans to the effect, he should be charged for hoping that such might occur, at “any time.”

The case serves a perfect example of how authorities in Georgia at the time could arbitrarily arrest any activist based on skin tone or political slant, or in this case both, with impunity through vaguely worded laws. To remove someone like Herndon, a man both black and communist, from the situation, all that was required was to accuse him of having made statements which could be construed as encouraging resistance to authority.⁹ Possession of literature promoting communism was also labeled illegal by the Georgia Penal Code, it being stated, “If any person shall bring, introduce, print, or circulate, or cause to be introduced, circulated, or printed, or aid or assist, or be in any manner instrumental in bringing, introducing, circulating, or printing within this State any paper, pamphlet, circular, or any writing, for the purpose of inciting insurrection, riot, conspiracy, or resistance against the lawful authority of the State.”¹⁰

These charges fell on Herndon as well, showing that by planning, intent, or even by sympathy with actions against the state government, one could be charged, as well as for owning literature which espoused an alternative political system. In essence, the charges blatantly contradicted the idea of free speech, as the Supreme Court would see, five years later, after much national attention.

2. 1Kuhn, Clifford M., others, Living Atlanta, An Oral History of the City 1914-1948, University of Georgia Press, 1990, 206

2. 2Hatfield, Edward A., "Angelo Herndon Case," New Georgia Encyclopedia. Retrieved [11/15/2009]: http://www.georgiaencyclopedia.org.

1. 3“Any person convicted of the offense of insurrection, or an attempt to incite insurrection, shall be punished with death; or, if the jury recommend to mercy, confinement in the penitentiary for not less than five nor more than 20 years.” Georgia Code, 26-903, 1933, quoted in U.S. Supreme Court, Herndon v. Lowry, 301 U.S. 242, 1937, http://laws.findlaw.com/us/301/242.html

2. 4Georgia Code, 26-901, 1933, quoted in U.S. Supreme Court, Herndon v. Lowry, 301 U.S. 242, 1937, http://laws.findlaw.com/us/301/242.html

2. 5U.S. Supreme Court, Herndon v. Lowry, 301 U.S. 242, 1937, http://laws.findlaw.com/us/301/242.html

2. 6Hatfield, Edward A., "Communists," New Georgia Encyclopedia. Retrieved [11/15/2009]: http://www.georgiaencyclopedia.org.

2. 7Moore, John Hammond, “The Angelo Herndon Case 1932-1937,” Phylon (1960-), Vol. 32, No. 1 (1st Qtr., 1971) 1932-1937: 60, http://www.jstor.org/stable/273598

2. 8U.S. Supreme Court, Herndon v. Lowry, 301 U.S. 242, 1937, http://laws.findlaw.com/us/301/242.html

2. 9“Any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the lawful authority of the State shall constitute an attempt to incite insurrection.” Georgia Code, 26-902, 1933, quoted in U.S. Supreme Court, Herndon v. Lowry, 301 U.S. 242, 1937, http://laws.findlaw.com/us/301/242.html

2. 10Georgia Penal Code, 26-904, 1933, quoted in U.S. Supreme Court, Herndon v. Lowry, 301 U.S. 242, 1937, http://laws.findlaw.com/us/301/242.html