Beauharnais v. Illinois/Opinion of the Court

by Felix Frankfurter

United States Supreme Court

343 U.S. 250

Beauharnais  v.  Illinois

 Argued: Nov. 28-29, 1951. --- Decided: April 28, 1952

The petitioner was convicted upon information in the Municipal Court of Chicago of violating § 224a of Division 1 of the Illinois Criminal Code, Ill.Rev.Stat.1949, c. 38, § 471. He was fined $200. The section provides:

'It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. * * *'

Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the same Clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant's conviction. 408 Ill. 512, 97 N.E.2d 343. We granted certiorari in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups. 342 U.S. 809, 72 S.Ct. 39.

The information, cast generally in the terms of the statute, charged that Beauharnais 'did unlawfully * * * exhibit in public places lithographs, which publications portray depravity, criminality, unchastity or lack of virtue of citizens of Negrorace and color and which exproses (sic) citizens of Illinois of the Negro race and color to contempt, derision, or obloquy * * *.' The lithograph complained of was a leaflet setting forth a petition calling on the Mayor and City Council of Chicago 'to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro * * *.' Below was a call for 'One million self respecting white people in Chicago to unite * * *.' with the statement added that 'If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions * * * rapes, robberies, knives, guns and marijuana of the negro, surely will.' This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc.

The testimony at the trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; that, at a meeting on January 6, 1950, he passed out bundles of the lithographs in question, together with other literature, to volunteers for distribution on downtown Chicago street corners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that the leaflets were in fact distributed on January 7 in accordance with his plan and instructions. The court, together with other charges on burden of proof and the like, told the jury 'if you find * * * that the defendant, Joseph Beauharnais, did * * * manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph * * * then you are to find the defendant guilty * * *.' He refused to charge the jury, as requested by the defendant, that in order to convict they must find 'that the article complained of was likely to produce a clear and present danger of a serious substantive evil that rises for above public inconvenience, annoyance or unrest.' Upon this evidence and these instructions, the jury brought in the conviction here for review.

The statute before us is not a catchall enactment left at large by the State court which applied it. Cf. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Cantwell v. State of Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 904, 84 L.Ed. 1213. It is a law specifically directed at a defined evil, its language drawing from history and practice in Illinois and in more than a score of other jurisdictions a meaning confirmed by the Supreme Court of that State in upholding this conviction. We do not, therefore, parse the statute as grammarians or treat it as an abstract exercise in lexicography. We read it in the animating context of well-defined usage, Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232, and State court construction which determines its meaning for us. Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.

The Illinois Supreme Court tells us that § 224a 'is a form of criminal libel law'. 408 Ill. 512, 517, 97 N.E.2d 343, 346. The defendant, the trial court and the Supreme Court consistently treated it as such. The defendant offered evidence tending to prove the truth of parts of the utterance, and the courts below considered and disposed of this offer in terms of ordinary criminal libel precedents. ^[1] Section 224a does not deal with the defense of truth, but by the Illinois Constitution, Art. II, § 4, S.H.A., 'in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.' See also Ill.Rev.Stat., 1949, c. 38, § 404. Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States. ^[2] Moreover, the Supreme Court's characterization of the words prohibited by the statute as those 'liable to cause violence and disorder' paraphrases the traditional justification for punishing libels criminally, namely their 'tendency to cause breach of the peace.' ^[3]

Libel of an individual was a common-law crime, and thus criminal in the colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that the crime of libel be abolished. ^[4] Today, every American jurisdiction-the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico-punish libels directed at individuals. ^[5] 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their veryutterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. State of Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213.' Such were the views of a unanimous Court in Chaplinsky v. State of New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769. ^[6]

No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether the protection of 'liberty' in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels-as criminal libel has been defined, limited and constitutionally recognized time out of mind-directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law. ^[7] It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes. ^[8] We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this a wilful and purposeless restriction unrelated to the peace and well-being of the State.

Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades ^[9] to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Love-joy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction. ^[10] In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part. ^[11] The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groups foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allurements of northern claims. ^[12] Nine years erlier, in the very city where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroes homeless and shocked citizens into action far beyond the borders of the State. ^[13] Less than a month before the bill was enacted, East St. Louis had seen a day's rioting, prelude to an out-break, only four days after the bill became law, so bloody that it led to Congressional investigation. ^[14] A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in the summer of 1919. ^[15] Nor has tension and violence between the groups defined in the statute been limited in Illinois to clashes between whites and Negroes.

In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. 'There are limits to the exercise of these liberties (of speech and of the press). The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish.' ^[16] This was the conclusion, again of a unanimous Court, in 1940. Cantwell v. State of Connecticut, supra, 310 U.S. at page 310, 60 S.Ct. at page 906.

It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern Know-Nothings. ^[17] Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the para-dox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. 'The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment.' Anderson v. Dunn, 6 Wheat. 204, 226, 5 L.Ed. 242. Certainly the Due Process Clause does not require the legislature to be in the vanguard of science especially sciences as young as human ecology and cultural anthropology. See Tigner v. State of Texas, 310 U.S. 141, 148, 60 S.Ct. 879, 882, 84 L.Ed. 1124.

Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 189, 42 S.Ct. 72, 73, 66 L.Ed. 189. Such group-protection on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractly recognized as belonging to its members. It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois Legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved.

We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party. ^[18]

Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. 'While this Court sits' it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.

The scope of the statute before us, as construed by the Illinois court, disposes of the contention that the conduct prohibited by the law is so ill-defined that judges and juries in applying the statute and men in acting cannot draw from it adequate standards to guide them. The clarifying construction and fixed usage which govern the meaning of the enactment before us were not present, so the Court found, in the New York law held invalid in Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Nor, thus construed and limited, is the act so broad that the general verdict of guilty on an indictment drawn in the statutory language might have been predicated on constitutionally protected conduct. On this score, the conviction here reviewed differs from those upset in Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; and Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. Even the latter case did not hold that the unconstitutionality of a statute is established because the speech prohibited by it raises a ruckus.

It is suggested that while it was clearly within the constitutional power of Illinois to punish this utterance if the proceeding were properly safeguarded, in this particular case Illinois denied the defendant rights which the Due Process Clause commands. Specifically, it is argued that the defendant was not permitted to raise at the trial defenses constitutionally guaranteed in a criminal libel prosecution: (1) the defense of truth; (2) justification of the utterance as 'fair comment'; and (3) its privilege as a means for redressing grievances.

Neither by proffer of evidence, requests for instructions, nor motion before or after verdict did the defendant seek to justify his utterance as 'fair comment' or as privileged. Nor has the defendant urged as a ground for reversing his conviction in this Court that his opportunity to make those defenses was denied below. And so, whether a prosecution for libel of a racial or religious group is unconstitutionally invalid where the State did deny the defendant such opportunities is not before us. ^[19] Certainly the State may cast the burden of justifying what is patent defamation upon the defamer. The benefits of hypothetical defenses, never raised below or pressed upon us, are not to be invoked in the abstract.

As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made 'with good motives and for justifable ends'. Ill.Const. Art. II, § 4. ^[20] Both elements are necessary if the defense is to prevail. What has been called 'the common sense of American criminal law,' as formulated, with regard to necessary safeguards in criminal libel prosecutions, in the New York Constitutional of 1821, Art. VII, § 8, has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement. Assuming that defendant's offer of proof directed to a part of the defense was adequate, ^[21] it did not satisfy the entire requirement which Illinois could exact. ^[22]

Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.

We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack. ^[23] But it bears repeating-although it should not-that our finding that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law.

Affirmed.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.

Notes

1. 408 Ill. 512, 518, 97 N.E.2d 343, 346, 347. Illinois law requires that for the defense to prevail, the truth of all facts in the utterance must be shown together with good motive for publication. People v. Strauch, 247 Ill. 220, 93 N.E. 126; People v. Fuller, 238 Ill. 116, 87 N.E. 336; cf. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587.
2. See, e.g., State v. Sterman, 199 Iowa 569, 202 N.W. 222; State v. Howard, 169 N.C. 312, 313, 84 S.E. 807, 808; cf. Ogren v. Rockford Star Printing Co., supra.
3. See, e.g., People v. Spielman, 318 Ill. 482, 489, 149 N.E. 466, 469; Odgers, Libel and Slander (6th ed.), 368; Kennerly v. Hennessy, 68 Fla. 138, 66 So. 729, 19 A.L.R. 1470. Some States hold, however, that injury to reputation, as in civil libel, and not tendency to breach of the peace, is the gravamen of the offense. See Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 273 and n. 67.
4. For a brief account of this development see Warren, History of the American Bar, 236-239. See also correspondence between Chief Justice Cushing of Massachusetts and John Adams, published in 27 Mass.L.Q. 11-16 (Oct.1942). Jefferson explained in a letter to Abigail Adams, dated September 11, 1804, that to strike down the Alien and Sedition Act would not 'remove all restraint from the over-whelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures.' See Dennis v. United States, 341 U.S. 494, 522, note 4, 71 S.Ct. 857, 873, 95 L.Ed. 1137. See Miller, Crisis in Freedom, 168-169, 231-232. See also provisions as to criminal libel in Edward Livingston's famous draft System of Penal Law for Louisiana, 2 Works of Edward Livingston 100-108.
5. In eight States the offense is punished as at common law, without legislative enactment. State v. Roberts, 2 Marv., Del., 450, 43 A. 252; Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907; Robinson v. State, 108 Md. 644, 71 A. 433; Commonwealth v. Canter, 269 Mass. 359, 168 N.E. 790; State v. Burnham, 9 N.H. 34; State v. Spear, 13 R.I. 324; State v. Sutton, 74 Vt. 12, 52 A. 116; State v. Payne, 87 W.Va. 102, 104 S.E. 288, 19 A.L.R. 1465. Twelve other jurisdictions make 'libel' a crime by statute, without defining the term. Ala.Code 1940, Tit. 14, § 347; Alaska Comp.Laws Ann.1949, § 65-4-28; D.C.Code 1940, § 22-2301; Fla.Stat.Ann. § 836.01; Burns' Ind.Stat.1933, § 10-3201; Miss.Code 1942, § 2268; Neb.Rev.Stat.1943, § 28-440; N.J.Stat.Ann. § 2:146-1; N.C.Gen.Stat.1943, § 14-47; Page's Ohio Gen.Code 1939, § 13383; Wis.Stat.1949, § 348.41; Wyo.Comp.Stat.1945, § 9-1601. Thus, twenty American jurisdictions punish 'libel' as defined by the case-by-case common-law development.
6. In all but five States, the constitutional guarantee of free speech to every person is explicitly qualified by holding him 'responsible for the abuse of that right.' See Pennekamp v. State of Florida, 328 U.S. 331, 356, note 5, 66 S.Ct. 1029, 1042, 90 L.Ed. 1295. See Jefferson in Kentucky Resolutions of 1798 and 1799, 4 Elliot's Debates 540-541, and in an undated draft prepared, but not used, for his December 8, 1801, Message to Congress, Library of Congress Jefferson Papers, Vol. 119, Leaf 20569. In Carlson v. People of State of California, 310 U.S. 106, 112, 60 S.Ct. 746, 748, 84 L.Ed. 1104, we noted that the statute there invalidated made 'no exceptions with respect to the truthfulness and restraint of the information conveyed * * *.'
7. Compare reports of King v. Osborne in 2 Barn.K.B. 138, 166, 94 Eng.Rep. 406, 425; 2 Swans. 503, n (c), 36 Eng.Rep. 705, 717; W.Kel. 230, 25 Eng.Rep. 584 (1732). The present Attorney General of England asserted that this case obviated the need of special group libel legislation for Great Britain. See The (London) Times, March 26, 1952, p. 2, col. 4. See also Odgers, Libel and Slander (6th ed.), 369; Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 267-269.
8. One of the leading cases arose in Illinois. People v. Spielman, 1925, 318 Ill. 482, 149 N.E. 466, sustaining a conviction for libel on the members of the American Legion. The authorities are collected and discussed in Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 269-276.
9. See, e.g., Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col.L.Rev. 591 and 725; Riesman, Democracy and Defamation, 42 Col.L.Rev. 727, 1085 and 1282; Public Order Act, 1936, 1 Edw. VIII and 1 Geo. VI, c. 6, and 317 H.C.Deb. 1349-1473 (5th ser. 1936); 318 H.C.Deb. 49-193, 581 710, 1659-1785, 2781-2784 (5th ser. 1936); 103 H.L.Deb. 741-773, 961-972 (5th ser. 1936).
10. See generally The Chicago Commission on Race Relations, The Negro in Chicago, 1-78, and passim (University of Chicago Press, 1922); Research Memorandum No. 5, First Annual Rep.Ill. Inter-Racial Comm'n (1944).
11. The May 28, 1917, riot in East St. Louis, Illinois, was preceded by a violently inflammatory speech to unemployed workmen by a prominent lawyer of the town. Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. 11; Chicago Commission on Race Relations, The Negro in Chicago, 75. And see id., at 118-122 for literature circulated by real estate associations and other groups during the series of bombings leading up to the Chicago riots of 1919. For the Commission's comments on the role of propaganda in promoting race frictions, see id., at 589, 638-639.
12. Tables in Drake and Cayton, Black Metropolis, 8, show that between 1900 and 1920 the number of foreign-born in Chicago increased by over 1/3 and the Negro population trebled. United States census figures show the following population growth for the State as a whole and selected counties:
13. See Walling, Race War in the North, 65 The Independent 529 (1908). This article apparently led to the founding of the National Association for the Advancement of Colored People. Ovington, How the National Association for the Advancement of Colored People Began, 8 Crisis 184 (1914). See also Chicago Commission on Race Relations, The Negro in Chicago, 67-71.
14. Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. See also The Massacre of East St. Louis, 14 Crisis 219 (1917).
15. Chicago, Commission on Race Relations, The Engro in Chicago 122-133.
16. The utterances here in question 'are not,' as a detached student of the problem has noted, 'the daily grist of vituperative political debate. Nor do they represent the frothy imaginings of lunatics, or the 'idle' gossip of a country town. Rather, they indicate the systematic avalanche of falsehoods which are circulated concerning the various groups, classes and races which make up the countries of the western world.' Riesman, Democracy and Defamation; Control of Group Libel, 42 Col.L.Rev. at 727. Professor Riesman continues: 'Such purposeful attacks are nothing new, of course. * * * What is new, however, is the existence of a mobile public opinion as the controlling force in politics, and the systematic manipulation of that opinion by the use of calculated falsehood and vilification.' Id., at 728.
17. See, e.g., L. Hand, J., in a symposium in The Saturday Review of Literature, Mar. 15, 1947, pp. 23-24; Report of the Committee on the Law of Defamation, Cmd. 7536, 11 (1948).
18. It deserves emphasis that there is no such attempt in this statute. The rubric 'race, color, creed or religion' which describes the type of group, libel of which is punishable, has attained too fixed a meaning to permit political groups to be brought within it. If a statute sought to outlaw libels of political parties, quite different problems not now before us would be raised. For one thing, the whole doctrine of fair comment as indispensable to the democratic political process would come into play. See People v. Fuller, supra, 238 Ill. at page 125, 87 N.E. 336 at pages 338-339; Commonwealth v. Pratt, 208 Mass. 553, 559, 95 N.E. 105, 106. Political parties, like public men, are, as it were, public property.
19. Indeed, such defenses are evidently protected by Illinois law. See Ill.Const. Art. II, § 17, guaranteeing the right of the people to apply for redress of grievances. And see People v. Fuller, 238 Ill. 116, 125, 87 N.E. 336, 338-339, on the defense of 'fair comment' in criminal libel prosecutions.
20. The present constitution, adopted in 1870, is Illinois' third. The first two preserved the defense of truth in certain types of libel prosecutions: 'In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels the jury shall have the right of determining both the law and the fact, under the direction of the court, as in other cases.' Ill.Const.1818, Art. VIII, § 23; Ill.Const.1848, Art. XIII, § 24. The combined requirement of truth and good motives and justifiable ends, available as a defense in all libel suits, was adopted with the Constitution of 1870.
21. Defendant offered to show (1) that crimes were more frequent in districts heavily populated by Negroes than in those where whites predominated; (2) three specific crimes allegedly committed by Negroes, and (3) that property values declined when Negroes moved into a neighborhood. It is doubtful whether such a showing is as extensive as the defamatory allegations in the lithograph circulated by the defendant.
22. The defense attorney put a few questions to the defendant on the witness stand which tended toward elaborating his motives in circulating the lithograph complained of. When objections to these questions were sustained, no offer of proof was made, in contrast to the rather elaborate offer which followed the refusal to permit questioning tending to show the truth of the matter. Indeed, in that offer itself, despite its considerable detail, no mention was made of the necessary element of good motive or justifiable ends. In any event, the question of exclusion of this testimony going to motive was not raised by motion in the trial court, on appeal in Illinois, or before us.
23. The law struck down by the New Jersey court in State of New Jersey v. Klapprott, 127 N.J.L. 395, 22 A.2d 877, 880, was quite different than the one before us and was not limited, as is the Illinois statute, by construction or usage. Indeed, in that case the court emphasized that 'It is not a case of libel,' and contrasted the history at common law of criminal prosecutions for written and spoken defamation.