In 1932, Eugene Angelo Braxton Hemdon, a young Afro-American2 member of the Communist Party, U.S.A., was arrested in Atlanta and charged with an attempt to incite insurrection against that state's lawful authority. Some five years later, in Herndon v. Lowry,3 Herndon filed a writ of habeas corpus asking the U.S. Supreme Court to consider the constitutionality of the Georgia statute under which he had been convicted. Two weeks before his twenty-fourth birthday, the Court, voting 5-4, declared the use of the Georgia political-crimes statute against him unconstitutional on the grounds that it deprived Herndon of his rights to freedom of speech and assembly and because the statute failed to furnish a reasonably ascertainable standard of guilt.4
Herndon v. Lowry is generally acknowledged as one of the great civil liberties decisions of the 1930s, one of the notable "success stories"5 of the Supreme Court's First Amendment jurisprudence. It marked the first time the Supreme Court had mentioned the Holmes-Brandeis "clear and present danger" formula in the ten years since its decision in Whitney v. California.6 It was also the first case in which the Supreme Court used the test to uphold the civil liberties claims of an individual against censorial state action,7 the first time the Supreme Court reviewed a sedition conviction from the South, and the first political-crimes conviction reviewed by the Court that involved an African-American defendant.8
Rouge et Noir Reread: A Popular Constitutional History of the Angelo Herndon Case,
S. Cal. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2177