On error to the Sussex County Court of Quarter Sessions.
For the defendant in error, Charles T. Downing, Prosecutor of Pleas of the County of Sussex.
For the plaintiffs in error, Wilbur V. Keegan (Anthony J. Armore, of counsel).
For the American Civil Liberties Union, as amicus curice, James A. Major and Frank H. Pierce (of the New Jersey bar), Arthur Garfield Hays and John F. Finerty (of the New York bar).
Before Brogan, Chief Justice, and Justices Case and Heher.
BROGAN, CHIEF JUSTICE. These writs of error present for review four judgments of conviction, three based on indictments charging violation of statute R.S. 2:157B-5, which reads:
"Any person who shall, in the presence of two or more persons, in any language, make or utter any speech, statement or declaration, which in any way incites, counsels, promotes, or advocates hatred, abuse, violence or hostility against any group or groups of persons residing or being in this state by reason of race, color, religion or manner of worship, shall be guilty of a misdemeanor."
The fourth is based on an indictment which charges violation of R.S. 2:157B-6, which reads:
"Any owner, lessee, manager, agent or other person who shall knowingly let or hire out, or permit the use of any building, structure, auditorium, hall or room, or any part thereof, whether licensed or not, to or for the use of any organization, association, society, order, club, group or meeting of three or more persons where it is purposed or intended to hold any meeting or assembly of three or more persons whereat any provision or provisions of sections 2:157B-2 to 2:157B-5 of this title are to be violated, shall be guilty of a misdemeanor; and any person or persons who shall knowingly hire any such building, structure, auditorium, hall, or room, or any part thereof, for the purpose of using or permitting the same to be used by others for the purpose of violating any provision or provisions of said sections 2:157B-2 to 2:157B-5, shall be guilty of a misdemeanor."
The first, third and fourth indictments charge Klapprott, Kohler and Clark, the plaintiffs in error, with violation of the statute first quoted in that in June, 1940, each of them
made a speech at Andover, Sussex County, New Jersey, "inciting, counselling, promoting and advocating hatred, abuse, violence and hostility against a group of persons residing in this state by reason of race, religion and manner of worship * * *."
It would serve no purpose to reproduce and publish in this opinion the statements made by each plaintiff in error. It is sufficient to say that the individuals made statements containing unworthy and scurrilous references to the Jewish people.
The second indictment charged that Klapprott, and others, as trustees and agents of the German-American Bund Auxiliary, &c., did knowingly "permit the use of a structure for a meeting of three or more persons where it was purposed and intended to hold a meeting of three or more persons, whereat persons, in the presence of two or more persons, were to make speeches inciting, counselling, promoting and advocating hatred, abuse, violence and hostility against a group of persons residing in this state, by reason of race, religion and manner of worship, * * *," &c.
Pleas of not guilty, first entered by the defendants, were withdrawn and a demurrer to each indictment filed. The trial court, after consideration, overruled the demurrers, found the defendants guilty and sentenced them to fine and imprisonment.
There are many grounds for reversal argued. The first and second points are directed to the joint or second indictment which is attacked on the ground that it does not charge the defendants "with the commission of any crime," and that the acts alleged in the indictment do not constitute a violation of the statute. The third, fourth and fifth points challenge the statute under which the individual indictments were found as unconstitutional. The argument is that the statute (R.S. 2:157B-5) is in conflict with sections 1, 2, 5 and 18 of the first article of the ...