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State v. Jahr

Decided: March 16, 1971.

STATE OF NEW JERSEY, PLAINTIFF,
v.
MARC JAHR, DEFENDANT



Joelson, J.s.c.

Joelson

Defendant, who has been indicted for violation of N.J.S.A. 2A:148-16, moves to have the indictment dismissed on the ground that the statute is invalid.

N.J.S.A. 2A:148-16 provides:

Any person who utters, sells, gives away, circulates, distributes or exhibits to the view of another, or possesses with intent to utter, sell, give away, circulate, distribute or exhibit to the view of another:

a. Any book, speech, article, circular or pamphlet, made or produced in any manner or by any means set out and made legible, in any language, which in any way, in any part thereof, incites, counsels, promotes, advocates, or encourages the subversion or destruction by force of the government of the United States or of this state; or

b. Any constitution, by-laws, rules or record of the proceedings of any organization, association, society, order, club or meeting of 3 or more persons, made or produced in any manner or by any means set out and made legible, in any language, which in any way, in any part thereof, incites, counsels, promotes, advocates or encourages the subversion or destruction by force of the government of the United States or of this state; or

c. Any picture, photograph, emblem, representation, sign or token, made or produced in any manner or by any means set out and made legible, which in any way incites, counsels, promotes, advocates, encourages or symbolizes the subversion or destruction by force of the government of the United States or of this state --

Is guilty of a high misdemeanor.

The first count of the indictment charged that

defendant did possess with intent to utter, give away, circulate and distribute to divers persons there assembled, the names of whom are unknown, a certain circular or pamphlet entitled 'Rising Up in Anger', dated Summer, 1970, certain parts of which, incite, counsel, promote, advocate and encourage, subversion and destruction by force of the government of the United States and of this State, contrary to the provisions of N.J.S. 2A:148-16.

The second count charges that at the same time and place specified in the first count, he

did possess with intent to utter, give away, circulate and distribute to divers persons there assembled, the names of whom are unknown, a certain pamphlet or circular entitled, 'Rising Up in Anger', dated Summer, 1970, wherein, by means set out and made legible, were set out certain pictures, photographs, representations, signs and tokens which incite, counsel, promote, advocate, encourage and symbolize the subversion and destruction by force of the government of the United States and of this State, contrary to the provisions of N.J.S. 2A:148-16.

The third count charges that at said time and place, he

did utter, give away, circulate and distribute to divers persons there assembled, the names of whom are unknown, a certain circular or pamphlet entitled 'Rising Up in Anger', dated Summer, 1970, cirtain parts of which incite, counsel, promote, advocate and encourage subversion and destruction by force of the government of the United States and of this State, contrary to the provisions of N.J.S. 2A:148-16.

In addition to asserting that the statute in question is unconstitutional, defendant has argued that prosecution under it is barred by the preemption doctrine of Pennsylvania v. Nelson , 350 U.S. 497, 76 S. Ct. 477, 100 L. Ed. 640 (1956). That case clearly held that when the Congress enacted the so-called Smith Act, 18 U.S.C.A. ยง 2385, it preempted the field as to sedition legislation. However, in Uphaus v. Wyman , 360 U.S. 72, 79 S. Ct. 1040, 3 L. Ed. 2d 1090 (1958), the United States Supreme Court appears to veer away from the broad holding of Pennsylvania v. Nelson without ex pressly overruling it.

Thus, in Uphaus v. Wyman the Court interpreted Pennsylvania v. Nelson as holding that a state could proceed with prosecutions for sedition "against the State itself." Furthermore, Uphaus seized upon some language in Pennsylvania v. Nelson to stress the fact that federal preemption by reason of the Smith Act applies only to a state act "which proscribed the same conduct."

The statute now under consideration includes references to the subversion or destruction by force of the government of the United States and "this State," and the indictment similarly refers to "this State" as well as the government of the United States. Moreover, although the general thrust of the Smith Act and N.J.S.A. 2A:148-16 might be generally ...


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