 Section 17 of A Collection of Supreme Court Opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Greg Giordano. Mutual Film Corporation, verse Industrial Commission of Ohio, 236 U.S. 230, decided Feb. 23, 1915. Please note, this is a reading of the opinion of the court. This reading does not include any concurring or dissenting opinions. After ease of listening, this reading omits legal citations found within the text of the court's opinion. Mutual Film Corporation, appellant, verse Industrial Commission of Ohio, et al., No. 456, argued January 6 and 7, 1915, decided Feb. 23, 1915, Opinion, McKenna. Appeal from an order denying appellant, herein designated Complaintant, an interlocutory injunction sought to restrain the enforcement of an act of the General Assembly of Ohio, passed April 16, 1913, 103 Ohio Laws, 399, creating under the authority and superintendents of the Industrial Commission of the State a Board of Sensors of Motion Picture Films. The motion was presented to three judges upon the bill, supporting affidavits and some oral testimony. The bill is quite voluminous, and makes the following attacks upon the Ohio statute. 1. The statute is in violation of Section 5, 16 and 19 of Article I of the Constitution of the State, in that deprives Complaintant of remedy by due process of law by placing it in the power of the Board of Sensors to determine from standards fixed by itself what films conform to the statute, and thereby deprives Complaintant of a judicial determination of a violation of the law. 2. The statute is in violation of Articles I and XIV of the amendments to the Constitution of the United States, and of Section 11 of Article I of the Constitution of Ohio, in that it restrains Complaintant and other persons from freely writing and publishing their sentiments. 3. It attempts to give the Board of Sensors legislative power, which is vested only in the General Assembly of the State, subject to a referendum vote of the people, and that it gives to the Board the power to determine the application of the statute, without fixing any standard by which the Board shall be guided in this determination, and places it in the power of the Board, acting with similar boards in other states, to reject upon any whim or caprice any film which may be presented, and power to determine the legal status of the foreign board or boards in conjunction with which it is empowered to act. 4. The business of the Complaintant in the description Use, Object, and Effect of Motion Pictures and other films contained in the bill, stated narratively, are as follows. Complaintant is engaged in the business of purchasing, selling, and leasing films, the films being produced in other states than Ohio, and in European and other foreign countries. The film consists of a series of instantaneous photographs or positive prints of action upon the stage or in the open. By being projected upon a screen with great rapidity, there appears to the eye an illusion of motion. They depict dramatizations of standard novels, exhibiting many subjects of scientific interest, the properties of matter, the growth of the various forms of animal and plant life, and explorations and travels, also events of historical and current interest, the same events which are described in words and by photographs and newspapers, weekly periodicals, magazines, and other publications, in which photographs were promptly secured a few days after the events, which they depict happen, thus regularly furnishing and publishing news through the medium of motion pictures under the name of Mutual Weekly. Nothing is depicted of a harmful or immoral character. The Complaintant is selling and has sold during the past year for exhibition in Ohio an average of fifty-six positive prints of films per week to film exchanges doing business in that state. The average valued thereof being the sum of one hundred dollars, aggregating six thousand dollars per week or three hundred thousand dollars per annum. In addition to selling films in Ohio, Complaintant has a film exchange in Detroit, Michigan, from which it rents or leases large quantities to exhibitors in the latter state and in Ohio. The business of that exchange and those in Ohio is to purchase films from Complaintant and other manufacturers of films and rent them to exhibitors for short periods at stated weekly rentals. The amount of rentals depends upon the number of reels rented, the frequency of the changes of subject in the age or novelty of the reels rented. The frequency of exhibition is described. It is the custom of the business, observed by all manufacturers, that a subject shall be released or published in off-theaters on the same day, which is known as Release Day, and the age or novelty of the film depends upon the proximity of the day of exhibition to such release day. Films so shown have never been shown in public, and the public to whom they appeal is therefore unlimited. Such public becomes more and more limited by each additional exhibition of the reel. The amount of business in renting or leasing from the Detroit exchange for exhibition in Ohio aggregates to some of $1,000 per week. Complaintant has on hand, at its Detroit exchange, at least 2,500 reels of films, which it intends to and will exhibit in Ohio, in which it will be impossible to exhibit unless the same shall have been approved by the Board of Sensors. Other exchanges have films, duplicate prints of a large part of the Complaintant's films, for the purpose of selling and leasing to the parties residing in Ohio, and the statute of the State will require their examination and the payment of a fee therefore. The amounts of Complaintant's purchases are stated, and that Complaintant will be compelled to bear the expense of having them censored, because its customers will not purchase or hire uncensored films. The business of selling and leasing films from its offices outside of the State of Ohio to purchasers and exhibitors within the State is interstate commerce, which will be seriously burdened by the exacting of the fee for censorship, which is not properly an inspection tax, in the proceeds of which will be largely in excess of the cost of enforcing the statute, and will in no event be paid to the Treasury of the United States. The Board has demanded of Complaintant that it submit its films to censorship and threatens unless Complaintant complies with the demand to arrest any and all persons who seek to place on exhibition any film not so censored or approved by the censor, Congress on, and after, November 4, 1913, the date to which the act was extended. It is physically impossible to comply with such demand and physically impossible for the Board to censor the films with such rapidity as to enable Complaintant to proceed with its business, and the delay consequent upon such examination caused great and irreparable injury to such business, and would invoke a multiplicity of suits. There were affidavits filed in support of the bill, and some testimony taken orally. One of the affidavits showed the manner of shipping and distributing the films and was as follows. Quote, the films are shipped by the manufacturers to the film exchanges enclosed in circular metal boxes, each of which metal boxes is in turn enclosed in a fiber or wooden container. The film is in most cases wrapped around a spool or core and a circle within the metal case. Sometimes the film is received by the film exchange, wound on a reel, which consists of a cylindrical core with circular flanges to prevent the film from slipping off the core, and when so wound on the reel is also received in metal boxes, as above described. When the film is not received on a reel, it is, upon receipt, taken from the metal box, wound on a reel, and then replaced in the metal box. So wound and so enclosed in metal boxes, the films are shipped by the film exchanges to their customers. The customers take the film as it is wound on the reel from the metal box, and exhibit the pictures in their projecting machines, which are so arranged as to permit of the unwinding of the film from the reel on which it is shipped. During exhibition, the reel of film is unwound from one reel and rewound in reverse order on a second reel. After exhibition, it must be again unwound from the second reel from its reverse position and replaced on the original reel in its proper position. After the exhibitions for the day are over, the film is replaced in the metal box and returned to the film exchange, and this process is followed from day to day during the life of the film. All shipments of films from manufacturers to film exchanges, from film exchanges to exhibitors, and from exhibitors back to film exchanges, are made in accordance with regulations of the Interstate Commerce Commission, one of which provides as follows. Moving picture films must be placed in metal cases, packed in strong and tight wooden boxes of fiber pails." Another of the affidavits divided the business as follows. The motion picture business is conducted in three branches, that is to say, by manufacturers, distributors, and exhibitors. The distributors being known as film exchanges. Film is manufactured and produced in lengths of about 1,000 feet, which are placed on reels, and the market price per reel of film of 1,000 feet in length is at the rate of $0.10 per foot or $100. Manufacturers do not sell their film direct to exhibitors, but sell to film exchanges, and the film exchanges do not resell the film to exhibitors, but rent it out to them." After stating the popularity of motion pictures, and the demand of the public for new ones, and the great expense their purchase would be to exhibitors, the affidavit proceeds as follows. For that reason, film exchanges came into existence, and film exchanges, such as the Mutual Film Corporation, are like clearing houses for circulating libraries, in that they purchase the film and rent it out to different exhibitors. One reel of film being made today serves in many theaters from day to day until it is worn out. The film exchange in renting out the films supervises their circulation. An affidavit was filed, made by the, quote, general secretary of the National Board of Censorship of Motion Pictures, whose office is at Number 50, Madison Avenue, New York City. The National Board, it is a word, is an organization maintained by voluntary contributions whose object is to improve the moral quality of motion pictures, end, quote. Attached to the affidavit was a list of subjects submitted to the Board which are, quote, classified according to the nature of said subjects into scenic, geographic, historical, classical, and educational, and propagandistic, end, quote. Messers William B. Sanders, Walter N. Seligsberg, and Harold T. Clark for appellant. Messers Waldo G. Morse and Jacob Schechter as Emakai Kirie. Argument of counsel from pages 236 to 239, intentionally omitted. Messers Robert M. Morgan, Clarence Delaylin, James I. Bulger, and Mr. Timothy S. Hogan, Attorney General of Ohio, for appellees. Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court. Complaintant directs its argument to three propositions. One, the statute in controversy imposes an unlawful burden on interstate commerce. Two, it violates the freedom of speech and publication guaranteed by Section 11, Article I of the Constitution of the State of Ohio. Footnote Section 11. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right, and no law shall be passed to restrain or abridge the liberty of speech or of the press, and all criminal prosecutions, for liable the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as liable is true, and was published with good motives, and for justifiable ends, the party shall be acquitted. End of Footnote. And Three. It attempts to delegate legislative power to censors and to other boards to determine whether the statute offends in the particulars designated. It is necessary to consider only Section 3, 4, and 5. Section 3 makes it the duty of the Board to examine and censor motion-picture films to be publicly exhibited and displayed in the State of Ohio. The films are required to be exhibited to the Board before they are delivered to the Exhibitor for exhibition for which a fee is charged. Section 4. Only such films as are in the judgment and discretion of the Board of Sensors of a moral, educational, or amusing and harmless character shall be passed and approved by such Board. End. The films are required to be stamped or indesignated in a proper manner. Section 5. The Board may work in conjunction with censor boards of other states as a censor Congress, and the action of such Congress in approving or rejecting films shall be considered as the action of the State Board, and all films passed, approved, stamped, and numbered by such Congress, when the fees thereof are paid, shall be considered approved by the Board. By Section 7, a penalty is imposed for each exhibition of films without the approval of the Board, and by Section 8, any person dissatisfied with the order of the Board is given the same rights and remedies for hearing and reviewing, amendment, or vacation of the Order, quote, as is provided in the case of persons dissatisfied with the orders of the Industrial Commission, end quote. The censorship, therefore, is only a film intended for exhibition in Ohio, and we can immediately put to one side the contention that it imposes a burden on interstate commerce. It is true that, according to the allegations of the bill, some of the films of complaint are shipped from Detroit, Michigan, but they are distributed to exhibitors, purchasers, renters, and leisors in Ohio for exhibition in Ohio, and this determines the application of the statute. In other words, it is only films which are, quote, to be publicly exhibited and displayed in the State of Ohio, end quote, which are required to be examined and censored. It would be straining the doctrine of original packages to say that the films retain that form and composition, even when unrolling and exhibiting to audiences, or being ready for renting for the purpose of exhibition within the State. Could not be disclosed to the State officers. If this be so, whatever the power of the State to prevent the exhibition of films not approved, and for the purpose of this contention, it must assume the power is otherwise plenary. Films brought from another State, and only because so brought, would be exempt from the power, and films made in the State would be subject to it. There must be some time when the films are subject to the law of the State, and necessarily when they are in the hands of the exchanges, ready to be rented to exhibitors, where have passed to the latter, they are in consumption, and mingle it as much as from their nature, they can be with the other property of the State. It is true that the statute requires them to be submitted to the Board before they are delivered to the exhibitor. We have seen that the films are shipped to exchanges, and buy them rented to exhibitors, and the exchanges are described as, quote, nothing more or less than circulating libraries or clearinghouses, end, quote, and one film, quote, serves in many theaters from day to day until it is worn out, end, quote. The next contention is that the statute violates the freedom of speech and publication guaranteed by the Ohio Constitution. In this discussion, counsel have gotten into a very elaborate description of moving-picture exhibitions, and their many useful purposes as graphic expressions of opinion and sentiments, as exponents of policies, as teachers of science and history, as useful, interesting, amusing, educational, and moral, and a list of the campaigns, as counsel call them, which may be carried on as given. We may concede the praise. It is not questioned by the Ohio statute, and under its comprehensive description, campaigns of an infant variety may be conducted. Films of a, quote, a moral, educational, or amusing, and harmless character shall be passed and approved, end, quote, are the words of the statute. No exhibition, therefore, or campaign of complaintant, will be prevented if its pictures have those qualities. Therefore, however missionary of opinion films are, or may become, however educational or entertaining, there is no impediment to their value or effect in the Ohio statute. But it may be used for evil, and against that possibility the statute was enacted. Their power of amusement, and it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose, or if they should degenerate from worthy purpose. Indeed, it may go beyond that possibility. They take their attraction from the general interest, eager and wholesome it may be, in their subjects. But a purring of interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places, and to all audiences, and not only the state of Ohio, but other states, have considered it to be in the interest of the public morals and welfare to supervise moving picture exhibitions. It would have to shut our eyes to the facts of the world, to regard the precaution unreasonable, or the legislation to effect it a mere wanton interference with personal liberty. We do not understand that a possibility of an evil employment of films is denied, but a freedom from the censorship of the law and a precedent right of exhibition are asserted, subsequent responsibility only. It is contended, being incurred for abuse. In other words, as we have seen, the Constitution of Ohio is invoked, and an exhibition of film is assimilated for the freedom of speech, writing and publication assured by that instrument, and for the abuse of which only is their responsibility, and it is insisted, that as no law may be passed, to restrain the liberty of speech or of the press, no law may be passed to subject moving pictures to censorship before their exhibition. We need not pause to dilate upon the freedom of opinion and its expression, and whether by speech, writing, or printing. They are too certain to need discussion of such conceited value as to need no supporting praise, nor can there be any doubt of their breadth, nor that their underlying safeguard is, to use the words of another, quote, that opinion is free, and that conduct alone is amenable to the law, end quote. Are moving pictures within the principle, as it is contented they are? They indeed may be mediums of thought, but so are many things. So is the theatre, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press, made the same agencies of civil liberty. Council have not shrunk from this extension of their contention and cite a case in this court where the title of drama was accorded to pantomime, and such and other spectacles are said by council to be publications of ideas satisfying the definition of the dictionaries. It is, and we quote council, a means of making or announcing publicly something that otherwise might have remained private or unknown, and this being peculiarly the purpose and effect of moving pictures they come directly and is contented under the protection of the Ohio Constitution. The first impulse of the mind is to reject the contention. We immediately feel that the argument is wrong or strained, which extends the guarantees of free opinion and speech, to the multitude in the shows which are advertised on the billboards of our cities and towns, in which regards them as emblems of public safety, to use the words of Lord Camden, ordered by council, in which seeks to bring motion pictures and other spectacle into practical and legal similitude to a free press and liberty of opinion. The judicial sense supporting the common sense of the country is against the contention. As pointed out by the district court, the police power is most familiarly exercised in granting or withholding licenses for theatrical performances as a means of the regulation. The exercise of the power upon moving picture exhibitions has been sustained. It seems not to have occurred to anybody in the cited cases that freedom of opinion was repressed in the exertion of the power which was illustrated. The rights of property were only considered as involved. It cannot be but out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit. Like other spectacles, ought to be regarded, or intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known. Vivid, useful, and entertaining, no doubt. But, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power, and it may be an experience of them, that induced the State of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its criminal code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government. It does not militate against the strength of these considerations. The motion pictures may be used to amuse and instruct in other places and theaters. In churches, for instance, and in Sunday schools and public schools, nor are we called upon to say on this record whether such exceptions would be within the provisions of the statute, nor to anticipate that it will be so declared by the State courts, or so enforced by the State officers. The next contention of complaintant is that the Ohio statute is a delegation of legislative power, and void for that if not for the other reasons charged against it, which we have discussed, while administration and legislation are quite distinct powers. The line which separates exactly their exercise is not easy to define in words. It is best recognized in illustrations. Undoubtedly, the legislature must declare the policy of the law and fix the legal principles which are to control in given cases. But a administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this cannot be done, there would be infinite confusion in the laws, and in effort to detail and to particularize they would miss efficiency both in provision and execution. The objection to the statute is that it furnishes no standard of what is educational, moral, amusing, or harmless, and hence leave decision to arbitrary judgment, whim, and caprice, or, aside from those extremes, leaving it to the different views which might be entertained of the effect of the pictures, permitting the personal equation to enter, resulting, quote, in unjust discrimination against some propagandist film, end quote, while others might be approved without question. But the statute, by its provisions, guards against such variant judgments, and its terms, like other general terms, get precise from the sense and experience of men, and become certain and useful guides in reasoning and conduct. The exact specification of the instances of their application would be as impossible as the attempt would be futile. Upon such sense and experience, therefore, the law properly relies. This is many analogs and direct examples and cases. If this were not so, the many administrative agencies created by the state and national governments would be denuded of their utility, and government in some of its most important exercises become impossible. To sustain the attack upon the statute is a delegation of legislative power. Complaint insights are Harmon v. State, 66 Ohio, Statute 249, 53 LRA, 618, 64 NE 117. In that case, the statute of the state committee, a certain officer, the duty of issuing a license to the one desiring to act as an engineer, if, quote, found trustworthy and competent, end quote, was declared invalid because, as the court said, no standard was furnished by the General Assembly as to qualification, and the specification as to wherein the applicant should be trustworthy and competent, but always, quote, left to the opinion, finding, and caprice of the examiner, end quote. The case can be distinguished. Besides, later cases have recognized the difficulty of exact separation of the powers of government, and announced the principle that legislative power is completely exercised, where the law, quote, is perfect, final, and decisive in all its parts, and the discretion given only relates to its execution, end quote. Cases are cited in illustration, and the principle finds further illustration in the decisions of the court of lesser authority, but which exhibit the juridical essence of the state as the delegation of powers. Section 5 of the statute, which provides for a censor-congress of the censor-board and the boards of the other states, is referred to in emphasis of Complaintance Objection that statute delegates the legislative power, but as Complaintance says, such Congress is, quote, at present, non-existent and nebulous, end quote, and we are, therefore, not called upon to anticipate its action or pass upon the validity of Section 5. We may close this topic with a quotation of the very apt comment of the District Court upon the statute, after remarking at the language of the statute, quote, might have been extended by description in illustrative words, end quote, but doubting that it would have been the more intelligible, and that, probably by being more restrictive, might be more easily thwarted, the court said, quote, in view of the range of subjects which Complaintance claimed to have already compassed, how to speak of the natural development that will ensue, it would be next to impossible to devise language that would be at once comprehensive and automatic, end quote, to 1-5-Fed. 147. In conclusion, we may observe that the Ohio statute gives a review by the courts of the state of the decision of the board of censors, decree affirmed. End of Section 17, Recording by Greg Giordano, Newport Richey, Florida. Section 18 of a Collection of Supreme Court Opinions by the United States Supreme Court. This is the LibriVox Recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Florence Short. Debs versus United States, 249 U.S. 211. Decided March 10, 1919. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Justice Holmes delivered the opinion of the court. This is an indictment under the Espionage Act of June 15, 1917, as amended by the Act of May 16, 1918. It has been cut down to two counts, originally the third and fourth. The former of these alleges that on or about June 16, 1918, at Canton, Ohio, the defendant caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States, and with intent so to do, delivered to an assembly of people at public speech set forth. The fourth count alleges that he obstructed and attempted to obstruct the recruiting and enlistment service of the United States into that end and with that intent, delivered the same speech, again set forth. There was a demurrer to the indictment on the ground that the statute is unconstitutional, as interfering with free speech, contrary to the First Amendment, and to the several counts as insufficiently stating the supposed offense. This was overruled subject to exception. There were other exceptions to the admission of evidence, with which we shall deal. The defendant was found guilty and was sentenced to 10 years imprisonment. On each of the two counts, the punishment to run concurrently on both, the main theme of the speech was socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service, and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech. The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class. These being Wagoneck, Baker, and Ruffenburg, who had been convicted of aiding and abetting another in failing to register for the draft. Ruffenburg versus United States, 245, US, 480. He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more. But he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States. After considerable discourse that it is unnecessary to follow, he took up the case of Kate Richards O'Hare, convicted of obstructing the enlistment service, praised her for her loyalty to socialism and otherwise, and said that she was convicted on false testimony under a ruling that would seem incredible to him if he had not had some experience with the federal court. We mentioned this passage simply for its connection with evidence put in at the trial. The defendant spoke of other cases and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles, that the subject class has had nothing to gain and all to lose, including their lives, that the working class, who furnished the corpses, have never yet had a voice in declaring war and never yet had a voice in declaring peace. Quote, you have your lives to lose. You certainly ought to have the right to declare war if you consider a war necessary. End of quote. The defendant next mentioned Rose Pastor Stokes, convicted of attempting to cause insubordination and refusal of duty in the military forces of the United States and obstructing the recruiting service. He said that she went out to render her service to the cause in this day of crises and they sent her to the penitentiary for ten years. That she had said no more than the speaker had said that afternoon, that if she was guilty so was he and that he would not be cowardly enough to plead his innocence, but that her message that opened the eyes of the people must be suppressed and so after a mock trial before a packed jury and a corporation tool on the bench, she was sent to the penitentiary for ten years. There followed personal experiences and illustrations of the growth of socialism, a glorification of minorities, and a prophecy of the success of the international socialist crusade with the interjection that quote, you need to know that you are fit for something better than slavery and cannon fodder. End of quote. The rest of the discourse had only the indirect, though not necessarily ineffective bearing on the offenses alleged that is to be found in the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of a high price of coal, et cetera, with the implication running through it all, that the working men are not concerned in the war and a final exhortation, quote, don't worry about the charge of treason to your masters, but be concerned about the treason that involves yourselves. End of quote. The defendant addressed the jury himself and while contending that his speech did not warrant the charges said, quote, I have been accused of obstructing war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone. End of quote. The statement was not necessary to warrant the jury in finding that one purpose of the speech, whether incidental or not does not matter, was to oppose not only war in general, but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended, and if, in all circumstances, that would be its probable effect. It would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief. The chief defenses upon which the defendant seemed willing to rely were the denial that we have dealt with and that based upon the First Amendment to the Constitution disposed of in Schenck versus United States, 249 US 47. His counsel questioned the sufficiency of the indictment. It is sufficient in form for a work versus United States, 249 US 204. The most important question that remains is raised by the admission and evidence of the record of the conviction of Ruffenberg, Wagen-Necht and Baker, Rose Pastor Stokes, and Kate Richards O'Hare. The defendant purported to understand the grounds on which these persons were imprisoned and it was proper to show what those grounds were in order to show what he was talking about, to explain the true import of his expression of sympathy and to throw light on the intent of the address so far as the present matter is concerned. There was introduced also an anti-war proclamation and program adopted at St. Louis in April, 1917, coupled with testimony that about an hour before his speech, the defendant had stated that he approved of that platform in spirit and in substance. The defendant referred to it in his address to the jury, seemingly with satisfaction and willingness that it should be considered in evidence, but his counsel objected and has argued against its admissibility at some length. This document contained the usual suggestion that capitalism was the cause of the war and that our entrance into it, quote, was instigated by the predatory capitalists in the United States. End of quote. It alleged that the war of the United States against Germany could not, quote, be justified even on the plea that it is a war in defense of American rights or American honor. End of quote. It said, quote, we brand the declaration of war by our governments as a crime against the people of the United States and against the nations of the world. In all modern history, there has been no war more unjustifiable than the war in which we are about to engage. End of quote. Its first recommendation was, quote, continuous active and public opposition to the war through demonstrations, mass petitions and all other means within our power. End of quote. Evidence that the defendant accepted this view in this declaration of his duties at the time that he made his speech is evidence that if in that speech he used the words, tending to obstruct the recruiting service, he meant that they should have that effect. The principle is too well established and too manifestly good sense to need citation of the books. We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, et cetera. And unless the defendant had this specific intent to do so in his mind. Without going into further particulars, we are of the opinion that the verdict on the fourth count for obstructing and attempting to obstruct the recruiting service of the United States must be sustained. Therefore, it is less important to consider whether that upon the third count for causing and attempting to cause insubordination, et cetera in the military and naval forces is equally impregnable. The jury were instructed that for the purposes of the statute, the persons designated by the Act of May 18, 1917, C-15, 40, stat 76 registered and enrolled under it and the subject to be called into the act of service were a part of the military forces of the United States. The government presents a strong argument from the history of the statutes that the instruction was correct and in accordance with established legislative usage. We see no sufficient reason for differing from the conclusion but think it unnecessary to discuss the question in detail. Judgment affirmed. End of section 18. Section 19 of a collection of Supreme Court opinions by the United States Supreme Court. This is a LibriVox recording or LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. West Virginia State Board of Education, verse Barnett 319 US 624, decided June 14th, 1943. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Justice Jackson delivered the opinion of the court. Following the decision of this court on June 3rd, 1940 in Minersville School District, verse Gobetis, 310 US 586, the West Virginia legislature amended its statutes to require all schools therein to conduct courses of instruction in history, civics, and in the constitutions of the United States and of the state. Quote, for the purpose of teaching, fostering, and perpetuating the ideals, principles, and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government. End quote. Appellant, Board of Education was directed with advice of the state superintendent of schools to, quote, prescribe the courses of study covering these subjects, end quote, for public schools. The act made it a duty of private, parochial, and denominational schools to prescribe courses of study, quote, similar to those required for the public schools, end quote. Footnote, section 134, West Virginia, quote, 1941, supplement. Quote, in all public, private, parochial, and denominational schools located within this state, there shall be given regular courses of instruction in history of the United States, in civics, and in the constitutions of the United States and of the state of West Virginia, for the purpose of teaching, fostering, and perpetuating the ideals, principles, and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government of the United States, and of the state of West Virginia. The State Board of Education shall, with the advice of the state superintendent of schools, prescribe the courses of study covering these subjects for the public elementary and grammar schools, public high schools, and state normal schools. It shall be the duty of the officials or boards, having authority over the respective private, parochial, and denominational schools to prescribe courses of study for the schools under their control and supervision similar to those required for the public schools. End quote. End footnote. The Board of Education on January 9th, 1942, adopted a resolution containing recitals taken largely from the court's gobatist opinion, and ordering that the salute to the flag become, quote, a regular part of the program of activities in the public schools, end quote. That all teachers and pupils, quote, shall be required to participate in the salute honoring the nation represented by the flag, provided, however, that refusal to salute the flag be regarded as an act of insubordination, and shall be dealt with accordingly, end quote. The resolution originally required the commonly accepted salute to the flag, which it defined. Objections to the salute as being too much like Hitler's were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the Federation of Women's Clubs. Footnote. The National Headquarters of the United States Flag Association takes the position that the extension of the right arm in this salute to the flag is not the Nazi fascist salute, quote, although quite similar to it in the pledge to the flag, the right arm is extended and raised palm upward, whereas the Nazis extend the arm practically straight to the front, the fingertips being about even with the eyes, palm downward, and the fascists do the same, except they raise the arms slightly higher, end of quote. James A. Moss, the flag of the United States, its history and symbolism, 1914, page 108, end of footnote. Some modifications appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses. Footnote. They have offered in lieu of participating in the flag salute ceremony, quote, periodically and publicly, end quote, to give the following pledge, quote, I have pledged my unqualified allegiance and devotion to Jehovah, the almighty God, and to his kingdom, for which Jesus commands all Christians to pray. I respect the flag of the United States and acknowledge it as a symbol of freedom and justice to all. I pledge allegiance and obedience to all the laws of the United States that are consistent with God's law, as set forth in the Bible, end quote, end of footnote. What is now required is the stiff arm salute, the saluter to keep the right hand raised with palm turned up while the following is repeated, quote, I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation, indivisible with liberty and justice for all, end quote. Failure to conform is in subordination dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile, the expelled child is unlawfully absent and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution and, if convicted, are subject to fine, not exceeding $50 and jail term, not exceeding 30 days. Appellese, citizens of the United States and of West Virginia brought suit in the United States District Court for themselves and others similarly situated, asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal governments. Their religious beliefs include a literal version of Exodus chapter 20, verses four and five, which says, quote, thou shalt not make unto thee any graven image nor any likeness of anything that is in heaven above or that is in the earth beneath or that is in the water under the earth. Thou shalt not bow down thyself to them nor serve them," end, quote. They consider that the flag is an image within this command. For this reason they refuse to salute it. Children of this faith have been expelled from school and are threatened with exclusion for no other cause, officials threatened to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted and are threatened with prosecutions for causing delinquency. The Board of Education moved to dismiss the complaint, setting forth these facts and alleging that the law and regulations are an unconstitutional denial of religious freedom and of freedom of speech and are invalid under the due process and equal protection clauses of the 14th Amendment of the Federal Constitution. The cause was submitted to the pleadings of a district court of three judges. It restrained enforcement as to the plaintiffs and those of that class. The Board of Education brought the case here by direct appeal. This case calls upon us to consider a precedent decision as the court throughout its history often has been required to do. Before returning to the Gobeta's case, however, it is desirable to notice certain characteristics by which this controversy is distinguished. The freedom asserted by these appellies does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the state to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The state asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude. As the Chief Justice said in dissent in the Gobeta's case, the state may, quote, require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guarantees of civil liberty which tend to inspire patriotism and the love of country. End quote. Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to arouse loyalties constitutionally may be shortcut by substituting a compulsory salute and slogan. This issue is not prejudiced by the Court's previous holding that where a state without compelling attendance extends college facilities to pupils who voluntarily enroll. It may prescribe military training as part of the course without offense to the Constitution. It was held that those who take advantage of its opportunity may not, on ground of conscience, refuse compliance with such conditions, Hamilton v. Regents. In the present case, attendance is not optional. That case is also to be distinguished from the present one because independently of college privileges or requirements, the state has power to raise militia and impose the duties of service therein upon its citizens. There is no doubt that in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas, the use of an emblem or flag to symbolize some system, idea, institution or personality is a shortcut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followers to a flag or banner, a color or design. The state announces rank, function and authority through crowns and mesas, uniforms and black robes. The church speaks through the cross, the crucifix, the altar and shrang and clerical raiment. Symbols of state often convey political ideas, just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect, a salute, a bowed or bared head, a bended knee, a person gets from a symbol the meaning he puts into it and what is one man's comfort and inspiration is another's jest and scorn. Over a decade ago, Chief Justice Hughes led this court in holding that the display of a red flag as a symbol of opposition by peaceful and legal means to organize the government was protected by the free speech guarantees of the Constitution, Stromberg v. California. Here it is the state that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights. Footnote. Early Christians were frequently persecuted for their refusal to participate in ceremonies before the statue of the emperor or other symbol of imperial authority. The story of William Tell's sentence to shoot an apple off his son's head for refusal to salute a bailiff's hat is an ancient one. The Quakers, William Penn included, suffered punishment rather than uncover their heads in deference to any civil authority. And footnote. It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forgo any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate a scent by words without belief or by a gesture barren of meaning. It is now commonplace that censorship or suppression of expression of opinion is tolerated by our constitution, only when the expression presents a clear and present danger of action of a kind the state is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, we are required to say that a bill of rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind. Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad, or merely innocuous. Any credo of nationalism is likely to include what some disapprove of or omit what others think essential and to give off different overtones as it takes on different accents or interpretations. If official power exists to coerce acceptance of any patriotic creed what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority whose power to prescribe would no doubt include power to amend. Hence, validity of the asserted power to force an American citizen publicly to profess any statement of belief or engage in any ceremony of ascent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question. Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellee's motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory right to infringe constitutional liberty of the individual. Footnote. Cushman constitutional law in 1939, 1940, 35, American political science review, pages 250 and 271, observes, quote, all of the eloquence by which the majority extoll the ceremony of flag saluting as a free expression of patriotism turned sour when used to describe the brutal compulsion which requires a sensitive and conscientious child to stultify himself in public, end quote, end footnote. It is not necessary to inquire whether non-conformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty. The golpetist's decision, however, assumed, as did the argument in that case and in this, that power exists in the state to impose the flag salute discipline upon schoolchildren in general. The court only examined and rejected a claim based on religious beliefs of immunity from an unquestioned general rule. The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our constitution. We examine rather than assume existence of this power and against this broader definition of issues in this case, reexamine specific grounds assigned for the golpetist's decision. One, it was said that the flag salute controversy confronted the court with, quote, the problem which Lincoln cast in memorable dilemma, quote, must a government of necessity be too strong for the liberties of its people or too weak to maintain its own existence, end quote, and that the answer must be in favor of strength. Minersville School District v. Golpetist's Supra at 596. End quote. We think these issues may be examined free of pressure or restraint growing out of such considerations. It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies. Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government. And by making us feel safe to live under it makes for its better support. Without promise of a limiting bill of rights, it is doubtful if our constitution could have mustard enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end. The subject now before us exemplifies this principle. Free public education if faithful to the ideal of secular instruction and political neutrality will not be partisan or enemy of any class, creed, party, or faction. If it is to impose any ideological discipline, however, each party or denomination must seek to control or failing that to weaken the influence of the educational system. Observance of the limitations of the constitution will not weaken government in the field appropriate for its exercise. Two, it was also considered in the Gobotis case that functions of educational officers in states, counties, and school districts were such that to interfere with their authority would in effect make us the school board for the country. The 14th amendment as now applied to the states protects the citizens against the state itself and all of its creatures, boards of education not accepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. Such boards are numerous and their territorial jurisdiction often small, but small and a local authority may feel less sense of responsibility to the constitution and agencies of publicity may be less vigilant in calling it to account. The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the army contrast sharply with these local regulations and matters relatively trivial to the welfare of the nation. There are village tyrants as well as village Hamptons, but none who acts under color of law is beyond reach of the constitution. The Gobitus opinion reasoned that this is a field where courts possess no marked and certainly no controlling competence, that it is committed to the legislatures as well as the courts to guard cherished liberties and that it is constitutionally appropriate to, quote, fight out the wise use of legislative authority in the form of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, end quote. Since all the effective means of inducing political changes are left free, the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections. In weighing arguments of the parties, it is important to distinguish between the due process clause of the 14th Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the 14th Amendment because it also collides with the principles of the First is much more definite than the test when only the 14th is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a state to regulate, for example, a public utility may well include so far as the due process test is concerned, power to impose all the restrictions which a legislature may have a rational basis for adopting. But freedoms of speech and of press, of assembly and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. It is important to note that while it is the 14th Amendment which bears directly upon the state, it is the more specific limiting principles of the First Amendment that finally govern this case. Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights conceived as part of the pattern of liberal government in the 18th century into concrete restraints on officials dealing with the problems of the 20th century is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to the soil in which the lazy fair concept or principle of non-interference has withered, at least as to economic affairs and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions. We cannot because of modest estimates of our competence in such specialties as public education withhold the judgment that history authenticates as the function of this court when liberty is infringed. Four, lastly, this is the very heart of the gobetter's opinion. It reasons that, quote, national unity is the basis of national security, end quote, that the authorities have, quote, the right to select appropriate means for its attainment, end quote. And hence reaches the conclusion that such compulsory measures toward national unity are constitutional. Upon the verity of this assumption depends our answer in this case. National unity as an end with officials may foster by persuasion and example is not in question. The problem is whether under our constitution compulsion as here employed is a permissible means for its achievement. Struggles to course, uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon, but at other times and places the ends have been racial or territorial security support of a dynasty or regime and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever increasing severity. As governmental pressure toward unity becomes greater so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials should compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the inquisition as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the first amendment of our constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the state or of its nature or origin of its authority. We have set up government by consent of the governed and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the constitution with no fear that freedom to be intellectually and spiritually diverse, or even contrary, will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the state as those we deal with here, the price is not too great, but freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or any other matter of opinion, or for citizens to confess by word or act, their faith, their in. If there are any circumstances which permit an exception, they do not now occur to us. We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit, which it is the purpose of the First Amendment of our Constitution to reserve from all official control. The decision of this court in Minersville School District, Vigobotus, and the holdings of those few percurium decisions which preceded and foreshadowed it are overruled, and the judgment and joining enforcement of the West Virginia Regulation is affirmed. End of section 19. Section 20 of a collection of Supreme Court opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Gray versus Sanders, 372 U.S. 368. Decided March 18th, 1963. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Justice Douglas delivered the opinion of the court. The suit was instituted by Appellee, who was qualified to vote in primary and general elections in Fulton County, Georgia, to restrain appellants from using Georgia's county unit system as basis for counting votes in a Democratic primary for the nomination of United States Senator and statewide of officers and for declaratory relief. Appellants are the chairman and secretary of the Georgia State Democratic Executive Committee and the secretary of state of Georgia. Appellee alleges that the use of the county unit system in counting, tabulating, consolidating, and certifying votes cast in primary elections for statewide offices violates the Equal Protection Clause and the Due Process Clause of the 14th Amendment and the 17th Amendment. As the constitutionality of a state statue was involved and the question was a substantial one, a three-judge court was properly convened. Appellants moved to dismiss and they also filed an answer denying that the county unit system was unconstitutional and alleging that it was designed, quote, to achieve a reasonable balance as between urban and rural electoral power. End of quote, under Georgia law, each county is given a specified number of representatives in the lower house of the General Assembly. This county unit system at the time this suit was filed was employed as follows in statewide primaries. One, candidates for nominations who received the highest number of popular votes in a county were considered to have carried the county and to be entitled to two votes for each representative which the county is entitled in the lower house of the General Assembly. Two, the majority of the county unit vote nominated a United States Senator and Governor. The plurality of the county vote nominated the others. Appellee asserted that the total population of Georgia in 1960 was 3,943,116. 116, that the population of Fulton County where he resides was 556,326. That the residents of Fulton County comprised 14.11% of Georgia's total population. But that under the county unit system, the six unit votes of Fulton County constituted 1.46% of the total of 410 unit votes or 1.10 of Fulton County's percentage of statewide population. The complaint further alleged that Eccles County the least populous county in Georgia had a population in 1960 of 1,876 or 0.05% of the state's population. But the unit vote of Eccles County was 0.48% of the total unit vote of all counties in Georgia were 10 times Eccles County statewide percentage of population. One unit vote in Eccles County represented 938 residents, whereas one unit vote in Fulton County represented 92,721 residents. Thus one resident in Eccles County had an influence in the nomination of candidates equivalent to 99 residents of Fulton County. On the same day as the hearing in the district court, Georgia amended the statutes challenged in the complaint. This amendment modified the county unit system by allocating units to counties in accordance with a quote bracket system, and a quote instead of doubling the number of representatives of each county in the lower house of the Georgia Assembly. Counties with from zero to 15,000 people were allotted two units. An additional one unit was allotted for the next 5,000 persons. An additional unit for the next 10,000 persons. Another unit for each of the next two brackets of 15,000 persons. And there after two more units for each increase of 30,000 persons. Under the amended act, all candidates for statewide office, not merely for Senator and Governor as under the earlier act, are required to receive a majority of a county unit votes to be entitled to nomination in the first primary. In addition, in order to be nominated in the first primary, a candidate has to receive a majority of the popular votes unless there are only two candidates for the nomination and each receives an equal number of unit votes. In which event the candidate with the popular majority wins. If no candidate receives both a majority of the unit votes and a majority of the popular votes, a second runoff primary is required between the candidate receiving the highest number of unit votes and the candidate receiving the highest number of popular votes. In the second primary, the candidate receiving the highest number of unit votes is to prevail. But again, if there is a tie in unit votes, the candidate with a popular majority wins. The Pellee was allowed to amend his complaint so as to challenge the amended act. The district court held that the amended act had some of the vices of the prior act. It stated that under the amended act, quote, the vote of each citizen counts for less and less as the population of the county of his residence increases. End of quote. It went on to say, quote, there are 97 two-unit counties totaling 194 unit votes and 22 counties totaling 66 unit votes. Altogether, 260 unit votes within 14 of a majority. But no county in the above has as much as 20,000 population. The remaining 40 counties range in population from 20,481 to 556,326, but they control altogether only 287 county unit votes. Combination of the units from the counties having the smallest population gives counties having population of one third of the total in the state a clear majority of county units. End of quote. The district court held that as a result of Baker versus Carr, it had jurisdiction that a just disciple case was stated that Pellee had standing and that the Democratic primary in Georgia is, quote, data, end of quote, action within the meaning of the 14th amendment. It held that the county unit system as applied violates the equal protection clause and it issued an injunction not against conducting any party primary election under the county unit system, but against conducting such an election under a county unit system that does not meet the requirements specified by the court. In other words, the district court did not proceed on the basis that in a statewide election every qualified person was entitled to one vote and that all weighted voting was outlawed. Rather, it allowed a county unit system to be used in waiting the votes if the system showed no greater disparity against a county than exists against any state in the conduct of national elections. Thereafter, the Democratic committee voted to hold the 1962 primary election for the statewide offices mentioned on a popular vote basis. We noted probable jurisdiction. We agree with the district court that the action of this party and the conduct of its primary constitutes state action within the meaning of the 14th amendment. Judge Sibley, writing for the court in Chapman versus King, showed with meticulous detail the manner in which Georgia regulates the conduct of party primaries. And he concluded, quote, we think these provisions show that the state through the managers it requires collaborates in the conduct of the primary and puts its power behind the rules of the party. It adopts the primary as a part of the public election machinery. The exclusions of voters made by the party by the primary rules become exclusions enforced by the state. End of quote. We agreed with that result and conclude that state regulation of this preliminary phase of the election process makes it state action. We also agree that a Pellee, like any person whose right to vote is impaired, has standing to sue. Moreover, we think the case is not moot by reason of the fact that the Democratic committee voted to hold the 1962 primary on a popular vote basis. But for the injunction issued below, the 1962 act remains in force. And if the complaint were dismissed, it would govern future elections. In addition, the voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted in longstanding. For if the case were dismissed as moot, the Pellee would be free to return to their old ways. End of quote. On the merits, we take a different view of the nature of the problem than did the district court. The case, unlike Baker versus Carr, Supra, does not involve a question of the degree to which the Equal Protection Clause of the 14th Amendment limits the authority of a state legislature in designing the geographical districts from which representatives are chosen, either for the state legislature or for the federal House of Representatives. Nor does it include the related problems of Gomillion versus Lightfoot, where quote, gerrymandering, end of quote, was used to exclude a minority group from participation in municipal affairs. Nor does it present the question, inherent in the bicameral form of our federal government, whether a state may have one House chosen without regard to population. The district court, however, analogized Georgia's use of the county unit system in determining the results of a statewide election to phases of our federal system. It pointed out that under the Electoral College, required by Article II, Section I of the Constitution and the 12th Amendment in the election of the president, voting strength, quote, is not in exact proportion to population. Recognizing that the Electoral College was set up as a compromise to enable the formation of the union among the several sovereign states, it still could hardly be said that such a system used in a state among its counties, assuming rationality and absence of arbitrariness and end result could be termed invidious, end of quote. Accordingly, the district court, as already noted, held that use of the county unit system in counting the votes in a statewide election was permissible, if quote, that disparity against any county is not in excess of the disparity that exists against any state in the most recent Electoral College allocation, end of quote. Moreover, the district court held that use of the county unit system in counting the votes in a statewide election was permissible, quote, if the disparity against any county is not in excess of the disparity that exists under the equal proportions formula for representation of the several states in the Congress, end of quote. The assumption implicit in these conclusions is that since equality is not inherent in the Electoral College and since precise equality among blocks of votes in one state or in the several states when it comes to the election of members of the House of Representatives is never possible, precise equality is not necessary in statewide elections. We think the analogies to the Electoral College to districting and redistricting and to other phases of the problems of representation in state or federal legislatures or conventions are in opposite. The inclusion of the Electoral College in the Constitution as the result of specific historical concerns validated the collegiate principle despite its inherent numerical inequality but implied nothing about the use of an analogous system by a state in a statewide election. No such specific accommodation of the latter was ever undertaken and therefore no validation of its numerical inequality ensued. Nor does the question here have anything to do with the composition of the state or federal legislature. And we intimate no opinion on the constitutional phases of that problem beyond what we say in Baker versus Carr, Supra. The present case is only a voting case. Georgia gives every qualified voter one vote in a statewide election but in counting those votes she employs the counting unit system which in end result waits the rural vote more heavily than the urban vote and waits some small rural counties heavier than other large rural counties. States can within limits specify the qualifications of voters in both state and federal elections. The constitution indeed makes voters qualifications rest on state law even in federal elections. As we held in Lasseter versus Northampton County election board, a state may if it chooses require voters to pass literacy tests provided of course that literacy is not used as a cloak to discriminate against one class or group. But we need not determine all the limitations that are placed on this power of a state to determine the qualifications of voters for a Pellee is a qualified voter. The 15th amendment prohibits a state from denying or abridging a Negro's right to vote. The 19th amendment does the same for women. If a state in a statewide election waited the male vote more heavily than the female vote or the white vote more heavily than the Negro vote none could successfully contend that that discrimination was allowable. How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote, whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the equal protection clause of the 14th amendment. The concept of we the people under the constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his state when he cast his ballot in favor of one of several competing candidates underlies many of our decisions. The court has consistently recognized that all qualified voters have a constitutionally protected right quote to cast their ballots and have them counted at congressional elections and a quote, every voter's vote is entitled to be counted once. It must be correctly counted and reported. As stated in the United States versus Moseley quote, the right to have one's vote counted and a quote has the same dignity as quote, the right to put a ballot in a box and a quote, it can be protected from the diluting effect of illegal ballots. And these rights must be recognized in any preliminary election that in fact determines the true weight of vote will have. The concept of political equality in the voting booth contained in the 14th Amendment extends to all phases of state elections. And as previously noted, there is no indication in the constitution that home side or occupation affords a permissible basis for distinguishing between qualified voters within the state. The only waiting of votes sanctioned by the constitution concerns matters of representation such as the allocation of senators irrespective of population and the use of the electoral college in the choice of a president. Yet when senators are chosen, the 17th Amendment states that choice must be made quote, by the people and a quote, minors, felons and other classes may be excluded. But once the class of voters is chosen and their qualification specified, we see no constitutional way by which equality of voting power may be evaded. As we stated in Goldmillion versus Lightfoot quote, when a state exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. And a quote, the conception of political equality from the Declaration of Independence to Lincoln's Gettysburg address to the 15th, 17th and 19th Amendments can mean only one thing. One person, one vote. While we agree with the district court on most phases of the case and think it was right in enjoining the use of the county unit system in tabulating the votes, we vacate its judgment and remand the case so that a decree in conformity with our opinion may be entered. It is so ordered. Judgment vacated and case remanded. End of section 20.