to a
consideration of the facts of the particular case. Dissenting, Justice
Jackson dwelt at length upon the evidence which showed that a riot had
actually occurred and that the speech in question had in fact provoked a
hostile mob, incited a friendly one, and threatened violence between the
two. Conceding the premises of the majority opinion, he argued
nevertheless that: "Because a subject is legally arguable, however, does
not mean that public sentiment will be patient of its advocacy at all
times and in all manners. * * * A great number of people do not agree
that introduction to America of communism or fascism is even debatable.
Hence many speeches, such as that of Terminiello, may be legally
permissible but may nevertheless in some surroundings be a menace to
peace and order. When conditions show the speaker that this is the case,
as it did here, there certainly comes a point beyond which he cannot
indulge in provocations to violence without being answerable to
society."[111] Early in 1951 the Court itself endorsed this position in
Feiner _v._ New York.[112] Here was sustained the conviction of a
speaker who in addressing a crowd including a number of Negroes, through
a public address system set up on the sidewalk, asserted that the
Negroes "should rise up in arms and fight for their rights," called a
number of public officials, including the President, "bums," and ignored
two police requests to stop speaking. The Court took cognizance of the
findings by the trial court and two reviewing State courts that danger
to public order was clearly threatened.[113]

Public Morals

But the police power extends also to the public morals. In Winters _v._
New York[114] the question at issue was the constitutionality of a State
statute making it an offense "to print, publish, or distribute, or to
possess with intent to distribute, any printed matter principally made
up of criminal views, police reports, or accounts of criminal deeds, or
pictures, or stories of deeds of bloodshed, lust or crime," and
construed by the State courts "as prohibiting such massing of accounts
of deeds of bloodshed and lust as to incite to crimes against the
person." A divided Court, 6 Justices to 3, following the third argument
of the case before it, set the act aside on the ground that, as
construed, it did not define the prohibited acts in such a way as to
exclude those which are a legitimate exercise of the constitutional
freedom of the press; a