Fox v. Washington

Background

A person who edited and published an article called "The Nude and the Prudes" was charged under a Washington law that made it a crime to print or distribute material that advocates, encourages, or has a tendency to encourage crime, breach of the peace, violence, or disrespect for law or courts. The article described a community that bathed nude, complained about “prudes” who arrested members for indecent exposure, and urged a boycott to push back, which a jury found encouraged continuing illegal exposure. The defendant argued the law violated the Constitution, including the Fourteenth Amendment.

Reasoning

The Court read the state statute narrowly to avoid constitutional problems, treating it as aimed at encouraging actual breaches of the law rather than mere criticism of laws. The Court found the article, by indirection, encouraged persistence in actions that would violate state indecent-exposure laws and agreed with the jury’s finding. Relying on established principles about construing statutes to avoid doubtful constitutional issues, the Court held the statute sufficiently clear and not an unconstitutional restriction on speech, and affirmed the conviction.

Real world impact

The ruling means states may punish publications that actively encourage people to commit specific unlawful acts while not reaching ordinary criticism of laws. Editors and publishers who urge people to carry out illegal conduct risk criminal liability. The opinion assumes state courts will keep a narrow construction so the law targets manifested encouragement of wrongdoing rather than general disagreement with laws.