During Black History Month, we should remember those who had the courage to face government opposition — even imprisonment — for their convictions.
Imagine, for example, the bravery of a young black man who traveled to the South to enlist members for the Communist Party in the early 1930s. The Chicago Defender called him a “young Communist martyr.”
At age 19, Angelo Herndon moved from Kentucky to Atlanta in 1932 to help recruit for the Communist Party. He was charged under a Reconstruction-era state law prohibiting attempts to incite an insurrection. Herndon had helped organize a hunger-relief protest that consisted of 600 whites and 400 blacks. State officials said he had distributed Communist Party leaflets and had helped organize meetings to increase party membership.
Officials arrested and beat Herndon as he went to his post office box to retrieve his mail. In jail, Herndon suffered immensely. In his autobiography, Let Me Live (1937), he wrote: “For three months, I rotted in the degenerate atmosphere of the jail. There were times when I was afraid for my sanity.”
In January 1933, the state of Georgia sought the death penalty against Herndon. The prosecutors played on the jury’s fears of Communists. They said that the defendant would “lead a red army into this country and destroy our civilization.” Herndon countered that the capitalists used “racial prejudice as a means of exploiting workmen — white and black.” Later that month, a Fulton County Superior Court jury sentenced him to 18-20 years in prison.
From prison, Herndon filed appeals in the state courts and then all the way to the U.S. Supreme Court. Wrote Hank Fuller in The Chicago Defender in July 1933: “For Angelo Herndon is no longer of the outside world. He is No. 5129, a convict, inhabiting one of the typical, dirty, ramshackle jails maintained by the white bosses for the workers whom they destroy under the fiction of legalism.” Herndon had to spend 26 months in prison before being released on bail while his case was being appealed.
In June 1934, the Georgia Supreme Court affirmed Herndon’s sentence. He appealed to the U.S. Supreme Court, which ruled 6-3 against him in Herndon v. Georgia (1935). The six-member majority refused to consider the merits of his case, reasoning that he had failed to timely assert a federal constitutional claim.
Herndon’s lawyers then filed a petition for writ of habeas corpus, which tests whether a person’s imprisonment is legally justified. Anna Damon, acting secretary with the International Labor Defense, told The Chicago Defender: “This decision of the U.S. Supreme Court throws up a smoke screen of legal technicalities to protect reaction and terror in the South.”
In December 1935, Superior Court Judge Hugh M. Dorsey determined that the Georgia anti-insurrection law was constitutionally flawed because it was “too vague and indefinite.” State officials appealed to the Georgia Supreme Court.
Georgia’s solicitor general, John A. Boykin, argued to the state high court in January 1936 that “the doctrine of violence is in the mind of every Communist.” In June 1936, the Georgia Supreme Court reversed Judge Dorsey and upheld the Georgia law. In October 1936, Herndon, who had gone to New York, reported back to prison, surrendering to Sheriff James I. Lowry. Before leaving for Georgia, Herndon told a New York rally of thousands: “I am not guilty of any crime but go to the chain gang because I challenged the right of the State of Georgia to prevent white and Negro workers from organizing.”
The case eventually went back up to the U.S. Supreme Court, which heard oral arguments in February 1937. Whitney North Seymour, a talented lawyer, argued on Herndon’s behalf. He contended that Herndon had been “engaged in lawful political activity” and posed “no danger to the State.”
In his autobiography, which was published before the Supreme Court’s decision in 1937, Herndon discussed what the high court might do in his case. “It can either be one of two things — freedom or the chain gang,” he wrote.
On April 26, 1937, the Supreme Court reached the merits of Herndon’s arguments in Herndon v. Lowry and gave Herndon freedom rather than the chain gang. The ruling was 5-4. Seymour had argued that the Georgia anti-insurrection law violated the First Amendment because it punished expressive actions that simply did not amount to anything close to actual insurrection.
Writing for the majority, Justice Owen Roberts reasoned that Herndon’s “membership in the Communist Party and his solicitation of a few members wholly fails to establish an attempt to incite others to insurrection.”
Roberts said the Georgia law “amounts merely to a dragnet which may enmesh anyone who agitates for a change of government if a jury can be persuaded that he ought to have foreseen his words would have some effect in the future conduct of others.”
Four justices dissented and would have rejected Herndon’s petition for freedom. Writing for the dissent, Justice Willis Van DeVanter seemed focused on Herndon’s race and party membership. “It should not be overlooked that Herndon was a negro member and organizer in the Communist Party and was engaged actively in inducing others, chiefly southern negroes, to become members of the party and participate in effecting its purposes and program.”
Herndon earned his freedom and returned to Communist Party activity. In the bookThe Angelo Herndon Case and Southern Justice (1976), Charles H. Martin wrote that Herndon remained a committed Communist in the 1940s but later “his faith wavered.”
“Although Herndon continued to follow civil rights events, he withdrew from active public participation,” Martin writes. “In the middle or late forties he left New York and moved to a Midwestern city. There he worked as a salesman and lived quietly, refusing to discuss his earlier life with anyone but trusted friends.”
Out of public view, Herndon died in 1997 in Arkansas.
Angelo Herndon fought against oppression and challenged an unconstitutional law all the way to the U.S. Supreme Court twice. He believed in fighting for what he believed. As he wrote in his autobiography: “Death itself is not the greatest tragedy that can possibly happen to a man, rather, the greatest tragedy is to live placidly and safely and to keep silent in the face of injustice and oppression.”