nd further, that it failed to set up an
ascertainable standard of guilt.[115] A few weeks earlier the Court had
vacated a judgment of the Supreme Court of Utah affirming convictions on
a charge of conspiring to "commit acts injurious to public morals" by
counseling, advising and practicing plural marriage.[116] Four members
of the Court thought that the cause should be remanded in order to give
the State Supreme Court opportunity to construe that statute and a fifth
agreed with this result without opinion. Justice Rutledge, speaking for
himself and Justices Douglas and Murphy, dissented on the ground that
the Utah Court had already construed the statute to authorize punishment
for exercising the right of free speech. He said: "The Utah statute was
construed to proscribe any agreement to advocate the practice of
polygamy. Thus the line was drawn between discussion and advocacy. The
Constitution requires that the statute be limited more narrowly. At the
very least the line must be drawn between advocacy and incitement, and
even the state's power to punish incitement may vary with the nature of
the speech, whether persuasive or coercive, the nature of the wrong
induced, whether violent or merely offensive to the mores, and the
degree of probability that the substantive evil actually will
result."[117]

PICKETING AND CLEAR AND PRESENT DANGER

Closely allied to the problem of dangerous utterances is the resort to
picketing as a means of communication and persuasion in labor disputes.
In such cases, the evils feared by the legislature usually arise, not
out of the substance of the communications, but from the manner in which
they are made. Applying the test of clear and present danger in
Thornhill _v._ Alabama[118] and Carlson v. California,[119] the Court
invalidated laws against peaceful picketing, including the carrying of
signs and banners. It held that: "the dissemination of information
concerning the facts of a labor dispute must be regarded as within that
area of free discussion that is guaranteed by the Constitution" and may
be abridged only where "the clear danger of substantive evils arises
under circumstances affording no opportunity to test the merits of ideas
by competition for acceptance in the market of public opinion."[120]
Shortly thereafter a divided Court ruled that peaceful picketing may be
enjoined where the labor dispute has been attended by violence on a
serious scale.[121] Speaking for the majority