De Jonge v. Oregon: 1930s Case Revisited in Famous Cases program

By Doug Pahl

June 8, 2017 marked the return of the Famous Cases program.  Before a gathering in the 16th-floor courtroom at the Hatfield Courthouse, Marc Brown, chief deputy defender with the Oregon Office of Public Defense Services, brought to life Dirk De Jonge and 1930s Portland.  De Jonge was arrested, tried, and convicted for participating in a meeting sponsored by the Communist Party to discuss significant labor issues then unfolding in Portland.  Brown described the context of the times and De Jonge’s role in them, including what ultimately became the Famous Case of De Jonge v. Oregon, 299 U.S. 353 (1937).

In the summer of 1934, the nation was in the grips of the Great Depression, and a massive strike had shut down every port on the West Coast, including the Port of Portland.  The strike began May 9, 1934 and stopped all maritime commerce for 82 days.  By July 11, 1934, tempers finally boiled over in Portland.  The day before, a group of Portland businessmen announced that Terminal 4, near the St. Johns neighborhood, would be open for business by any means necessary.  The next day, a heavily armed “special police” squad appointed by Portland Mayor Joseph Carson, Jr. climbed aboard a flatbed railcar at the head of a Union Pacific train. The plan was to ram the strikers’ picket line but the “special police” fired their weapons, wounding four strikers.  That day became known as “Bloody Wednesday” and started the chain of events that would lead to the arrest of Dirk De Jonge.

De Jonge was a World War I veteran, a longshoreman, and had been a candidate for mayor of Portland.  Most important for this case, De Jonge was also a member of the Communist Party, which called a meeting to discuss Bloody Wednesday shootings and the ongoing strike. The meeting at 68 S.W. Alder Street in Portland was free and open to the public.  Of the more than 150 in attendance, just 10 to 15 percent were members of the Communist Party.  De Jonge addressed jail conditions, the actions of the police, and he advocated for the Communist Party.  As De Jonge explained: “I went to that meeting because I was instructed by the section committee of the Communist Party through its section organizer, comrade Louis Olson, to speak at that meeting in the name of the Communist party.”

The Portland Police’s “red squad” stormed the meeting and arrested eight men, including De Jonge.  De Jonge was charged with violating Oregon’s “criminal syndicalism” law for participating in a meeting of the Communist Party to “teach and advocate the doctrine of criminal syndicalism and sabotage, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon.”

Oregon law defined criminal syndicalism as “the doctrine which advocates crime, physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” Oregon Code, title XVI, ch 3, § 110 (1930).  The principles of the Communist Party were generally synonymous with criminal syndicalism, which was a felony punishable by one to ten years in prison, a fine of up to $1,000, or both.  Id, §112.

After a three-week trial, De Jonge’s fate was placed in the hands of the jury.  After the jury twice reported a deadlock, it was evenly divided, the judge re-read the jury instructions.  After several more hours of deliberation, the jury returned a 10-2 verdict of guilty.  Although the jury recommended leniency, Judge Jacob Kanzler sentenced De Jonge to seven years.

On appeal to the Oregon Supreme Court, De Jonge argued the conviction violated the 14th Amendment to the U.S. Constitution and Article I, Sections 8 and 26 of the Oregon Constitution.  De Jonge did not raise a First Amendment claim.  Relying on a prior decision, the court affirmed 5-2, finding no constitutional violation.  State v. De Jonge, 152 Or 315 (1935).  The two dissenters, although troubled by the severity of sentence, expressed no constitutional misgivings.

Undaunted, De Jonge took his appeal to the U.S. Supreme Court.  His legal team then included young Portland attorney Gus Solomon, who crafted the successful petition for certiorari and brief. The fact that De Jonge failed to raise a First Amendment claim below did not stop the High Court from concluding that Oregon’s criminal syndicalism statute, as applied to De Jonge’s conduct, violated De Jonge’s rights to free speech and freedom of assembly.  De Jonge v. Oregon, 299 US 353 (1937).

Speaking for a unanimous Court, Chief Justice Charles Evans Hughes explained:  “The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”

Hughes went on to incorporate the Freedom of Assembly Clause to apply to the states via the 14th Amendment:  “The First Amendment of the Federal Constitution expressly guarantees [the] right [to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances] against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions-principles which the Fourteenth Amendment embodies in the general terms of its due process clause.”

The Court concluded: “We hold that the Oregon statute, as applied to the particular charge as defined by the state court, is repugnant to the due process clause of the Fourteenth Amendment. The judgment of conviction is reversed….”

De Jonge went free, simply telling curious reporters he was “looking for a job.”  Oregon repealed the criminal syndicalism law in 1940.

De Jonge took a stand to protect the rights of all citizens to meet peacefully to address public issues.  His Famous Case, brought to life by Marc Brown, shows that an ordinary citizen can bring about positive change through peaceful assembly and legal redress.