William Epton, 70, Is Dead; Tested Free Speech Limits
February 3, 2002
By DOUGLAS MARTIN
William Epton, a Maoist agitator who made a fiery
street-corner speech during the Harlem riots of the summer
of 1964 and as a result became the first person convicted
of criminal anarchy since the Red Scare of 1919, died in a
Manhattan hospital on Jan. 23. He was 70 and lived in
Eleanor Jackson Piel, his lawyer in his marathon legal
battles, said the cause was stomach cancer.
Mr. Epton's case drew wide attention as a test of the
limits of free speech at a time when inner cities were
erupting in violence. Was there a constitutional right to
say, "Burn, baby, burn"? The answer, affirmed by New York's
highest court, the Court of Appeals, in 1967, was no.
But just two years later, the answer might have been yes.
Though in 1968 the United States Supreme Court refused to
hear Mr. Epton's case because it was a state matter, the
next year it used Justice Oliver Wendell Holmes's famous
phrase from the previous time the New York anarchy law had
made it to the Supreme Court.
In that case, Benjamin Gitlow was convicted for publishing
a Communist manifesto; the Supreme Court upheld the verdict
in 1919. But Holmes's dissent, saying that to be considered
criminal, speech must present "a clear and present danger,"
became the implicit law of the land. Holmes's language was
even more explicit in the 1969 case, Brandenburg v. Ohio.
The court held that the law was not violated unless someone
advocated "imminent lawless action which is likely to
Leon Friedman, a professor of constitutional law at Hofstra
Law School who uses Mr. Epton's case in his courses, said:
"They changed the rules. Had the new rule been in effect,
he probably would have won."
The original New York State law on criminal anarchy was
passed in 1902 in response to an attempt by the anarchist
Johann Most to justify President William McKinley's
Mr. Epton, an electrician at the time of the 1964 riots,
was chairman of the Harlem branch of the Progressive Labor
Mr. Epton's arrest followed speeches that he made during
riots set off when a police officer, Lt. Thomas Gilligan,
shot and killed a 15- year-old black youth, James Powell,
on July 16, 1964. The officer was later exonerated. But the
event led to a bloody race riot that later spread to the
Bedford-Stuyvesant section of Brooklyn.
A grand jury indicted Mr. Epton on charges that his
speeches kept the riot going. In one, which was secretly
recorded by an undercover officer assigned to monitor the
group, he said, "We're going to have to kill a lot of cops,
a lot of the judges, and we'll have to go against their
Sketchy evidence was also presented suggesting that Mr.
Epton had directed riot gangs and given instructions for
fire bombings. But although the Court of Appeals ruled that
his speech was not protected by the First Amendment, it
said the evidence offered to show that he had helped cause
the riot was unconvincing. "There is no evidence here that
the defendant or his alleged co-conspirators had any hand
in causing the riots that began on the evening of July 18,
1964," the court said. The appeals court did criticize him
for preaching violence after the riot, which lasted one day
in Harlem, but his lawyers contended that such speech had
no role in inciting violence.
William Leo Epton Jr. was born in Harlem on Jan. 17, 1932.
Even as a high school student, he demonstrated for civil
rights and helped organize unions. He was drafted into the
Army and served in the Korean War.
Over the years, he was a member of many leftist
organizations, many of them ephemeral. He was a founder of
the A. Philip Randolph Labor Council, a national
organization opposing racial discrimination in labor
A tall, slender man, he worked as a printer and as an
information officer for the Board of Education after
serving a year at the city jail on Rikers Island. He had
been sentenced to one year for each count on which he was
convicted, and served them concurrently.
He is survived by his wife, Beryl; a son, William, of
Manhattan; a daughter, Carol, of Augusta, Ga.; and three
The state anarchy law under which he was convicted made it
to the Supreme Court several additional times, but the
justices again declined to hear the cases. The law was then
rewritten to include only rebellion against state
government, making it even more difficult to get a federal
ruling on such cases, said Ms. Piel, who went on to
represent Black Panthers in a similar case.
Mr. Friedman suggested that Mr. Epton was convicted mainly
because of his words.
"The phrase about killing judges, I think, was a big
mistake," he said.
Copyright 2002 The New York Times Company
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