The New York Times

William Epton, 70, Is Dead; Tested Free Speech Limits

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 Harlem.

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 occur."

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 assassination.

Mr. Epton, an electrician at the time of the 1964 riots, was chairman of the Harlem branch of the Progressive Labor Movement.

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 army."

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 unions.

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 grandchildren.

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.