*1 STATES. v. UNITED SCALES 10, 1960.— Reargued October April Argued 1.No. 1959. 5, 1961. June Decided *2 Taylor reargued the petitioner. cause for With Telford him on the briefs was McNeill Smith.
John F. reargued Davis the cause for the United States. him With on the Rankin, briefs were Solicitor General Attorney Assistant Yeagley, General Kevin Maroney T. R. Philip Monahan. Osmond K. Fraenkel a filed brief for the American Civil curiae, Liberties as amicus Union, urging reversal. the Court. opinion Harlan delivered Mr. Justice a review 917) to S. (358 U. case writ issued Our affirm- 21) 2dF. (260 Appeals of the Court judgment member- the so-called under conviction petitioner’s ing 2385. §C.S. 18 U. Act. Smith ship clause acquisition felony the makes things, among other Act, organization membership knowing holding of of the Government the overthrow advocates The indictment force or violence.1 States the United filing of its January 1946 to date from charged Party of United 18,1954) (November petitioner organization, an was such States italics) reads: place in membership we clause (whose Section *3 advises, or abets, advocates, willfully knowingly or “Whoever overthrowing of desirability, propriety necessity, or duty, teaches the government or States government of the United destroying the or govern- thereof, or the Possession Territory, District or any State, of by violence, or therein, by or force any political subdivision ment of or government; any any of such of officer the assassination any of or destruction the overthrow “Whoever, intent cause with circulates, sells, dis- issues, edits, publishes, prints, government, such matter advocat- any printed or displays written tributes, publicly or desirability, propriety or necessity, duty, teaching advising, ing, or States in the United any government destroying overthrowing or so; or attempts do violence, by or force or society, any organize attempts to helps or organizes or “Whoever encourage the advocate, or teach, who assembly persons group, or violence; by or any government force such or destruction overthrow society, any such with, of, affiliates is a or or member or becomes knowing purposes assembly persons, group, or thereof— than imprisoned not more $20,000 or more than fined not be “Shall by the employment ineligible for both, shall be twenty years, or years thereof, for the five agency any department or or United States following his conviction. next any named offense conspire to commit persons or more “If two imprisoned $20,000 or more than fined not section, be each shall this ineligible for both, twenty years, and shall or more than agency any department or States the United employment following his years next conviction.” thereof, for the five throughout period was a member thereof, with knowledge of the Party’s illegal purpose and a specific accomplish intent overthrow “as speedily as circum- permit.” stances would
The validity of this conviction is challenged on statu- tory, constitutional, and evidentiary grounds, and further on basis certain alleged procedural trial and errors. We decide the issues upon raised the fullest consideration, the case having had an unusually long history in this Court.2 For given reasons opinion we affirm the Court of Appeals.
I.
Statutory
Challenge.
Petitioner contends that
the indictment
fails to state
an
against
offense
the United States. The claim is that
(f)
§ 4
of the Internal Security Act of 1950, 64
987,
Stat.
2Petitioner was first
jury
convicted before a
in the Middle District
of North
Carolina
1955. The
conviction was upheld
the Court
of Appeals, 227
581,
F. 2d
granted
and we
certiorari at the 1955 Term.
In the context of 4§ as a whole, the first sentence of subsection (f) does not appear provision to be a repeal- ing in whole or in part any other provision of the Internal Security Act. Subsection (a) of 4§ makes it a crime
“for person knowingly to combine, conspire, or agree with any person other to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictator- ship . . . the direction and control of which is to be vested in, or exercised by or under the domination or control of, any foreign government, foreign organiza- tion or foreign individual . . . .” Subsection (c) makes it a crime for any officer or member aof “Communist organization” to obtain classified infor- mation. We should hesitate long before holding that (f) subsection operates to repeal pro tanto either one of these provisions which are found in the same section of (f) subsection is a part; and petitioner indeed the does not argue for any such quixotic result. The natural tendency of the first sentence of subsection (f) as to the criminal provisions specifically mentioned is to provide clarification of the meaning of those provisions, that is, that an offense is not made out on proof of mere member- *6 particu- As to these organization. in a Communist ship such as immunity, provisions criminal mentioned larly only, second sentence in the granted is, specifically is there be shall not registration the fact said that it is where that when argues Yet petitioner in evidence. admitted tag sentence, the first of the phrase last to the we come part operative statute,” criminal any . other “or . . constitute . . shall “membership . [not] sentence, of the and purport different altogether an has violation,” se a per to con- guide and as a clarification operated effect. What peti- is, provisions identified to the specifically struction referred as to the statutes partial repealer a argues, tioner sentence. of the at the end clause in the omnibus language that the foregoing from the apparent seems It not be and context should import in its natural (f) of 4§ organizations Communist members of to immunize taken rather but Act, the Smith membership clause of from charged with the construction courts mandate to the as a criminal any other “or . . . (c) (a) of subsections provisions named criminal two neither those statute” that “member- so as to make construed shall be any nor other se a violation.” “per organization in a ship” Communist if the 4 even (f), of § first sentence as read the Indeed, we taken Act could the Smith clause of membership membership, would Party punishing naked in accord- to construe it (f) under duty § then be our it down. strike certainly not to mandate, ance with its face on membership clause think that the Although we violation, a membership making mere beyond goes Party pur- illegal a both of showing it requires in that we purposes, such knowledge of a member’s and of poses (f)4 as a clear warrant sentence of § the first regard mem- only knowing requiring not clause as construing the membership, purposive purposive but active bership, (Infra, criminal ends. organization’s as to the does not subsection terms, then, (f) 219-224.) By its pp. a pro repeal membership effect tanto at clause; most it modifies it. argues
Petitioner that if the 4 (f) provision § does not prosecution bar this under the membership clause, then phrase “or of other criminal statute” becomes for there is no other federal meaningless, criminal statute membership makes this sort of But crime. argument assumes the answer. The first sentence was intended to clarify, (a) not repeal, § of the Internal Security By Act. a parity of its reasoning, “any effect on other criminal statute” is also clarification, repeal.
Petitioner’s
stop,
contentions do not
however, with the
words of 4 (f)
§
itself.
supposed partial
repeal of the
membership
clause
it is
provision,
is a
claimed,
consequence of the latter’s
in
purpose
the whole scheme
of the Internal Security Act
1950,
of
as
illuminated
its
legislative history. The argument runs as follows: The
core of the Internal Security Act is its registration provi-
sions (§§ 7 and 8), requiring disclosure of
membership
the Communist Party
a
following
valid final determina-
tion of the Subversive Activities Control Board as to the
status of
Party.
ante,
See No.
p. 1. The
regis-
requirement
tration
would be rendered nugatory by a plea
of self-incrimination and
only
could
be saved by a valid
grant of immunity from prosecution by
reason of
such
disclosure.
However,
immunity provided by the sec-
ond sentence of 4 (f)
§
insufficient,
that it
only
forbids
the use of the “fact of ... registration” as
in any
evidence
future prosecution, and not also its employment as a
“lead” to other evidence. See
Hitchcock,
Counselman v.
142 S. 547;
U.
Blau
States,
v. United
Although this it attack, constitutional against it save as to lation so perverting of point to the carry not will must not us before Certainly the section aof statute. purpose of The fact argues. petitioner be construed cannot lead investigatory significant may provide registration clause membership under only prosecutions under prosecutions equally probably but Act, Smith §4(c). alone Act, Security let the Internal (a)4 § (f)4§ argument petitioner’s accepted we Thus, if membership repealer partial as a read must be extraordinary conclusion led to the we would be clause, (f)4§ under immunize intended Congress also it other subsections in these prohibited what the thrust Furthermore, time. at the same passed member- to the limited cannot be argument petitioner’s any prosecution equally applicable for it is clause, ship where Commu- provisions of criminal any of a host under investigatory an might provide membership nist attribute cannot We of the crime.3 as to the elements lead basis Congress on the purpose to sweeping any such by petitioner. offered inference attenuated statute indication every are with as we Presented *8 a prosecution to bar purpose had no Congress itself the Inter- history of the legislative turn to this, as we such is conclusion if a different 1950 to see of Security Act nal indicated. provisions the fusion of product (f)4 is
Section and the House by the in conceived measures contained subject of is the problem to deal with Senate 3 the Smith remaining provisions of (the g., S. C. 2385 E. 18 U. § Labor-Management (h), repealed Act); S. C. 29 U. §159 (d) (non- 519, 201 1959, 73 Stat. Reporting Act of § and Disclosure any of the officers); or by union to be filed affidavits Communist 1950, for Security instance Act Internal created offenses 4, 5 or 6. under §§
212 present Internal Security Act. Primarily, however, 4 is
§ the result of the In Senate’s efforts. Senator Mundt in reintroduced bill, the Senate a the Mundt- Nixon bill, which had year committee the died before. S. 81st Cong., 1st bill, Sess. The which was referred to the Committee on the Judiciary, contained registration provisions similar present to those statute, and a 4 (a), § provision criminal identical to that present (a). In § response enquiry, to an Committee a letter received from an lawyer, eminent the late John W. Davis of York, New to the effect that although the primary purpose of appears the bill to be “ventilation rather than prohibition,” there was a ques- tion whether “mere in a membership political Communist organization, which . . . required register [might] constitute an act such section 4 (a) proscribes? If so,” the letter continued, “is there not inherent contradic- tion between these sections, might person not a called register on to as a member claim that he would involun- tarily incriminate himself by so doing?” (Emphasis supplied.) S. Rep. No. 1358, Cong., 81st 1st Sess., pp. 43-44. Thus, the Davis letter seemed to address itself only to self-incrimination under the proscriptions (a), and only §4 to the extent that the membership dis- by registration closed would without more constitute a violation of 4 (a). §
In response to this narrow objection the Committee the predecessor drafted present (f). 4§ That section, also provided § numbered (f), that:
“Neither the holding of office nor membership in any organization by any person shall consti- tute a violation of (a) subsection . .. of this section. The fact of registration person . . . shall not be received against evidence person such any prosecution for any alleged violation of sub- *9 (a) section . . . .” S. 2311, as amended. Senate to the bill out the reporting Committee
The might objections that whatever abundantly clear made clarifica- the by view, be overcome in its could, made be “mere to wit: (f), in § contained (a) of 4§ tion is not register to required organization in an membership prohibi- the within person bring a such as act an overt to make inserted was amendment This 4. section of tions . . . was registration Congress of the intent clear bill.” 4 of the section violation of a evidence not 2. To p. supra, Rep. No. S. supplied.) (Emphasis then, section, of the version original of the drafters the sentence the second immunity of limited perforce the meaning of the clarification the with (f) together 4§ with to deal adequate sentence the first (a)4 of § raised (a), §4 under problem self-incrimination Act Smith mention no There is letter. Davis problem yet, but statute criminal any other or relation is no different immunity necessary scope statutes. other be to such it would than (a)4§to in the Senate section of the history subsequent The grant intent nowas there conclusion reinforces reasoning of meet the as would immunity such a broad bill was Mundt-Nixon Hitchcock. v. Counselman measure, omnibus of an body incorporated When Sess. 2d Cong., 4037, 81st bill. S. McCarran men- no further to the Senate out reported bill was Judiciary of the report majority in the made tion was impair or the bill restrict “Nowhere does stated: report also 4 The the fifth under against self-incrimination privilege the constitutional infringes registration itself As to whether ... amendment. respect to indi self-incrimination, . . . [w]ith privilege of upon the records, keep register, may compelled person members, vidual activity which the concerning any etc., statements, reports make therefrom protected he is may regulate, and properly State however, in the academic, purely This becomes .... privilege (f)4 into section written self-incrimination bar to light specific Id., pp. 20-21. at
214 Committee of the sections under consideration. How- ever, Senator Kilgore’s minority report squarely pre- sented questions two as to the insufficiency of immunity provisions (f): of 4 (1) § that the immunity was inadequate to meet the Counselman rule, (2) and in any case there was immunity no any sort granted in respect of the Smith Act. S. Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12-13. grounds These were urged against the bill also in debate its opponents. Senator Humphrey read into the Record a “brief” prepared by the Justice Department which in effect restated the objections of the minority report. 96 Cong. Rec. at 14479. Senator Lehman stated the same objections, and also sug- gested that the membership clause of the Smith Act as well as 4 (a) § made Communist membership per se a crime. This latter contention was vigorously denied the proponents of the measure.5 Thus, passed the-Senate Lehman, Senator arguing that the required bill self-incrimination, stated: already “We have on the statute books more than 20 laws control penalize subversive activities. . . . We Act, also have the Smith recently upheld by the Appeals, Court of which makes membership in the Party Communist prima .facie evidence of criminal intent. . . . n . [Registration would constitute self-incrimination, if not “ n under the terms law, of this then under the terms of the Smith Act.” Cong. Rec. 14190. As the debate continued, Long Senator said: “I was under impression hearing from the Senator from New York yesterday, that he said that previous under a statute it was belong unlawful to organization to an that advocated the overthrow of the government United States by force . . . that there was a previous act . . . which made it unlawful for one to be a member of organization an [such] .... Ferguson. “Senator it Is true Judge Medina, charge in his jury
to the in the trial of the 11 Communists, told them that mere membership in the was not sufficient to warrant jury in convicting them under the Smith Act? petitioner [The present in the case correctly notes that this reference was to the had though §4(f), even version predecessor its objections constitutional to it clearly presented had objections peti- as the same are the provision reading and literal natural makes to now tioner kind immunity no There statute. present immu- limited only prosecutions, Act Smith against provisions comparable under the prosecutions nity against *11 (a). 4§of likewise measure House original history of measure, That consideration. under the issue to
relevant advocate, not to conspiracy for involving an indictment Dennis ease the Smith membership Act.] clause original bill]. of the proponents of the was one Mundt “Mr. [who Precisely. to law. apply not Ferguson. So that could “Mr. t would still . conceivably apply. . . [I] not Mundt. It could “Mr. Cong. 96 . . .” Act. interpretation [Smith]
be an incorrect 14235. Rec. measure Senate omnibus the new McCarran, whose name Senator Act: the Smith with bore, in connection stated on declare New York Senator from arresting to hear “It was membership the Com- . . . makes Act he Smith Tuesday that —1 [t] intent.’ of criminal Party prima evidence facie munist making Act the Smith about course, the statement “. . . [0]f of criminal Party prima facie evidence membership in the Communist in fact. foundation simply has no intent he made the one like make a statement course, in order . Of “. . charge scholarly Judge Medina’s read not must have a man mem- that the Communist pointed out specifically jury, which he part ... was not the 11 defendants bership or affiliation charged offense .... ‘neither (f) follows: provides as 4 President, subsection “Mr. a violation constitute membership . . . shall
holding of office nor (a) ... .’ subsection may find time read [the New York from hope the Senator I "... tell the Senate may fit to hope he see I then whole]-,and as a section obviously be such, Communists, would as he still thinks whether (a).” 96 under section imprisonment subject to indictable (Emphasis supplied.) 14442-14443. Cong. Rec. bill, Wood which also provided for registration, con- provision tained no similar to (a), § but did have a pro- vision present similar to the 4 (c), forbidding § members of Communist organizations from obtaining classified information. H. R. 9490, 81st 2d Cong., Sess. The bill included an immunity proyision in the same subsection the predecessor to present 4 (c), § which declared that:
“. . . the fact of registration of any person . . . shall received against evidence such person in any prosecution for any alleged violation ... this section.”
Once again, the Wood bill demonstrates the same narrow view of the self-incrimination problem as was evidenced by the Senate In bill. debate Congressmen Celler and Marcantonio, opposing bill, pointed to the twofold inadequacy of the immunity provision: its failure to meet Counselman, and its not reaching other criminal statutes. 96 Cong. Rec. 13739-13740. The House responded to objections these by adding the words “or alleged *12 violation of any other . . . criminal statute” at the end of the above-quoted provision. 96 Cong. Rec. 13761. is, It therefore, even clearer than in the case of the Senate’s action that there was no attempt to grant complete immunity or to repeal any other statute at least as to prosecution of Communist Party members, since the House’s immunity provision in terms only dealt with the admission into evidence of the fact of registration, provision no having comparable to the first present sentence of §4(f). That there was no provision such may perhaps be explained the by fact that there was equivalent no to 4§ (a) need of clarification.
In conference, the substance of the Senate bill was accepted by the conferees, including the criminal provi- sion of the present 4 (a). § The Senate version of (f)4§ was amended present to its form by the addition of the
217 to both language statute” criminal other “or House subsection, sentences and second first the Thus we first to the sentence. se” “per addition although neither to hold by petitioner asked are any purpose to bills evidenced preconference its House mem- Party insofar as the Smith Act repeal applicable other possibly let alone concerned, bership was member as a registration statutes .under 3, supra), note (see lead investigatory an produce might though intended, was these two bills amalgamation to either House by the conferees any notification without Nor result. does to have this reports, conference their petitioner’s “per se” advance the words addition simply seem addition would its On face argument. of the sen- clarifying purpose explicit more make 4 or the Smith (a) that § of worries In its context tence. criminal, se membership per Act makes Communist this of the bills proponents of statements purely provisions, to both fear as an unfounded Furthermore, we apparent. se is purpose per clarifying conferees, to the purpose this to attribute asked are measure they proponents nor the neither although said a word about from conference finally emerged as it original purposes departure from the important an such Houses.6 of the two (f) repeals, any suggestion that Perhaps the closest we come § by Representative Multer
pro tanto, the Smith statement Act during on the measure, the debate York, opponent of the an of New very bill is the provision bad the bill: “Another version of final (f)] . . sentence . . this House—first [of § new—to you only law predict if this bill becomes “I venture you law, but parts of the will important Smith one of the most vitiate *13 recently argument the 11 Communists con- give defense to a new against the in New York of crimes United in the Federal court victed 15289, Cong. or law,” 96 Rec. States, proscribed the Smith as Cong. by Kilgore, 96 against Rec. argument the bill Senator similar 15192.
218
Finally, noting it is worth that after the conference measure returned to the floor of the Senate it was attacked by on precisely grounds Senator Kefauver the same urged against had been prior both Houses to confer- ence: that the immunity by present 4 (f) conferred § too narrowly drawn to save the registration provi- against sions an attack under Counselman. Cong. Rec. 15198-15199. This same attack was renewed after President’s veto, was overridden Congress.7 96 Cong. Rec. 15553-15554. legislative Petitioner makes history reference to the of an amend
ment to the Communist 1954, 3706, Control Act of Cong., S. 83d 2d Sess., passed introduced and with modifications in a hurried and con fused debate in both amendment, proposed Houses. The by Senator Humphrey, provided knowingly that it would be wilfully criminal to become or remain a member of the Party, Communist other organization purpose government whose to overthrow the force and violence. The opposed by proponents amendment was of the Security 1950, among Internal Act others, grounds on the that it impair would (f) Act, effectiveness of 4 of the possibly § rendering registration provisions of that Act But unconstitutional. it seems clear that this result was conceived flow from the fact that the amendment Party by mentioned the name, thus making registration tantamount to an admission of the crime itself. Representative As Halleck, majority opposed then leader who amendment, put it:
"... Security have the Internal [W]e Act of which was worked out after the most careful consideration . . . and the Smith Act, under which we sixty- have had more than 100 indictments and convictions, some all of Communist leaders .... Those acts we they have on the books . . . have established themselves. Attorney-General... "... peaking Security [T]he of the Internal [s] Act . validity . . said: ‘Essential to the plan, however, of this careful provision is the (f) of section 4 apparent the act ... . It is legislation making enactment of membership in the Communist Party per se a crime would be in direct provisions conflict with these Security membership Internal If Act. alone criminal, is made require him to membership require declare his give is to him to
219 from therefore, of 4 far history (f), legislative § analysis of the flowing from conclusion weakening the analysis every fortifies that at itself, terms of the statute protect desire to Congress’ To conclude that point. of Act registration provisions Security the the Internal over prevail pleas of self-incrimination should against of expense at the result failure to its advertent assure Act, the as membership clause of Smith out the wiping disregard by this require a Communists, would applied to congressional purpose. of the evident Court Whatever upon failure the Internal of that may consequences be the the solely here with ques- are Act, we Security concerned repeal a (f)4 intended by § partial whether Congress tion conclude of the Smith clause We membership of the Act. barred prosecution this not and hold that is not that it did Act 1950. by (f) Security § the Internal 4
II. Membership Challenge Constitutional to the its Face. Clause on to the attack goes both constitutional Petitioner’s At we deal point statute this and applied. its face on part one of the and aspect the first challenge with with act, self-incriminating By portion its evidence. nullifying the ,’ , , , operation jeopardized would be entire doing outlawing Com- the are “In we words, permits what other Act, maintaining Security Party, the the and Smith Internal munist by Com- Act, deal with realistically other acts which we all Cong. munist Reo. conspiracy.” po many is in Humphrey amendment is There doubt that clause, respects the membership But was assumed it similar Act, perhaps illogically many of the 1950 under proponents misapprehension should be law, amendment as to Act, integrity preserve the Smith defeated Act and membership Certainly by no one clause considered (f)4 application to repealed, its Communists barred § had been 195QAct, of the aspect. of its second The balance of the latter, which essentially concerns the sufficiency evidence, discussed opinion. next section of this bring It will the constitutional issues into clearer focus premises notice first the on which the case was sub- *15 mitted to jury. jury in was instructed that order to convict it must find three-year that within the limita- tions period8 (1) the Communist advocated the violent overthrow in Government, the sense of present “advocacy of accomplish action” to end soon as circumstances were propitious; (2) petitioner and was an member of the Party, merely “active” and not “a nominal, passive, purely inactive or technical” member, knowledge with Party’s illegal advocacy and a specific intent to bring about violent overthrow “as speedily as permit.” circumstances would
The constitutional attack upon the membership clause, as thus is construed, that the (1) statute offends the Fifth Amendment,9 that it impermissibly imputes guilt to an individual merely on the basis of his associations and sympathies, rather than because of per- some concrete sonal involvement criminal conduct; (2) the First Amendment,10 that it infringes political on free expres- sion and association. Subsidiarily, argued statute cannot be interpreted as including requirement a a specific intent to accomplish violent overthrow, or as re- quiring that membership in proscribed organization a must be “active” membership, the absence of both or either of which it is said the statute becomes a unconstitu- fortiori 18,1951, November 18,1954. to November See 18 U. S. C. 3282. § person “No shall deprived ... be life, liberty property, or process without due of law . . . .” 10“Congress shall make abridging no law . . . the freedom of speech, press; right of the or the people of the peaceably to assemble, petition and to grievances.” Government for a redress of adjec- if contended that even tional.11 It is further as a implied qualification may properly tive “active” would upon petitioner’s the term conviction “member,” because so construed unconstitutional, nonetheless be vague under the Fifth and impermissibly statute would be would in event Amendments,12 applied Sixth so in that the indictment infringe Amendment, the Sixth charged only “member,” that Scales not an “active” was Party. member, Statutory Construction. 1. reaching petitioner’s claims,
Before constitutional we membership per- should first ascertain clause whether missibly upon put bears the construction it below. We think it does. organizational
The trial court’s definition the kind of advocacy fully in proscribed that is accord with what *16 States, was held Yates v. United in 354 S. 298.13 And U. requires the statute itself a have defendant must knowledge organization’s illegal advocacy. of the only crime, below, elements of as two the defined about which is controversy “specific there are therefore membership. former, intent” and “active” As to the States, Dennis v. United in 494, Court held 341 S.U. 499-500, though “advocacy” “organiz- that even the ing” provisions Act, of the Smith unlike the “literature” supra), (note expressly section did not contain such a 1, specific element, intent such a requirement fairly was to of Dennis implied. think that the reasoning We 11While the Government undertakes to the defend statute the elements, of either absence or both of such its ultimate constitutional position presence rests on the of both. 12 prosecutions, enjoy right... “In all criminal accused shall to be informed of the nature and of the accusation . . . .” cause See note infra. left and are membership clause, to the"
applies equally draw to seeks petitioner the distinctions by unpersuaded organizing advocacy and the this clause between Act. the Smith provisions interpreting difficulty hardly greater findWe We members. only “active” to reach membership clause nomi- punish purpose a Congress attribute to decline by “knowl- accompanied though even membership, nal con- of the close merely because “intent,” not edge” and (cf. raise purpose would that such questions stitutional other for two but also Yates, 319), at supra, 228; infra, p. in- Congress inferred lightly to be It is not reasons: heavy members passive mere upon to visit tended as- can we Act.14 Nor by Smith imposed penalties quality to allow Congress’ purpose sume solely membership to be measured punishable subjectively relationship as of that varying standards more reasonable It is organizations. different viewed objective stand- contemplated an Congress believe that an even- thereby assuring itself, law by the ard fixed statute. application handed requiring provision on a similar passing This Court become members have of aliens deportation who rested on Con Party provision which the Communist —a hence did aliens, and over plenary power gress’ far more constitutionality the limits of closely on nearly so press interpreting difficulty no as this enactment —had than the mere meaning vol there more “membership” rolls. Galvan name on listing person’s of a untary Perfetto, 115; 355 U. Press, 522; S. Rowoldt S. v. v. U. *17 14 imprison $10,000 and fine of than allows a not The more statute imposed, makes one years to than be more ten not ment for the for United ineligible employment under the statute convicted following years agency thereof for any department or five States years. imprisonment six to for sentenced Petitioner was conviction. construc- A similar 135. Wixon, S. 326 U. Bridges v. see here.15 is called for tion this to objections constitutional particular
Petitioner’s not was indictment misconceived. are construction “active” anwas Scales charge that to failing defective in itself not was factor for that Party, of the member quality inherent crime, but an of the element a discrete not for matter it was As such membership element. the jury the to elucidating instructions indictment, but Nor meant. in the statute “member” term on what the vagueness score on the objection think that do we “active” between The distinction one. ais tenable in common understood membership well “nominal” States, 342 United Lines v. Boyce Motor (cf. parlance v. Petrillo, 1; Sproles U. S. v. 337; United States S.U. shades one at which point 374), and the Binford, S. 286 U. sufficiency to not something goes the other is into court’s of the trial adequacy but statute, in a particular of instructions by way jury to the guidance abstract Moreover, whatever See note case. infra. no presents case this matter, exist on the might doubts on behalf actions petitioner’s For problem. such active amounted to certainly Party most reasonably one could standards membership whatever hardly be considered he can therefore anticipate, and unadvisedly on score. have acted suggestion further in the find no substance We a construc- anticipate expected not petitioner could its elements within included statute tion of the that he and hence intent, specific activity and membership stands “activity” proscribed The element of “knowledge” that the former guilty ingredient apart from affairs, general participation may by a defendant’s be shown illegal organization’s linking him with requires whereas latter activities. *18 is, criminal. It
duly warned of what the statute made nar- clear that the courts’ construction was course, dower petitioner than rower, broader, not the one for argues defining the character of the forbidden conduct con- according petitioner’s and that to own therefore, his actions were the statute. The struction, forbidden petitioner right contention must then be that had a to rely statute’s, on the he held it, being as construed uncon- arguendo, stitutional. Assuming, petitioner’s con- struction was not no more can unreasonable, be said than that —in light of the courts’ traditional avoidance of constructions constitutionality of dubious and in light of their role construing purpose aof statute —there were ways two one could reasonably anticipate this stat- ute’s being construed, and that petitioner had clear warn- ing that his actions inwere violation of both constructions. There is no additional constitutional requirement petitioner should be rely upon entitled the statute’s being construed such a way possibly to render it unconstitutional. In sum, argument “right” of a a literal simply construction boils down to a claim that the view of the statute taken below did violence tó the congressional purpose. litigant Of course a always prejudiced when a court but errs, whether or not the lower courts erred their construction is an issue which can only be met on its merits, “right” reference to a to a particular interpretation.
We hold that the statute was correctly interpreted by the two lower courts, and now turn petitioner’s basic constitutional challenge.
2. Amendment. Fifth In our jurisprudence guilt is personal, when the imposition punishment aon status or on conduct can only justified by reference to the relationship of that activity criminal concededly to other conduct status or relationship overthrow), advocacy of violent (here *19 concept of satisfy the sufficiently substantial must be Due attack under to withstand in order personal guilt Membership, Fifth Amendment. Process Clause ad- illegal in engaged organization in more, an without recognized been heretofore has not said, now it is vocacy, This claim relationship.16 such to be by this Court the claim independently of it, shall examine stands, we Amendment. First under the made the reach beyond process puts that due Any thought relationships, associational individual all criminal law acts specific by the Commission accompanied unless the law concepts of familiar criminality, dispelled commonplace are both complicity. While conspiracy and natural they are not law, criminal landscape in of the concepts mani- legal they particular are features. Rather having the society, principle festing general the more powerless cannot be behavior, dangerous power punish that behavior.17 about bring who work against those 16 357; Burns v. California, 274 S. Whitney U. v. compare But sustaining under state convictions States, 274 S. United U. California Criminal membership provisions of the organizing and Syndicalism Act. 17 accomplice person is “A an thus: Complicity has been defined person of crime if: in commission a of another facilitating the commission “(a) promoting or purpose of with the crime, he other encouraged provoked or such requested, “(1) commanded, it; person or to commit person such other attempted to aid “(2) aided, agreed to aid or committing planning it . . . in committing person knowledge acting that such other “(b) with knowingly, crime, substan- committing he purpose of or had the Institute, American . . . .” Law tially commission its facilitated (1953). The (3), draft No. tentative Model Penal Code §2.04 juris- generally statutory found provisions formulation restates The fact that Congress has not resorted to either of these familiar concepts means only that the enquiry here must analysis direct itself to an of the relationship between the fact of membership and the underlying substantive illegal conduct, order to determine whether that rela- tionship is indeed permit too tenuous to its use as the liability. basis of criminal In this organi- instance it is an zation which engages criminal activity,18 we can dictions See, g., United (a); States. e. 18 U. S. C. Ariz. § Ann., 1939, §43-116; Code Stat., 1952, Code, Vernon’s Texas Pen. 70; Art. Canada, cf. Criminal Tremeear’s, 1944, Code of It §69. should be noted membership clause as here construed is (b) more limited than subsection provision, of this since it is not enough knowingly that one has facilitated the substantive criminal *20 conduct, but there present specific must also be purpose the of facilitating it. is, course, There of overlap considerable between the of law com- plicity conspiracy, genuine and the law of problems and arise as to conspirator is, by whether a conspiracy, reason of his to be consid- accomplice guilty ered an and therefore also of the substantive offense. ALI, See Code, Model Penal (1953), pp. tentative draft No. 1 at 20-33; Developments in the Conspiracy, Law—Criminal 72 Harv. L. (1959). Rev. solely 993-1000 But we are concerned here with pointing up accepted imputation the guilt, limits of explor- of not with ing problems the provisions by created the various which such imputation is effected. problems attributing criminal behavior to an abstract entity specified rather than to individuals, though perhaps difficult theoretically, practical as a problems matter resolve themselves into proof. of successfully Whether it has been particular shown that a group engages advocacy depend forbidden must on the nature of organization, the advocacy the occasions on place, which such took frequency the occasions, of such position and the group within the persons engaging of the advocacy. (See infra.) in the pp. 253-254, way, great Understood in this charge there is no difference between a being group engages a member in a in criminal conduct and being large a member of conspiracy, many a participants of whose are unknown or not before the might court. Whatever difficulties be thought ascribing to inhere in a course of criminal conduct to an entity certainly cured, abstract are any particular so far as defendant knowingly and actively why one who no reason perceive con- intending to organization, that ranks of the works activi- illegal specifically of those success to the tribute than prosecution immune from more should ties, task of the assigned has organization to whom he should act. criminal Nor substantive carrying out the “membership,” here on has focussed Congress that fact and an individual relationship between characteristic with associations quasi-political conspiratorial type of con- Congress was activities aspect of whose criminal legislature that the the conclusion require itself cerned, of bounds permissible and familiar traveled has outside specificity truth, In imputability. criminal vice; pro- necessarily a relationship is not proscribed warning.19 and instruction vides member- argument is the met, then, must be What knowl- the elements accompanied by when ship, even quantum an insufficient intent, affords specific and edge activ- alleged criminal organization’s in the participation and aid form of significant insufficiently an ity, is, sanc- of criminal imposition permit encouragement recognized indeed be It must on that basis. tions illegal organ- of an a member merely becomes who person more nothing doing need be “act” alone by that ization, on activities purposes his assent its signifying than only the sort other, on providing, hand, one *21 knowledge comes from encouragement moral It doing. is organization in what the believe that others encourage- assent argued such may indeed be impetus given practical of the concrete, do fall short ment by a instance lent for is enterprise which a criminal to knew that proof that he requirement of concerned, by the purpose it was his advocacy, and that organization engages in criminal advocacy. further criminal Law, Law & the Criminal generally Hart, The Aims of See (1958). Contemp. Prob. 401 commitment part conspirator on of a to act in further- enterprise. ance of that A member, distinguished from a conspirator, may indicate his approval a criminal enterprise by very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever.
In an area of the criminal law which this Court has indicated more than once demands its scrutiny watchful (see Dennis, supra, at 516; Yates, supra, at 328; and also States, see Noto v. United decided today, post, p. 290), these factors weight20 have and must be found be overborne in a total constitutional assessment of the statute. We think, however, they are duly met when the statute is to reach only found “active” members hav- ing guilty also a knowledge and intent, and which there- prevents a fore conviction on what might otherwise be regarded as merely an expression of sympathy with alleged criminal enterprise, unaccompanied by any significant action in its support commitment undertake such action.
Thus, given the construction of the membership clause already discussed, we think the factors called for in ren- dering members criminally responsible for illegal advocacy of the organization fall within established, and therefore presumably constitutional, standards of criminal imputability.
3. First Amendment. Little remains to be said concerning the claim that the statute infringes First freedoms. It Amendment settled in Dennis that the advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to pro- 20Compare concurring opinion of Mr. Whitney Justice Brandeis in California, v. 357, 372, 274 U. S. 373. *22 aegis pur- of what albeit under advocacy, such mote as is such association is not party, a ports political to no can discern Amendment. by the First We protected purposeful a when it constitutes why membership, reason same for- group engaging a complicity form degree any greater receive should advocacy, bidden Amendment. of that guarantees from the protection an enactment of such mere existence If it is said that the constitutionally protected inhibit the exercise of tends that one unhealthy fear an engenders that rights, lia- criminal unwittingly embroiled himself may find provides that the statute surely is answer bility, the knowledge to have proven a defendant must be is, It may be convicted. he advocacy before proscribed groups or other parties course, quasi-political true differ from aims illegal may legal both embrace pur- its criminal is defined which conspiracy, a technical conspiracy with the knowing all association so that pose, far as First proscription proper subject a criminal is If there were concerned. Amendment liberties are a group with of association prohibition similar blanket indeed be a would having illegal aims, there legal both asso- expression or political danger that legitimate real clause, as membership but the be impaired, ciation would freedom of deeper not cut into the construed, here does “the substantive necessary is to deal with than association v. prevent." Schenck Congress right has a evils that clause does not States, 52. The S. 47, United U. organization with an make criminal all association There advocacy. in illegal engage shown to has been “specifically that a defendant proof clear must be organization] aims of the accomplish [the intend[s] States, post, Noto v. United resort to violence.” organization for whom the 299. Thus member p. at aims and legitimate the advancement a vehicle for he the statute: the ban of not fall within policies does *23 about requisite specific bring lacks the intent “to government speedily as as circum- overthrow of person may foolish, permit.” stances would Such he is not perhaps merely optimistic, but deluded, this statute made a criminal. petitioner’s challenge constitutional
We conclude that must be overruled.21
III.
Evidentiary Challenge. in will Only gen rare instances this Court review the sufficiency support eral of the evidence to a criminal ordinarily is a conviction, prop function erly belongs Appeals. to and ends with the Court of We States, so in in do this case and No. Noto v. United post, p. 290 — our first review of convictions under membership only clause of the Smith Act—not to make sure that substantive constitutional standards have not been but thwarted, provide guidance also to for the future in to the lower courts an closely area which borders so upon constitutionally protected rights. phase
On this petitioner’s principal the case conten- tion is that the evidence was insufficient to establish that Party in engaged present advocacy of violent overthrow of the in Government the sense required by the Smith Act, is, in “advocacy of action” for the accomplishment of such overthrow either imme- diately or as soon as proved circumstances propitious, and in uttered reasonably terms calculated to “incite” to such action. States, See Yates v. supra, United 318-322. This contention rests largely proposition on the that the appear agree As both sides present the “clear and dan ger” doctrine, applied Dennis, supra, as viewed and 508-511, at also membership reaches the Act, clause of the peti Smith and since the tion for certiorari tenders no issue applying as to the method of here, we do question. not consider either differ mate- of the case does not aspect on this evidence in Yates stated was the Court from that which rially advocacy there. that sort of to establish inadequate In Yates the Government sought to use the Communist Party, at least the California branch Party, or various individuals conspiratorial nexus between engage among conspiracy other with a charged, things, error advocacy. Upon reversal here for illegal advocacy pro- charge on the nature of the trial court’s exercise of Act, Court, scribed Smith consider 2106,22 under S. C. went on to powers § its 28 U. *24 adequacy purpose of the evidence for the of deter- the acquittal as an should be mining to which defendants ordered, way and as to ones the for a new trial open. process be left In the it was stated that should theory was Party-conspiratorial-nexus the Government’s establishing unavailing because the evidence fell short of Party’s advocacy that the constituted “a call to forcible accomplishment action” for the of immediate or future in teaching contrast to the of mere “abstract overthrow, doctrine” at 329. At the favoring S., end. U. same time, however, it was found that the record reflected episodes certain which, considered, might permis- was advocacy sibly illegal lend themselves to an inference of id., by particular Party (see 331-333). members at It concluded, episodes these and similar however, (id., “sporadic” 330) justify too and remote their were attribution to its abstract Party, possibly casting in a different mold. teaching of “Communist classics” Accordingly, directed an of those acquittal Court defendants who had not themselves been connected with episodes. such gives power upon to “direct That statute review Court
entry may just appropriate judgment ... as under such circumstances.” agree petitioner
We with evidentiary that the question here is in large part by Yates. controlled in The decision Yates rested (not on the view articulated in opinion, though perhaps it been) should have that the Smith Act offenses, involving they as do subtler elements than are present most other call crimes, for strict standards in assessing the adequacy proof needed to make out a illegal case of advocacy. This premise is applica- prosecutions ble to under the membership clause of the Smith Act as it is to conspiracy prosecutions under that statute as we had in Yates. of Yates with respect to this petitioner’s impact
evidentiary challenge is not limited, however, to that decision’s requirement of strict Yates proof. standards of also general articulates criteria for the evaluation of evi- dence determining whether requirement is met. The Yates opinion, through its large characterizations of portions of the evidence which were either described detail or referred reference to record, indicates type what of evidence is needed permit a jury to find (a) there was “advocacy of action” and (b) was responsible for such advocacy.
First, Yates makes clear what type of evidence is *25 sufficient to illegal show advocacy. This category itself includes evidence of the following: the teaching of Marx- ism-Leninism and the connected use of Marxist “classics” as textbooks; the official general pro- resolutions and nouncements of past at conventions; dissemi- nation of Party’s general literature, including the standard outlines on Marxism; the Party’s history and organizational structure; secrecy of meetings and the clandestine nature of the Party generally; statements officials evidencing sympathy for and alliance with the U. S. S. R. It was predominance of evidence of type this which led the Court to order the acquittal of several Yates defendants, with the they comment that had present been single a remark or themselves “made not tend would remark which made a when someone else kind However, them.”. charges against prove to in a con- itself to sustain while insufficient evidence, context evidence, irrelevant. Such viction, is not illegal showing value evidence, may be of of other advocacy. kind of the Yates also indicates what opinion
Second, to two pointed the Court is sufficient. There evidence ac- of directed the denial justified of events which series Yates The Court nine of the defendants. quittals as to meet- defendants, seven of the respect that with to noted witness by the were described Francisco which ings San teaching systematic “the to be might Foard be considered by the illegal action which is condemned advocacy a small meetings, In S., at 331. those statute.” 354 U. revo- only taught that violent were not group of members techniques taught .they were also inevitable, but lution was Yates record example, the that end. For achieving to prepared to be were directed that members reveals to deal with into a revolution and general a strike convert revolution. specifically for prepare them Negroes so to the Court meetings, Francsico In addition to the San area Angeles in the Los certain activities referred to 'advocacy of ter to amount might be considered “which two Yates defendants were and with which action1” did Id., again, participants Here linked. 331-332. of eventual inevitability teaching of the stop with legal techniques, both explain to revolution, but went on in con- for or preparation employed illegal, member Thus, one with the revolution. nection mov- ... in methods indoctrinated “surreptitiously were told ”; crisis’ others in time of people 'masses of ing as the techniques prerevolutionary adopt such Russian through system a communication development special Id., to- 332. Viewed Pravda. newspaper similar *26 gether, these events described in Yates indicate at least patterns two of evidence sufficient to illegal show advo- cacy: (a) the teaching overthrow, accompanied forceful by directions as to type illegal the action must be taken when the time for the revolution is reached; (b) teaching the of forceful accompanied by overthrow, a contemporary, though legal, clearly course of conduct undertaken specific for the purpose rendering effective illegal the later activity which is Compare advocated. States, Noto v. United post, at 297-299.
Finally, Yates is also relevant here in indicating, at least implication, type and quantum of evidence necessary liability to attach illegal for advocacy to Party. In discussing the “conspira- Government’s theory” torial-nexus the Court found that the evidence there was insufficient because the incidents of illegal advocacy were infrequent, sporadic, fairly and not related period covered In indictment. addition, the Court indicated that illegal advocacy was not sufficiently tied to officials spoke who such. short, Yates imposes a strict standard of
Thus, proof, and indicates the kind of evidence that is insuffi- cient to illegal advocacy show under that standard, kind of evidence that sufficient, pattern what evidence is necessary to hold the Party responsible for such advocacy. With these criteria mind, we now proceed to an examination of the evidence in this case. begin
We with what was Yates, present also general evidence as to the doctrines, organization, and tactical procedures of the Communist Party, exposited by Lautner, the Government’s foundational witness both and Yates. Together with documentary evidence, here Lautner’s testimony, based on high-level participation in Party affairs from 1929 to 1950, furnished necessary background in Party theory and terminology which is *27 Party- of the tenor of appreciation proper to the crucial out taken pronouncements, for these pronouncements, peace- and harmless appear context, might larger of this that was The distinction being so. reality in able without and advo- advocacy drawn Yates in between theoretical basic, but is of course as a rule of action cacy of violence vocabulary, in a special is carried out teaching when the to an at least relevant vocabulary is that knowledge of teaching. of the and tenor quality understanding of his- pre-war having covered testimony, Lautner’s of the 1945 reconstitution to the Party, passed tory of the the Com- Party, as that Prior to time organization. position to the had adhered Association, munist Political achieved society could be a change to Communist that the The reconstitu- means. democratic through peaceful, at a National approved Convention finally tion, which was principles return to the involved a July in Commu- in the so-called As found Marxism-Leninism. con- of industrial adoption program of a classics, the nist especially among Negroes, effort increased centration, former of the repudiation complete South, in the “revision- doctrine of and his Browder, Party leader, testified, that the United all so Lautner ism,” signified,' exception no regarded as to be was henceforth States only be could that communism Lenin teachings resort as this nation such in an industrialized achieved in means peaceful a belief that revolution, violent that treachery. Lautner testified foolishness was emphasis as the well program, industrial concentration articulation of doc- minority, an Negro was on elements on those a it involved concentration trine, damage, most could do believed society in relation to fabric existing social crisis, to the in time of its victory polls at the numbers, and their resolved it was further testified that concern. Lautner imple- order Convention the 1945 National at principles ment the reconstitution, program thorough Party membership re-education of the whole should be and Lautner undertaken, charged himself was duty carrying with the out this as a Dis- re-education Organizer trict and State Chairman. The balance of Lautner’s testimony description was devoted to a detailed of the elaborate underground “apparatus” which he charged up others were with setting the various *28 portions country assigned of the to them.
Mrs. Hartle testified as in to her activities the Party, primarily in the Pacific Northwest area, from to approximately 1952. Mrs. Hartle confirmed, many respects, testimony Lautner’s as to teaching and throughout doctrine this period. After the recon- stitution she was sent to the National Training School in New where York, thirty “officers and functionaries” from parts various country of the were “re-educated” in accord- ance with the decisions and resolutions of the 1945 Con- vention. She was taught about “dialectical materialism,” and theory the of struggle capitalist between the class and the working class. They taught were “and reference was a quotation made to . . . that it is the duty of a revolutionary try not to gloss to over this class struggle try or to compromise to it, but to unravel it, to allow this struggle class help this class struggle to unfold, the proceed.” clash to The class was told that “it is the duty of a Marxist-Leninist to be a revolutionary and not a reformist.” They were further instructed “that the United States . . . was objectively at the stage for Proletarian revolution,” that the time for proletariat the revolution would come when the objective conditions of political or economic crisis coincided with the “subjective condition” of a Communist Party which large was enough, enough with “influence” among the working classes, “to give the necessary leadership to lead to the seizure of power.” indeed may far so testimony summarized of the
Much of revo- theory the mere to to relate considered the teaching at the However, advocacy. lution, abstract a lower descended also Training School National that told Hartle was Mrs. generality. level of “preparing Party was of the “role” take to be able ready to be people workers and a “revolu- when power” take how to to know power, plan time, “the that At arose.” tionary situation class working lead the be to Party would program state Bourgeois and “to smash power” to seize the class task, this latter respect machine.” With told: is not smashed machine state Bourgeois .
“. . seizing- the course but power, after the seizure of have prisons police, power armies, inop- and rendered up and smashed with to be dealt power, the seizure course of erative replacing matters some other matters, other administrative some of the the, such as the, state, *29 a take matters some would and other apparatus the elements of the forcible time, but longer period course of in the must smashed capitalist state be reorganiz- things like other power, but some taking that, like some matters system, or ing banking the longer process.” in a could done somewhat be “subjective of the the fulfillment pressing In toward was Mrs. Hartle action, necessary for such conditions” Commu- activities of the struggles and taught that “the of seizure working class for act Party prepare nist the Russian Communist history power,” and in the school and taught Party and was Revolution constantly history were of this principles events and States. in the United contemporary conditions related to coalition told that the class was Thus, example, had successful proved so peasants and workers in in America a counterpart in have its Russia should in especially the South. Negroes, coalition of workers Training at the Following School, her classes National Washington, helped Mrs. Iiartle returned to she where organize “underground to recruit and fashion” in that At employees Boeing of the Aircraft Plant State. Party was active schools time, the same Mrs. Hartle instructed her area. She testified that she had both been had herself taught: “. . . means goal might which the ultimate attained was that means be those would be forcible. theory teaching teaching, any was peaceful a socialism, growing road to or a over from capitalism betrayal working to socialism was a Party leading class and thá't the Communist working class arm it in place would have to the first with the theory the workers must know and must prepared they only to know that can take power forcibly.
“The action that Party Communist members should take preparing for the goal ultimate . I taught and that I taught, to build the were vanguard as the party of the working class, theoretically equipped party, equipped with theory of Marxism-Leninism, a highly organized party that could act as a unit, as a monolithic with whole, democratic centralism, principle guiding it . . . and that the Communist Party should be the connection between the van- guard and the working class millions in this prepara- tion working with and winning the confidence of *30 the working class and allies of working the class, such the as, Negro people, poor the farmers, other national in groups, and way, in the course of struggle, constant struggle taking the forms of strikes and marches and lines picket and demonstrations and working class the train to activities kinds of various battle.” revolutionary people and the in Party School a attended who Duran, The witness taught been had he what described Angeles Los Education the National of a member Moreau, by one Party: Commission . . . Prole- the explanation in his divided "He Those groups. into two being divided ... tariat and revolution, the lead that would industry speak- follow, and that would in agriculture those stated Moreau Professor revolution, the about ing that he manner emotional very a class to the capi- the _see against gun carrying himself could it was all the class explained B.’s and O. talist S. Lenin. Marx and the science based on more Revolution the Proletarian discussing “In throughout explained Moreau thoroughly Professor would Revolution the Proletarian the school the sin- file, and rank if a Bolshevik about only come teach and teach, and get out Communists, would cere system changing the desirability the people, doing them, and changing necessity and the cannot you people teach had to we that, system, a Socialist system capitalist change it had to way; peaceful successfully, to socialism by force away to be taken and had from, erupted state the entire them and from away violence, and I.,B. F. smashed, the Bourgeoisie machinery whatever Navy, Army and the the courts the Bour- instrumentality entire what —the it, on by the substituted had to be smashed geoisie machinery. Proletarian period of revolution during the . and “. . make transition, we had violent transition, *31 get away mass work to the masses from the Bour- they geoisie join so would not a counterrevolution movement.
“It meant after the people of the Communist the Party, vanguard, satisfied, had become that Bourgeoisie machinery they was and were smashed, they guns then also had to collect from control, people and people control the themselves.
“Q. I understand, Do Mr. Moreau dur- [sic] ing period this people, is, of revolution the masses of the people, carrying guns? would be Yes,
“A. sir. “Q. And after the I revolution do understand that go would around and guns collect these and away take them people? from the “A. Yes, sir; away take them from those that helped them capitalist system overthrow the in order to assure the revolution itself. . . .
“Immediately after the overthrow of capitalist system and establishment of dictatorship Proletariat, it became necessary for a Communist Army to establish Red in this country, only secure and maintain the dictatorship of the Prole- but tariat, control the people well, and those people that did help overthrow the Government would not have rights civil whatsoever, no vot- ing rights, or anything; they would be dished out to them according way to the they felt, way they fell with the Communist office dictatorship.
“Q. Mr. Now, if what, Duran, anything, did Mr. Moreau you teach in this school about the role that played would be by the Communist Party during period of when the Government would be revolution overthrown force and violence?
“A. The role of the Communist Party, specifi- cally within the Party, the Bolsheviks that is leading role; a role, vanguard play to first we teach that so scientifically in explained overthrowing them desirability people through the be done only it could the, teach them the time and then when Revolution, Proletarian *32 capitalist against them stampede could ripe we class.” taught had he been to what also testified
Duran in a States, seven Organizer District Berry, Art in , 1952: school Colorado application the scientific discussing “. . . we were between period the transition Lenin to of Marx and he demonstrated and socialism, and capitalism put quanti- a could you that water, the kettle of with set it some- and a kettle amount of water tative masses, like the happen, just would nothing where, happen. nothing does same you get if said, however, .
“. . [he] of water amount the same kettle with amount, same to you begin it, then fire underneath put and it, it reaches eventually and changes, quantitative get and qualitative a it has to where point a nodule same continued, He into steam. abrupt transition in this the revolution development applied to make cannot will not and American sense, people to socialism capitalism from change over a successful water, underneath the fire themselves, like leads them Party teaches the Communist point, nodule society reaches when the where before people people teaches the Communist into abrupt change them to make then leads society of socialism. explanation same within the
“Substantially, ... he stated violent overthrow of the Government only that not but that we that, would would a up point have to set establish central barricades, participate from; from where we would he stated literally speaking the ‘we’ would have to have a 'we’, central point during may because the revolution it necessary become in certain ebb, battles, retreat and we would to learn to in an organiza- have retreat way tional and a way. correct It was essential learn to ebb it was to flow on the revolution.
“In the ebbing we were to see that we before ebb enemy wiped everybody Ebbing out. to the cen- tral point that barricaded, had been reorganization, and then at the correct time start flowing forward the revolution.”
The witness Obadiah Jones testified concerning Party Training School in St. Louis which he attended 1947. Jones taught “that only way prob- the national *33 lem could be solved would be connection with the Proletariat Revolution.” Jones was also instructed as to the nature aof army: Communist
“A. He said general staff army of an was different from the Party Communist . . . general staff anof army operated from a spot safe from behind the line and led army the from a far distance, and that the Party went forth and fought with the workers.
“Q. say Did he with anything reference to the techniques?
“A. Yes, you he said that couldn’t good be a leader without knowing all techniques of the of fighting.
“Q. Did say he anything with respect to carrying out instructions?
“A. Yes, sir. “Q. did say What he in that connection? “A. He said that capitalists in army did not but the Commu- full, instructions out the carry they be, would the cost of what irregardless did, nists completely.” instructions carry out would by the required students-were session, the the final At pledge: to take a instructor are Communists was each us
“The pledge a re- us have Party and each of the or members responsibility our carry must out and we sponsibility recipi- Party and its interests of and work for the Party even full will of out the carry ents and carry must kill, to we and fight it meant though them.” all of Party and the demands of out Reavis testified Childs, and Clontz, The witnesses Scales. We dealings petitioner with as to their primarily in the counterpart finds no testimony, which regard this whose the defendants respect Yates record with importance special being as directed, was acquittal and most strongest of the it some ways: supplies two on Party based against evidence unequivocal deeds, and man whose words of a and activities statements weight carry special Party high position, of his by virtue stand- Party from the the character determining dispositive clearly Act; appears and the Smith point of membership, Party quality petitioner’s as to him to consider we come intent, when knowledge his in this case.23 as the defendant but Party not as a official activities complains that as Petitioner evidence Jones, Lautner, Hartle, Duran, and emanating from such witnesses up This confuses with him. inadmissible not tied because *34 pre created, important is as a Congress for it has nature of the offense particular adverting defendant liminary matter, to without organization he is of which prove character of prosecution, to on petitioner’s claim being other side charged with a member. weight petition to giving greater or conclusive this score would entail Party merely he because to nature of the er’s admissions as In Ralph Clontz, Jr., C. then a student at Duke Law School, undertook to furnish the F. B. I. with infor- mation gained he had about Party activities Communist in North and Carolina, to volunteer his services at- tempting penetrate to Party acquire to further infor- mation. As a result, September that year, Clontz postcard sent a to petitioner, him informing that he awas law student and that he was interested in communism. replied by sending Petitioner Clontz “a large cardboard box filled with Communist An literature.” accompanying headed letter, “Carolina District Party A.” U. S. with the notation “Junius Scales, Chairman,” explained: separate
“Under I cover already have you sent rather varied sample of our literature. I hope you give will it close attention. If I can discuss matter my relating Party and program its with you in person, I will glad to do so.” Several days later Clontz went petitioner visit began thus a relationship which him bring was to into intimate contact with the Communist Party, its teachings, purposes and activities.
At an early meeting between the two, petitioner told Clontz that it was impossible for the Communist Party to succeed power through educating the people country and their gaining votes at the but polls, that a forceful revolution would be At a necessary. later meet- ing, the discussion was not limited to the theoretical inevitability of revolution, but beyond went the theory itself to an explanation of “basic strategy” which the defendant in this case. But illogical would be as prelimi- on the nary question as excluding would be up evidence not connected with petitioner. The as to evidence Scales’ weighty words and deeds is strong against only position because of Party, his in the not because he is the defendant here.
Communist Party using give was to concrete foundation e., i. to the theory, bringing to about the revolution: [petitioner] “The defendant explained that basi- cally their strategy was bottomed that concept on there were in people two classes of this that country, could be used Party the Communist to foment a revolution.
“The first class working he termed the class or Proletariat, working he had as its natural said, class, born leaders or vanguard, Party. Communist
“The second class, he in described, country this what he termed the Negro Negro nation. The nation he separate described as a nation in what he termed the Black Belt, including thirteen Southern and the States, strategy of the Communist Party was bring to the working class, led the Communist Party, what he termed the Negro nation, to- gether, bring about a forceful overthrow of the Government.
“Now Scales and the Party taught the basic strategy of the Communist change, would never but that tactics might be altered as the situation changed.” petitioner’s On invitation, joined Clontz the Commu- nist Party on January 17, assigned 1950. He was not a particular group but a member “at in large,” became order to continue his petitioner. instruction under In the course of this instruction, petitioner repeatedly told Clontz necessity for revolution bring about the Dictator- ship the Proletariat. analogized Scales in situation the United States to prior Russia to the 1917 Revolution. He pointed out that revolution would be “easier” this country than it had been in Russia: “that while in the Soviet there Union had been no help one to Party, country Soviet have the bene- started, the revolution we would when country, Russia, mother help fit of the from the *36 part because bringing revolution, about our own in Party the Soviet purposes the of the Communist in scope and that we was international Union in help receive all cir- naturally would continue to Party the when the revolu- cumstances from Soviet in country.” here this tion was started could explained that the Soviet Union Petitioner troops land to start a revolution expected not be in had been unsuccessful procedure here. A similar in he said “that we Communists Rather, China. country revolution, would have to start the but that fighting it,” we would have to continue Party in this would aid the Communist Soviet Union experienced it “with revolution- by furnishing endeavor “if He added that the United aries from Russia.” in their revolu- war on the Communists States declared troops, land and he tion, then the Soviet Union would bloody time all.” asked said that would be a for When expect 24 As stated Clontz: “Scales said that we could not troops it. the Soviet Union to land to start our revolution and finish experience taught “Scales further said that had the Communists they China, approach disastrous, . . . that that that sort of was only Communists, generals had sent in Russian and the result completely, been had been licked had Chinese Communists Union, approach, was shown in the new Soviet Mao-Tse-Tung, example Mao, who was then the who was then Chinese leader in Communist Government. Russia, pointed
“He out that Mao had never even been to but instead the Soviet Union and the Soviet Communist had sent military leaders, Mao, over leaders to instruct and his and had bringing professional aid them in sent over revolutionaries could about their revolution. drawing experience
“He said that we on on the could count Union, they also would furnish us when the Soviet and that experienced with revolutionaries from Russia.” revolution came that a noted Scales occur, this would all when by Clontz coming of the accelerate greatly would “depression prepare properly used it if the Communists revolution” people. masses of a scholar- awarded to be arranged Clontz Petitioner School at the Jefferson York study New ship to dur- Party School, an official Science, Social arrived 1950. Because Clontz August ing the month being offered, were courses when few scheduled at a time received at the school training of his the bulk the teacher Wilkerson, A. Doxey instruction from private arranging had communicated petitioner with whom told petitioner, Wilkerson, like scholarship.25 Clontz’ Clontz, wrote instructing point Wilkerson At in the course of one *37 illustrated he told Clontz “M-L=F&V” which out the formula that States in the United adopted by appellate courts position Clontz equalled violence. teaching force and Marxist-Leninist testified: had that formula explained to me that since
“Doxey Wilkerson Party by National be taken established, had had to been action goal and their aims principles their their and the fact that to conceal He revolution. and violent included forceful and their doctrines issued had been statement out, example, that an official pointed for Party A. U. S. the Communist by the Commission of Education texts, outlines, certain study disclaiming certain disowning certain or Party. by put the Communist publications out Party members to all Communist fact, had ordered “In the order said, date— statement, particular that he after in, turn those and henceforth, not we will said exact date —had I don’t recall the Party publications. recognize these official as things. They, first they accomplished two doing that “He said trial their technicality Communists on for all, established a Marxism-Leninism, longer accepted Party no attorneys, that teachings and in its included because, said, Marxism-Leninism he all of a violent revolution. concept basis its unduly hamper the Communist secondly, did said, that it “He that things be left unsaid many would Party, future that in the that things unwritten many would be left said, previously had been teaching more that, example, for written, had been previously Clontz, Party “that recognized the Communist only that kind of expressed to themselves means proper means, means, would be would be forceful longer any pretense that there even among no intel- ligent voting system any peo- Communists ple’s bring government.” election could also He stated, had, basically Scales “the revolution would by combining come about of what forces had been already identified as Negro working nation and the class vanguard.” as the
In line with this strategy, Wilkerson advised Clontz that he should not let membership his in the Com- munist known, become remaining “un- der cover” helpful he “would be much more to the Party when the revolution part came.” As of his undercover activity, Clontz was attempt directed infiltrate organizations various working of the class order to achieve “a background respectability” and to be able organizations to lead such goal “toward the . . Party, . the undermining of the Govern- ment and overthrowing the bringing com- Government, munism the United States.” But Clontz was not to lose contact with the if Party, “got he isolated with- out Party . . direction . pretty efforts would be [his] outline, bare given, would be and the instructor would fill in the revolutionary part, or the students would be sent into the Marxist- Leninist works as revolution, having references to find the without *38 spelled out in the outline. said, that,
“He naturally, change would not goal the basic or the basic aims of Party, the Communist but that it would make it more difficult for Communists to be convicted. thing during I “One recall discussion, given our he had me a
pamphlet, study a outline entitled White Chauvinism, pointed he me, said, out to he instructing you ‘Now I have been from that outline, technically illegal but it is because we Communists have it, you holding illegal disclaimed so that are there, an document ” actually/
249 instructions, these connection with In wasted.” largely frightened things “one of mentioned Wilkerson only knew that they leaders was States the United and the other Com- China with they have to contend did every capi- that also munist-dominated but countries, Communists, working party, class country the talist from within.” working would be Carolina, reported he to returned North When Clontz School. at the Jefferson his activities petitioner on to from the instructions petitioner, informed under He also York. Petitioner to New to move I., F. B. that he wished and to his direction remain under for to arranged Clontz effecting rather than York, while New him, dues to pay York to New March moved transfer. Clontz a formal “get him with to there Scales directed 1951. While they value report to on what L. organization A. C. U. had . . .” Clontz struggle . coming have in the might “infil- to petitioner an associate advised also been setup.” Defense . . the Civilian trate . to their testified also Childs Reavis
The witnesses ar- things other among Scales, who relationship with their where Party schools attendance at for their ranged as that pattern same much the followed instruction “Party attended In Childs by Clontz.26 described Organizer, assigned him the District early tasks, of Childs' One bodyguard for a to serve Party member was as a official, accom Congress. The Rights the Civil visiting official February of Chapel Hill in spoke in petitioner, by Childs and panied Childs, was “that according theme, His War. on the Korean means capitalists as a by the being used the Korean War sending are capitalists Negro people . . . oppressing the trying to are people who fight the Korean Negroes to Korea in the South.” Negro people are rights, same as the fight for their “exact official’s testified speech, and on the took notes Childs were: words” Niggers are niggers. court-martialed they are still called Korea “In is one slaughtered. Lieutenant Gilbert refusing men their have *39 Training School” of which petitioner was a director. The given school was “for outstanding cadres in the North and South Virginia Carolina and Districts of the Communist Party.” It was held on a farm security strict meas- and ures were taken. The District Organizer Virginia instructed at the school. He told the students that “the role Party of the Communist working is to lead the masses to the capitalist overthrow of the government.” With respect to the preliminary task of gaining the “broad necessary coalition” to achieve this he stated task, that, “. . . the Party Communist has a program of indus- trial concentration in they try get which people, that is, people Party who are Communist members, key shops key into industries which the Party has designated determined or to be industrial con- centration or plants. industries This is so that Party Communist in particular members plant will be able to cell, have a or a group they will be able to effectively plan more things for such attempting to control the union in that particular plant.” And, in a compulsory recreation period, this same gave instructor a demonstration jujitsu and, explaining that the “might students be able to use picket this on a line,” how to kill a person with a pencil. According to Childs' testimony, “what he showed us to do was to take our . . . pencil, just take pencil place and simply palm your hand so that the back will rest against the base of the thumb, and. then-we were to take it, and the person, give a quick jab so it would |that penetrate through here [demonstrating], ánd enter the example. They say nigger yellow. Yellow, give nig- gers in North Georgia Carolina fight rifles and tell them to rights. Yellow, their man, you fighting you will see like have never seen before.” *40 it take just that, do we could not if we
heart, and then throat.” it at the base grab and School York Jefferson New Party’s the attended Reavis students, the History” “Negro on In a course in 1942. that taught South, were the from primarily drawn revolutionary group only the was Negro people “. . . the themselves align that we could States within the United through gains their reach hope [sic] and to with, [sic] the violence, overthrow and of force the avenue was . .” Reavis . . faction Proletariat Government, by at the Electric Western employment to later seek advised He stated: in Plant Winston-Salem. and home Harvey’s at Mr. into Scales bumped
“I getting been advice I’d . . . the report said I—the on question I advanced by him. confirmed was there get employment I in case did I do should what a, Govern- I knew was Electric, and at Western I asked was I do case should work, ment what same, do the I told to and was papers, certain sign affidavit, Taft-Hartley a signing they when that had they did, that them, before sign go ahead and that any signed papers if I had me asked defendant Party, and I in the proof might be used any.” I didn’t remember a case make sufficed this evidence conclude We Den- advocacy. Party illegal issue of on the jury for at rest doubt definitely laid Yates have nis over- for violent action advocacy that present future requirements constitutional statutory and satisfies throw end. to that immediate action advocacy of with equally record this Hence at 321. S., 509; U. atS., 341 U. no evi- it contains because deficient be considered cannot overthrow, immediate dence advocacy amply showed leaders evidence Since period during the indictment preaching continuously were forcible inevitability overthrow, of eventual is a narrow one: whether question and basic first preaching, that such infer permissibly could jury building up at “was part, in whole or aimed action maintaining it readiness for group seditious kind of indoctrination time . . . the propitious at a was condemned Dennis.” to action which preparatory Yates, supra, we think that score, at 321-322. On fully instructions which satisfied the jury, under Yates,27 to infer from this requirements of was entitled teaching charged: “Moreover, The trial court in the abstract *41 teaching, teaching objectively, is, discussing, explaining, or or that by purpose any author, expounding the aim or of what is meant group, society overthrowing by or of the Government force and example, study by violence is not criminal. For and discussion Party by any group classrooms, study in or other or groups, public private meetings object informing or or with the purposes participants or of the aims and the audience Party entirely Marx, Lenin, Stalin, or the Communist doctrines of is Furthermore, being criminal, Party lawful. without the Communist persuade privately publicly could or its members that endeavor they adopt espouse the belief that should and Government by the United States should be overthrown force and as violence speedily permit. will This is no more as circumstances than advocat ing idea, advocating Moreover, an and an idea is no crime. without Party might transgressing Act, the Smith even instruct its mem good benefit, bers it that would be for their and if this belief or idea were carried into effect. permissible protected
“All this is because such utterances are by Constitution, guaranteeing the First Amendment of Federal speech. freedom of
“However, Party further, went and with the intention of if by overthrowing violence, taught, force and it the Government or principle both, one, advocated a rule or of action which called on its advantageous members concrete action at some to take forcible and by violence, time thereafter to overthrow the Government force and and, two, expressed or oral words that call such written as would ordinarily reasonably be to incite its calculated members to take overthrow; then, for such if the concrete and forcible action Com- systematic explicitness and con- preaching where neces- creteness, previously, of the sort described seemed sary the doctrine violent revolution —else- prudent, than a rule theory predictability where more a of historical put guide action, of conduct —was forward as a to future calculating, whatever be emotional or that the tone, “advocacy required; short, audience and occasion engaged was in. action” only question phase The other on this of the case such advocacy sufficiently broadly whether based to permit its think Party. attribution to the it was. We advocacy of action “sporadic” (cf. p. was not supra), the instances of it being infrequent, neither remote in time nor casual.28 It cannot be said that Party that, society munist did group, or became such a by was outlawed the Smith Act. teaching
“To be advocacy, criminal the just or or the call to action action, described need not be is, today, for immediate for action tomorrow, year. month, criminal, next or next nonetheless, It is if the action future, is to at an unnamed time in the to be fixed signal Party. circumstances or on from the
“It is upon criminal if it is a ready, call the members to be or to action, stand in readiness for or for a summons to action at a favor- able, opportune future, speedily time in the or as as circumstances permit, provided always urging will that the of such readiness be *42 reasonably ordinarily words would spur and be calculated to person ready for, a towards, himself and to take action the over- throw advocacy of the Government. But those to whom the urging urged is something addressed must be to do now or in the future, merely something. words, rather than to believe in In other advocacy action, merely must be of concrete and not in a belief However, abstract doctrine. urged the immediate concrete action be overthrow, should intended to lead towards the forcible so advocacy understood those to whom the is addressed.” 28Although particularized most of the evidence related to events not within the period, open limitations of course to the jury, was proper under given, instructions which were to infer that such events Party advocacy during reflected the character of the limitations period. contrary. Petitioner does not to the contend jury could not have found advocacy that the criminal fully authorized and Party. condoned We regard the testimony of the witnesses, whose credibility, course, not for as us, indicating sufficiently systematic a and substantial course of utterances and conduct on the in part high of those Party, the councils of the including petitioner himself, to entitle the jury to infer that such activities reflected tenets of the Party. testimony The described activities various States, including the teach- ing at some seven schools, among them Party the national school. The witnesses told of advocacy by high Party officials, including that of leaders Party nine Further, States. there was testimony that the Party fol- lowed the principle of “democratic-centralism” whereby a position once adopted by must be unquestion- ably adhered to by the membership. whole The conform- ity of the expressed views and the terms employed advocating violent overthrow such States as Washing- ton, North Carolina, Missouri, Virginia Colorado and could reasonably be taken by the jury practical mani- festation of “democratic-centralism.” Another concrete illustration of this principle could have been found in the circumstance that in almost every instance where a speaker engaged in advocacy of violent overthrow, he not only advocated violence to his audience but urged others go out and do likewise. All of these factors combine to justify the inference that illegal advocacy individual as to which testimony was was in adduced truth the expression of Party policy and purpose. requirement
The of Party imputability is adequately record, met in the note (See supra.) sufficiency evidence as other elements of the crime no exposition. requires Scales’ mem. “active” bership in the Party is indisputable, issue was properly submitted to jury under instructions that *43 petitioner’s The elements of entirely adequate.29 were p. 220) require (ante, intent” “knowledge” “specific and already beyond evidence no further discussion of the Compare and activities. utterances given as to Scales’ little States, They 299-300. bear at post, v. United Noto equivocal utterances fragmentary resemblance to v. insufficient Nowak found and conduct which were Maisenberg States, 660, 666-667, 356 U. S. United States, S. 673. v. U. United fail for insuf- does not prosecution holdWe proof. ficiency of
IV.
Alleged Trial Errors. were com- a number of errors Petitioner contends fairness of his vitiating having the effect mitted, given to those substantially similar For reasons trial. find that F. 2d we Appeals (260 38-46), by the Court of meriting points raise contentions petitioner’s none of reversal. Evidence. Prejudicial or
1. Admission Remote of certain as to the admission complains Petitioner specific pur- Party’s general or relating to the evidence admission of to the objects he poses. particular, In program the so-called Party’s about evidence pam- of a to the admission especially Belt” and “Black which contained Korea,” Truth “I phlet called Saw a that he was charged: “The defendant admits The trial court however, criminal, membership Party. For his member of the must be more simply member. It that he be it is not sufficient membership. inactive, purely technical nominal, passive, than a member, or inactive con determining he was an active whether In Party. To to the efforts he devoted of his time and sider how much part, his time all, or a substantial he must have devoted be active Party.” and efforts to the *44 description alleged American atrocities very gruesome
a matter, in There can be no doubt that this Korea. not have reflected well on particularly latter, the would if eyes in of the but jury, the or the the petitioner then crime, it was relevant to an element of the whether outweighed far prejudicial proba- its asserted effect so its tive exclusion of the was require evidence, value to a in sound decision which rested the discretion of the Particularly in of the fact that the most judge. light trial him- petitioner emanated from damaging of this material (260 2d, say F. at we cannot that its admission 38), self an of discretion which would warrant our involved abuse judge reversal of the conclusions of the trial and the Court of Appeals on this score. only
We therefore consider whether the com- need plained-of legally evidence was and therefore relevant pointed admissible. As we have out in our review of the the record, jury part could have inferred that Party’s the Communist program for violent revolution was winning Negro the of favor with the population the South, thought particularly susceptible which it to revolutionary propaganda Surely, and action. the then, Party’s evidence of the teaching Negro popula- the tion given right separate should be the to form a nation is Party’s not irrelevant to the issue of whether or not the program as a whole constituted a call to stand in readiness for violent action, particular plank plat- when this form was intended as bait for one of the substantial battalions hoped-for revolutionary array. Of course, preaching Negro population in the South has the right separate to form a nation does not of itself illegal advocacy. constitute But neither does teaching of the theory abstract of Marxism-Leninism, which we have held cannot alone form the basis for a conviction for violation of the Smith Act, Yates v. United supra; States, yet seriously cannot be urged legally irrelevant teaching such that evidence of pamphlet Similarly the evidence charge. in Korea cannot American atrocities alleged on advocacy illegal the issue of irrelevant said to be may not pamphlet Party. again, Once by the as would to violence incitement such an itself constitute over- violent Party advocated finding justify it was the from it that infer possible it is throw, but in the the Government Party to undermine purpose *45 meas- preparatory a in of war as time eyes people teaching sympathetic in legal itself, to ure, albeit violent revolution. advocacy to reception illegal was evidence and other argues that this Petitioner also his Whether him or activities. up with not connected membership necessary under the it is not, or since was independ- as an advocacy prove clause to evi- renders admissible offense, this element of the ent accepted in the defendant up with the not connected dence be- 23, supra.) Doubtless (See sense. note conspiracy that the to make sure special a need cause of this there is knowledge personal a defendant’s establishing evidence becoming in or his intent Party advocacy and illegal over- accomplish violent Party member to remaining a him. brought home to adequately cogent throw is in respect peti- all, said that, we have having But, said point. on this tioner’s claim The “Jencks” Claim.
2. the con- reversed first before us we was When this case in authority of our decision 355 S. on viction, U. States, the second Before 353 S. 657. Jencks v. United U. statute, Jencks Congress trial enacted so-called does him, understand Petitioner, as we 3500. § U. S. C. incorrectly applied that that statute argue not now grounds, on constitutional attacks, rather he case; his in the statute set forth procedure That the statute itself. procedure and that the not violate Constitution does in Jencks was by the decision of this Court required by us was assumed required by the Constitution States, enough It is S. 343. Palermo v. United U. a complaint by no criminal here that there can be say opportunity has been denied the that he defendant which do by government statements witnesses examine for such testimony, subject matter of their not relate to the testimony to that greater bear no relevance statements statements impeach than would which he seeks to Whether prosecution. unconnected with the persons testimony is decision prosecution so relate to statements trial but the Government vested not Once appellate for review. judge opportunity with full the state- determined, has been whether question this impeachment is a may purposes useful ments himself. rests, course, with the defendant decision which the Act limitation of objects also to the Petitioner adopted by the witness signed to written statements transcription substantially verbatim or to form of peti- However, of an the witness. oral statement prejudiced by been tioner does not assert that he has *46 any requested statement or provision, or that document authority him of the statute. In by was withheld on the aspect perceive circumstances we no basis for these petitioner’s of claims. Act Congressional Findings
3. the Communist Control Security and the Internal Act 1950. of of 1954 congressional findings Petitioner asserts that in both the character of the Communist contained deprived statutes him of a fair trial on issue of the may have Party. legislative That action character of tíre impossible, trial is not see precluding the effect of a fair States, petitioner’s F. Delaney 199 2d but v. United afterthought. appears claim here to be no more than an showing any during There is no of nor that prejudice, voir dire jurors petitioner attempted examination of juror ascertain of enact- any whether even heard these had ments, petitioner attempted any much less that to have juror disqualified ground. on that cannot on this We regard record this as a contention. substantial Finally, for the Appeals, reasons stated of Court F. 2d, 44-46, any at think that petitioner we waived right might question he have had to of the method choos- ing grand jurors by his comply failure to with Rule 12, Proc., Fed. Rules Crim. impropriety further that no in the choosing grand jurors method of has been shown. of judgment Appeals must be Court
Affirmed. Mr. Justice Black, dissenting.
Petitioner was convicted for violation of the “member- ship imposes penalty clause” of the Smith Act a up twenty years’ imprisonment together with a fine of $20,000 upon anyone a of, who “becomes or is member or affiliates . . . with, society, group, assembly or persons teach, encourage the overthrow advocate, [who existing government by knowing or violence], force purposes . ...”1 Rejecting thereof numerous con- urged upholds six-year tentions the Court reversal, imposed upon petitioner authority sentence under the prior of its decisions Dennis v. United States My dissenting Yates v. United States.3 reasons for from primarily this decision those set out are Mr. Justice 4 (f) Brennan —that Subversive Activities Con- § trol Act4 prosecutions membership bars under the clause Douglas Act—-and Mr. Smith —that Justice
1 18 U. S. C. 2385.
§
*47
261 the of defined, pre-existing “law clearly tried under I Clause the Due Process guaranteed by land” as ground.6 that reversed on should be his conviction think out point to important is I think it Secondly, the freedom- re-emphasizes case this manner in which in use “balancing presently test” nature of the destroying con- specific apply refusal its to justify by the Court In some of Rights. Bill of of protections stitutional pro- away has “balanced” it cases which the recent suggested has Amendment, the Court the First of tections be- this “test” of application in the justified that it was freedoms First Amendment abridgment of direct no cause being, these cases in each of abridgment involved, the was of “an than incident nothing more opinion, in the Court’s 7 function.” governmental a valid exercise of the informed if the that suggestion that implication possible A direct call a it would what with confronted were Court “balancing apply the speech, would abridgment First protections would enforce test” but causes This case its own terms. according to Amendment Peti- is justified. implication an that such doubt me to he express reason for the jail being sent tioner have entertained unlawful who people with has associated ais of course and that things, said unlawful ideas and assem- speech and freedoms of his abridgment of direct 6 opinion). See 117, (dissenting Hurley, 131 366 S.U. Cohen v. (dissent California, 366 U. S. 66 Konigsberg State Bar v. also ing opinion). 36, 51. See California, 366 U. S. Konigsberg Bar v. State States, United 72; Barenblatt v. Wyman, U. S. Uphaus v. also 388; v. United Wilkinson Wyman, Uphaus 364 U. S. 109; v. S. 360 U. 431; re In States, S. 365 U. 399; v. United Braden States, 365 U. S. disagreed, I as cases, I of these In each Anastaplo, S. 82. 366 U. abridgment majority’s characterization do, with still sig have term to “incidental,” I understand involved as dissenting my particularly See cases. First Amendment nificance in supra, case, at Konigsberg 68-71. opinion in the bly any definition that has ever been used —under term. Nevertheless, even as to admittedly direct abridgment, upon prior Court relies its decisions to effect that power Government has abridge speech assembly if its interest in doing so is sufficient to outweigh the interest in protecting these First Amend- ment freedoms.8 *49 I
This, think, demonstrates the unlimited breadth and danger of the “balancing test” as currently it is being applied by a majority of this Court. that “test,” Under in question every case which a First Amendment right is is asserted not whether there has abridg- been an ment of right, not whether abridgment of that right was intentional part on the of the Government, and not any whether there is way other in which the Govern- ment could accomplish a lawful aim without an invasion of the constitutionally guaranteed rights of the people. It is, rather, simply whether the Government has an interest abridging the right involved if so, whether and, that interest is of sufficient importance, opinion of a majority of this Court, justify to the Government’s action in doing so. This doctrine, say to the very is least, capable being of justify used to almost any action Govern- ment may wish to to suppress take First Amendment freedoms. Douglas,
Mr. dissenting. Justice When we petitioner allow to be prison sentenced to for years six being a “member”of the Party, we a sharp make break with traditional concepts of First rights Amendment and make serious Mark light- Twain’s hearted comment that “It byis goodness of God that in our country we have those three unspeakably precious 8 The decisions both upon of the cases which the Court here United, relies were “balancing rested on the See Dennis v. test.” States, supra, States, Yates v. 506-511; at supra, United at 321. and conscience, of freedom speech, of freedom things: them.” of either practice never prudence reminders Laws—shameful Alien and Sedition Even the as far so went in intolerance —never chapter early anof advo and conspiracy at aimed They were today. gowe scan “false, of publication at the and insurrection cacy of Government, against writing malicious” and dalous over sought control then Government 596. Stat. .The dis chief sources , one of the at strike “in order press (1951), in Freedom Miller, Crisis and sedition.” affection charge no conspiracy, charge here no is 56. There p. and force Government overthrow act overt any charge act. criminal other charge no violence, Party, “well-know the Communist “member” being a Government the overthrow advocated that it ing” bring intending to defendant “said violence, by force as speedily violence by force overthrow such about aof far short That falls permit.” would circumstances in intention rests Conspiracy conspiracy. charge of *50 others more or one with agreement in an alone but Fal v. States United project. an unlawful promote v. United Co. Sales 210; Direct 205, cone, 311 U. S. or sort kind any charge 703, No States, 713. U. S. aof concept in the embraced hitherto agreement here. made conspiracy man to sending association, by guilt today legalize
We Today’s act. unlawful no committed he prison when from It borrows one. serious is a tradition with break O’Brian, by stated As philosophy. totalitarian pp. (1955), Freedom Individual Security and National 27-28: any made of 1940 Act
“The Smith unlawful of or affiliate a member become be or to person teaches, assembly which or group, society, any with I, 198. p. (1903), Yol. Equator 1 Followingthe advocates, encourages the overthrow or destruc- tion of government in the by United States force or violence. These statutes together Smith Act [the with a 1920 amendment to the Immigration Law, Act of June 1920, 41 Stat. im- 1008], therefore, ported into our law the alien guilt doctrine of by association, which up to this time regarded had been as abhorrent and which had never recognized been either the courts or by Department of Justice, even during perils and excitements of the First World War.”
The case is not saved showing petitioner was an active member. None activity constitutes a crime. The record contains evidence that Scales was the Chairman of the North and South Carolina Dis- tricts of the Communist Party. He recruited new mem- bers into the Party, promoted the advanced education of selected young Party members in theory of com- munism to be undertaken at secret schools. He awas director of one such school. He explained the principles of the Party to an FBI agent posed who as someone inter- in joining ested the Party, and furnished him literature, including articles which criticized vivid language the American “aggression” in Korea and described American “atrocities” committed on Korean citizens. He once remarked that setting up underground means of communication, and in 1951 he himself “went underground.” At the school of which Scales was di- rector, students were told (by else) someone that one of Party's weaknesses was in failing place people key industrial positions. One witness told of a meeting *51 arranged by Scales at which the staff of the school urged him to remain in position his in an plant industrial rather than return to college. In Scales’ presence, students at the school were once shown how to kill person a with a a pencil, device which, it said, might in handy come have showed Scales line. Other evidence picket aon literature con- statements or distributed made several were com- Among them passages. taining implicating that Party line was to the effect that ments be working classes should in the Negroes South revolution; that a Communist a to foment violent used country in this power be voted into could not government communication controlled because Government sys- and the educational military, media, newspapers, the only way to achieve the that force was tems, and the Com- were to come revolution; depression if a predicted hand than be closer at munist America would would come Foster; Z. the revolution by William in the it would be easier United generation; a within because the revolution to effectuate than Russia States Peti- Communists. and advice from Russian of assistance literature or distributed at different times said tioner only be could of communism goals said that which have to start revolution that would by violent achieved working classes. internally with the That charged petitioner. act is single illegal Not one the indictment crime covered why is the essence of the revolution, proletarian merely belief2 —belief creed. belief Communist prosecution is found in Communist prototype present The on October in Czechoslovakia
lands. The Communist Government provided: law, 6, 1948, promulgated 3 of § against instigates people several “(1) publicly or before Whoever unity, terri- against independence, constitutional Republic, its government], system integrity people’s or its democratic [of torial guar- against order, its national character or its social or economic punished a minor crime Constitution, be by the shall anteed years. to three months rigorous for from three confinement Whoever punished in like manner: “(2) following shall negligence dissemination through gross makes intentionally the. easy.” possible or specified in Subsection instigative statement *52 Spinoza summed up a sentence history much of the of struggle of man think and speak what he believes:
“Laws which decree every what one must and believe, forbid utterance against this or that opinion, have too often been enacted to enlarge confirm or the power of those who dared not free inquiry made, suffer to be perversion have authority turned the superstition of the mob into violence against oppo- Theologico-Politicus Tractatus nents.” (London 1862) p. 349. thought
“The of man shall not be tried, for the devil himself knoweth not the thought of man,” said Chief Jus- tice Brian in Y. B. Pasch, 17 Edw. f. IV, pi. 2. crime of presehtly prosecuted a carryback to belief — —is the old law of treason where men were punished the death compassing of the King. That law, which had employed been for “suppression political opposi- tion or expression of ideas or beliefs distasteful to those in power,” Hurst, Historic Background Treason Clause, 6 Fed. B. 305, 307, J. was rejected here, and the treason clause of our Constitution was “most praised for the reason that prevented use treason trials as an instrument Id., political faction.” 307. Sedition or treason politics realm of heresy the ecclesiastical field long had centered on as the beliefs abhorrent criminal act. The struggle on this side of the Atlantic get was to rid of that concept punish and to men not for they what thought but for overt against acts peace of the Nation. Cramer v. States, United S.U. 1, 28-30. Montesquieu, who was a force the thinking (id., of those times 15, n. 21), proclaimed against punish- ing thoughts or words:
“There was a law passed in England Henry under VIII, by which predicted whoever the king’s death This high treason. law was guilty was declared despotic power the terror of is so extremely vague; it. In upon it recoils those who exercise great *53 last would not ven- king’s illness, physicians say surely they ture to he and acted danger; very right. Marsyas . . . that he had cut dreamed Dionysius’s Dionysius put death, throat. him to pretending he would never have dreamed of such thing by a night thought by day. if he had not of it tyrannical This was a most though action: for it had subject been the thoughts, yet his he had made no n attempt towards it. The not take them upon laws do punish any other than Spirit overt acts.” The (1949), Laws 1, pp. Yol. 192-193.
“Words do not constitute an act; they overt remain Id., only idea.” 193.
These were the notions that led to the restrictive defini- treason, tion of presently contained in Art. Ill, 3,§ of the Constitution, overt acts. Cramer v. United requires which States, supra; States, Haupt v. United 631, 330 U. S. (concurring opinion); in the Hurst, Treason United States, 58 Harv. L. Rev. 395. Our long painful experi- ence with the law of treason, wholly apart First from the Amendment, should be enough warning that we as free people should not venture again prosecut- into the field of ing beliefs.
That was the philosophy behind Board Education Barnette, v. 624, U. S. 641-642: can
“We have intellectual individualism and the rich cultural diversities that exceptional we owe to only price minds at the eccentricity of occasional abnormal they attitudes. When are so harmless to others or to the State as those we deal with here, price great. is not too But freedom to is not differ things limited to that do not matter much. That its The test of freedom. be a mere shadow would touch things as to right is the differ substance existing order. the heart of the in our constitutional any fixed star “If there can official, high petty, it is that no constellation, national- politics, shall be orthodox what prescribe force opinion or matters of or other ism, religion, faith therein. or act their by word citizens to confess an permit If circumstances there are occur to us.” they do not now exception, They in this case. trial is on Nothing but beliefs they are revolting. But most of us unpopular and to are the broad dogmas or faiths within ideas or nonetheless See Barenblatt v. the First Amendment. framework of States, (dissent). 145-152 United 360 U. S. *54 by the Bar Committee faith was stated creed truer to our protested in 1920 Hughes which E. headed Charles members Assembly to seat five New York refusal of the 3 Party: of the Socialist liberty of the institutions of “. . . it is of the essence cannot personal and recognized guilt it be opinion or to mere holding to the be attributed . .” acts . . in the absence of overt intent tradi- deep of revolution is our principle Belief it: Independence4 proclaims The Declaration of tions. de- any Form of becomes Government “whenever People of the Ends, Right it is the structive of these 5, 30, p. Doc., Sess., 1920, No. 4. Y. L. 143d Vol. N. allegiance to impelled withdraw their men “When honest are they community, still more when or of the the established law custom iniquitous longer to be is too persuaded that such law or custom are valid, generally some they principle more tolerated, seek for some of the higher authority, established law or custom than the ‘law’ of generally principle community. higher more valid To this law or institute new Govern- and to it, to abolish or to alter and Principles, on such Foundation laying ment, its as to them Form, in such Powers its organizing Safety and their to effect likely most shall seem Happiness.” part and is has been right
This of revolution century when Russia Last institutions.5 of our fabric came Kossuth Louis her, and subdued Hungary invaded January 8, 1852, On support. American to enlist here cause Hungarian sympathy spoke Lincoln 1852, January 9, on a committee which member of awas Freedom. Hungarian in Behalf of Resolutions submitted that read: one Among these resolutions sufficiently any people, right of “That it is the off, to to throw independence, national numerous government, form of existing their revolutionize, may they in its stead other establish such Works II, Collected Basler, Vol. choose.” (1953), p. 115. Abraham Lincoln address before the Lincoln an January 12, On “Any stated: Representatives House States United having power, inclined and being anywhere, people existing gov- off the up, and shake right to rise have them better. that suits a new one and form ernment, right right, most sacred valuable, is a most This —a —a community con- justification of actions which they appeal in then principle or They the law formulate as immoral criminal. demns *55 rationally be, defensible. is, them to way or seems to in such a harmony brings into with their because it actions them it is ‘true’ To to think of themselves universe, enables them rightly ordered corrupt having withdrawn from a part, as having the nobler chosen Humanity makes for or a force that God or in order to serve world Independence (1942), Declaration of good.” Becker, The highest pp. 277-278. post, p. 275. opinion, Appendix this See hope we and believe, is to Id., liberate the world.” Vol. I, p. 438.
Of course, government can against move those take who up arms against it. Of course, the constituted authority has right of self-preservation. But we deal prosecution of only Scales with the legality of ideas and beliefs, not with overt acts. The speaks Court prevention “dangerous behavior” punishing those “who bring work to about that behavior.” That formula man returns to the days dark when government deter- mined what behavior “dangerous” policed and then the dissidents for signs tell-tale of advocacy. What “dangerous behavior” must be suppressed in its talk- stage has had a vivid even history on this continent. The British colonial philosophy was summed up by Sir Wil- liam who Berkeley, served from 1641 1677 as Virginia’s Governor: “. . . I thank God, there no are schools free nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, against libels the best government. God keep us from both!” 2 Hening’s Stat. Va. 1660-1682, p. 517. The history is familiar; much of it is reviewed Chafee, The Blessings of Liberty (1956). He states one para- graph I what think is the Jeffersonian conception of the First Amendment rights involved present case:
“We must choose between freedom and fear —we cannot have both. If the citizens of the United States persist in being afraid, the real rulers of this country will be fanatics fired with a zeal to save grown men from objectionable ideas putting them under the care of official Id., nursemaids.” 156. In years recent we have been I departing, think, from the theory of government expressed in the First Amend- ment. We have too often been “balancing” the right of
271 society values other against association speech is more need a particular feel that judges, if we, see Rights. Bill of guaranteed those than important 508-509; Com States, 494, S. 341 U. Dennis United v. 399-400; Douds, 382, S. 339 U. Assn. v. munications Uphaus Alabama, 449, 463-466; S.U. A. A. C. P. v. N. v. United 78-79; Barenblatt 72, S. Wyman, 360 U. v. Rock, Little 126-134; Bates v. States, 109, S. 360 U. Wilkin Tucker, 479; S. 364 U. 524; Shelton v. 516, S.U. v. United Braden 399; States, S. 365 U. v. United son Bar, S. 366 U. Konigsberg State v. States, 431; S. 365 U. approach, This S. 82. 366 U. Anastaplo, In re 36; First Amendment of the commands treats Hand, (see of moderation” admonitions more than “no counter 278), runs p. ed.), (1960 Liberty Spirit 444, Griffin, 303 U. S. v. See Lovell decisions. prior to our 108; Board 105, S. Pennsylvania, 319 U. Murdock v. 450; 639. Barnette, S. 319 U. Education v. First of the views to Madison’s counter also runs It biographer, his eminent advised are as we Amendment : Brant Irving no make shall wrote, ‘Congress Madison
“When expect did not he rights, these infringing law’ Con- whether decide, balance, on Court Supreme them. infringing a law make could or gress could proposals, his in presenting observed true, he It was many of had violated legislative bodies that state But that rights. bills articles valuable most effectiveness judging no basis furnished amendments: proposed “ Constitution, incorporated into are they ‘If them- will consider justice tribunals independent of those guardians manner in a peculiar selves against bulwark impenetrable an they will rights; Legislative in the power assumption every Executive; they will naturally *57 led to resist every encroachment upon rights expressly stipulated for the by the Constitution declaration rights.’ of
“This statement by Madison, along with all the rest of his speech, sois devastating to the theory’ ‘balance that efforts have been and are being made to dis- credit its authenticity. The Annals Congress, it is is not an said, official document, but a compilation of stenographic reports (by a shorthand reporter admitted to the floor for that purpose) published press and containing numerous errors. is That true, although the chief complaint was that partially caught were sentences meaningless. In general, that clearly was reported truly In reported. the case of this all-important speech, spoke Madison n from notes, and the notes in his handwriting are in
the Library of Congress. They parallel speech from end to end, scantily, but leaving no doubt of the fundamental faithfulness the report.” The Madi- son Heritage, 35 N. Y. L.U. Rev. 882, 899-900. Brant goes on to relate how opposed Madison a resolu- tion of against censure societies creating political tur- moil that was behind the Whiskey Id., Rebellion. p. 900. expressed He in .the House the view that opinions are not objects of legislation. “If we advert to the nature of Republican Government, we shall find that the cen- power sorial is in people over the Government, and not in the Government over the people.” Id., p. 900.
The trend of history, as Jefferson noted, has against been the rights of man. He wrote that “The natural progress of things is liberty to yield and government to gain ground.” The formula he prepared for a society where ideas flourished was punishment of the unorthodox
6 7 Writings (Memorial Thomas Jefferson 1903) ed. p. 37. Jefferson of the masses. enlightenment but education 1787: December to Madison on wrote very energetic gov- I a friend to “I am not own, places It always oppressive. ernment. It expense ease, their at indeed more at governors in Massachusetts has The late rebellion people. have done. than I think it should given alarm, more in thirteen States one rebellion Calculate that in a one for each State is but years, course of eleven long country should be so a half. No century and power any degree one. Nor will without In insurrections. prevent government, hands of *58 is heavier than power of the hand where England, years half a dozen without us, there are seldom with heavier, still In where is France, an insurrection. in supposes, Montesquieu despotic, less but than always are two where there and countries, some other insur- ready men to crush thousand or three hundred in course of the three there have been rections, of which every one here, I have been years three than in Massachu- engaged numbers were greater In spilt. deal more blood great and setts, death, is despot the sole nod Turkey, where every day. Compare of are the events insurrections insurgents, of their depredations again the ferocious the almost self- the moderation and order, with say, finally, And whether ours. extinguishment of energy gov- to the by giving preserved is best peace This people. last information to ernment, or legitimate engine most certain, and the the most the whole Educate and inform mass government. it is their see that Enable them to people. 1903) (Memorial pp. 391— ed. Writings Thomas Jefferson 392. preserve peace they
interest will order, preserve requires very high degree them. And it no They of education to convince them of this. are the only preservation liberty.” sure reliance for the of our only philosophy This is the consistent with the First punished Amendment. belief an idea is as it is When we sacrifice today, alien, those ideals and substitute an totalitarian philosophy their stead.8
8 Gellhorn, Rights (1960), commenting American on Dennis v. States, United States, 341 U. S. and Yates v. United 354 U. S. 298, states:
“The interesting. By aftermath of the Yates case is the end of 1956 convictions of Communist under leaders the Smith had Act Many pending numbered 114. appel- of these cases were still in the late courts when the Yates decision was announced in June of 1957. ground another, one On convictions were set aside and new trials granted many were Department of these defendants. The dropped prosecution Justice itself number, of a considerable on ground they properly could not on the convicted basis of significantly all, evidence now available. Most against the cases remaining the nine Yates, Supreme defendants in toas whom the Court had refused to charges, dismiss the were abandoned prosecution they because there was insufficient evidence that had opinion. advocated action as clamor, distinct from After all the expressed after all the peril alarm about the into which the United being plunged by States was misguided fanatics, handful of prosecution felt persuasively itself unable to show that the Commu- *59 spokesmen nist engaged illegality. had in the forbidden incitements to “This should stimulate a sober second look at the surface attrac- programs suppression tions of of Occasionally sup- and coercion. porters programs of falsely these parade are scoundrels who them- upholders as democracy; they selves of good but more often are and genuinely sincere men. worthy Men devoted to ends sometimes unanimity endorse efforts sentiment, to force of they not because consciously espouse authoritarianism, they hope but because thus to assure support maximum for people. the nation and its No matter they how well may be, however, intentioned those efforts themselves graver danger create they a perils sought than overcome. The suppressed regularly are History overestimated. shows in one example after another how excessive been have the fears of earlier “are said, Bismarck arguments,” indifferent “The most is also That bayonets.” of majority has a good when one has the votes. true when one reclaimed may be today by majority vote we lose What and advocacy, dissent, of future time when fear at a over us. cast a shadow nonconformity longer no OF MR. JUSTICE TO APPENDIX OPINION DOUGLAS. time at one have, of 15 States constitutions of revolu- right provision
another, specific made “alter, reform right reserving people to the tion Penn- See government. existing frame of or abolish” Const, Const, of Maryland I, 2; Art. 1873, § of sylvania Const, 1902, of I; Virginia Art. Rights, Dec. 1867, of Const, 2; Arkansas I,Art. 1865, § of 3; Art. Alabama I, § Const, Const, I,Art. 1889, of II, 1; Art. Idaho 1874, § of Const, Const, Kentucky 1858, I, 2;§ Art. Kansas of 2;§ Const, I,Art. 1851, of Rights, 4; Bill 1890, § of of Ohio Const, Const, Tennessee 1857, I, 1; Art. Oregon § of 2;§ Const, 2; 1876, I, § Art. of I, 1; Texas 1870, § of Art. Const, Virginia 7; Art. 1, c. West 1793, of Vermont Const, Const, 3, §3; Wyoming 1872, Art. had, or have have, 24 other States 1. Some I, § Art. New See provision. same forms of the slightly varying Const., 10; Art. Massachusetts Const., I, Pt. Hampshire benefit of that, with shuddered at generations, who menaces itself should This in mere shadows. hindsight, know were we now skepticism the prudent with generation to view the modern induce In of dissent. potentialities the fatal about recurrent alarms the blan- freedom the merits of event, torn between in a world afford of freedom cannot power, lovers dishments totalitarian methods adopting totalitarian superiority moral to sacrifice their once security. Suppression, self-deluding a sense in order to create herd It reinforces life, likely spread. way accepted as economic, moral religious, urge of all toward orthodoxies kinds— Pp. political.” 82-83. as well *60 276
Part the First, Article VII; Connecticut Const., Article First, §2; Jersey New Const., Art. I, ¶2; Delaware Const., Preamble; North Const., Carolina Art. I, 3;§ South Carolina Const., 1, Art. 1;§ Rhode Island Const., Art. I, 1;§ California Const., I,Art. 2;§ Const., Colorado Art. II, 2;§ Florida Const., Dec. of Rights, 2;§ Indiana Const., I,Art. 1;§ Iowa Const., Art. I, 2; Const., § Maine Const, Art. I, 2; Michigan § 1835, Art. I, 2;§ Minne- sota Const., Art. I, 1; Mississippi Const., § 3, 6; Art. § Missouri Const., Art. I, 3;§ Montana Const., Art. Ill, (cid:127) §2; Nevada Const., Art. §2; I, North Dakota Const., I,Art. 2;§ Oklahoma Const., Art. II, 1; South § Dakota Const., VI, Art. 26;§ Const., Utah Art. I, 2. The older § constitutions often add a clause which the roots of shows these provisions in the right of revolution. “The doctrine against non-resistance arbitrary power oppression is absurd, slavish, and good destructive of the happi- ness of mankind,” the New Hampshire Const., Pt. Art. I, 10, recites. The same language may be in Mary- found land Const., Dec. of Art. Rights, 6; Const., Tennessee Art. I, 2.§ provisions
These
have been considered by several state
courts.
It has been held that
general right
people to alter or abolish
government
deprive
does not
state courts from passing on
validity
of constitutional
amendments peacefully passed.
Bain,
Wells v.
75 Pa.
39,
St.
46-49; Koehler
Lange
Hill,
&
v.
Pa. 311, 317-318,
“1. The mode the raising process as the instrumental law, “2. A the powers the to it conveying and body for revision people.
A“3. revolution. through which means peaceful are first
“The two obtained, is alteration people to of the consent displaced be consents existing government which the consent, its gives government revolution. without constitution, in the provided the mode by pursuing either If consent a convention. law call passing a byor remedy existing government given by not so mode —revolution.” is in third people established helplessness mean This does gov- resistance, armed face in the government institutions. existing maintaining duty of has the ernment right mean that But it does Bain, 49. supra, v.Wells people them- to the reserved ultimately of revolution remedies, existing useless, but formal, selves, whatever history of in the This is shown may offer. government have governments Legislatures revolution. our own the right protect themselves. may They as to judge the appropriate means of meeting force against directed them, but as to propriety of the exercise of the ulti- right mate of revolution, there, as John Locke says, “The people shall be judge.” Second Treatise on Civil Gov- ernment, § 240. To forbid the teaching of the propriety of revolution, even where the teacher believes his own lesson, is to hinder the people the free exercise great sovereign right. See Dennis v. States, United U. S. 494, 581-586 (dissenting opinion).
Lincoln's full statement, made in 1848 and already referred to, reads:
“Any people anywhere, being inclined and having the power, have the right to rise up, shake off the existing government, and form a new one that suits them better. This is a most valuable, most—a sacred right right, which hope we and believe, is —a to liberate the world. Nor is right confined to cases which the people whole anof existing gov- ernment, may choose to exercise it. Any portion of such people can, may revolutionize, and make own, their of so much of the teritory as they [sic] inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement. Such minority, was precisely the of case, the tories of our own revolution. It is a quality of revolutions not to go by old lines, or old laws; but to up break both, and make new ones.” I Basler, The Collected Works of Abraham Lincoln (1953), pp. 438-439.
Mr. Justice Brennan, with whom The Chief Justice Douglas and Mr. Justice join, dissenting.
I think that 4 (f) § of the Internal Security Act Congress legislated immunity from prosecution under the first sentence The Act. Smith the of membership clause member- nor of office holding the “Neither is: (f) §of shall any person organization ship subsec- or (a) of subsection a violation se per constitute statute.” criminal any other or of section of this (c) tion my is not sentence by that immunity granted The membership, mere holds, to Court as the restricted, view passive nominal, is membership which is to “active and to extends immunity also The theoretical. the or- to is as purposive membership, purposive of character is ends,” criminal ganization’s today restricts the Court to which membership Act. the Smith of clause membership application sentence first the relation approach In its IAct, the Smith clause membership (f) § question The question. wrong asks think Court “repeal” (f)4 in § meant Congress whether “repeal” The Act. the Smith clause of membership books. the statute from its erasure a statute connotes a criminal under immunity prosecution from grant statute under prosecution suspends merely statute example, For withdrawn. immunity is not as the long so *63 States, United Reina in v. recently decided we when 1956 Act Control the Narcotic 507, that S. 364 U. as state, well under prosecution immunity from legislated remotely did decision laws, our narcotics federal, of either “repeal” the immunity effected that the suggest statutes. federal criminal or the the state legislating a dilemma faced with Congress into of Communists registration compulsory policy represented, This Act. statute Security the Internal of “ventila- policy a Davis, late John W. the words of to be were Communists prohibition.” rather than tion view in order public to themselves expose to forced more effec- with be dealt they present might the menace are Act provisions registration tively. The vitals very of that measure. But compulsory disclosure of membership would compel admission of a crime, provide a link to proof of a crime. Communists then could invoke their constitutional to right silence registration provisions would be wrecked on the rock of the Self-Incrimination Clause of the Fifth Amendment. It is no disparagement of the Congress say to that their deliberations reflect great uncertainty how to resolve the dilemma. Congress wrote the Security Act Internal knowing that the privilege against self-incrimination was a solid barrier against compulsory self-incrimination congressional fiat. The legislative history (f) of 4§ murky but I think clearly there emerges a congressional decision to extend immunity from prosecution any membership a Communist organization in order safeguard against constitutional frustration the policy of disclosure embodied the registration provisions.1 1Senator McCarran, manager the floor of the bill in Senate, spoke of the exposure of Communists as one of “principal objectives” of the Cong. bill. 96 Rec. 14174. The other principal objective was the definition of certain conduct as criminal, being the sense Congress existing provisions preserve security of the Nation inadequate (H. were Rep. R. 2980, No. Cong., 81st Sess., p. 2; 2d Rep. S. No. Cong., 81st 2d Sess., p. 7; Cong. 14174r-14175) Rec. and not effective to combat the threat of subversion from within. pro- The criminal visions of the Security Internal Act are comprehensive. broad and (a) prohibits Section 4 conspiracy perform any act which would substantially contribute to the establishment of a totalitarian dicta- torship under the direction and control foreign power. of a Sec- (b)4 tion makes it government unlawful for a employee without authorization to communicate classified anyone information to whom he believes to be representative a foreign government of a or member of a Communist organization, (c) prohibits receipt § such information. prohibits Section 10 organization using from the mails or broadcasting on radio or television station *64 without designating, by printing on the envelope or announcement as the may case be, that it is “a organization.” Communist A mem-
281 (f) first 4 seems clear purpose § of the sentence of The Congress in Act. In 2 describes the setting § group overthrowing as a bent on in and as is described violence, Government force such a Act, establishing dictatorship the Smith and totalitarian (a) 4 makes it a crime to the United States. Section for com- conspire provide end. Sections 7 pulsory registration organizations of Communist If imposed. members. Penalties for not are registering members Act and required register were under the 1950 if a crime under the 1940 then membership Act, were self-incrimination violation of the Fifth Amendment might required by registration requirements be Plainly 1950 Act. with that problem Congress was dealt in 4 (f). §
The bills Eighty-first Congress2 pro- introduced compulsory registration vided for of members of the Com- munist but afforded Party, immunity registering. no for When the House Committee its reported bill,3 pro- out a organization ber of registered a Communist which is or ordered to register by the Board, Subversive Activities Control who has knowl- edge registration order, or notice of such or cannot fail to disclose membership seeking his accepting employment by when he is or any facility. States or United at defense It is also unlawful for such person employment States, a to hold under the United or in facility organization. defense if he member of is a a Communist-action (a). person apply passport. (a). Such a cannot use §5 § existing dealing The also Act modified several statutes with subver- espionage expand coverage. sives and in order to their These exten- provisions thought Congress regarded sive criminal belie the gun weapons. Smith Act as the main in the arsenal of antisubversive many being allusions to the fact that were Communists more coming in their provisions covert activities so as to avoid within the major Smith Act make it clear that that Act not to importance campaign against Communists. domestic 2311, Sess.; Cong., 9490, Cong., 2 S. 81st 2d H. R. 81st 2d Sess. 9490, Cong., Sess.; R. Rep. H. 81st 2d see H. R. No. 81st Cong., Sess., p. 2d 8.
vision was included in receipt which forbade evidence of registration the fact of under Internal Act. Security the bill the floor, Congressman When reached Celler pointed out that immunity provision was constitu- tionally In only insufficient. the first place, bill provided that registration the fact of Act under the should not in be received in against registrant prose- evidence cutions under the Act. Congressman pointed Celler out there were other criminal statutes, including the Act, Smith immunity which no granted.4 was He secondly pointed out that immunity to be constitu- tionally protective must be and he complete; discussed Hitchcock, Counselman v. 142 U. S. in support of that thesis.5 During these in response debates and to the challenge by Congressman made Celler, manager bill, Congressman Wood, offered an amendment ex- tending protection the same against prosecutions any “for alleged violation of any other criminal statute.”6 It was adopted without discussion passed and the bill the House.
At that juncture it seems obvious that restricting the immunity to use of the fact registration in any criminal prosecution did not satisfy the constitutional require- ments. Such a immunity limited granted by statute in Hitchcock, Counselman v. supra. Yet as the Court stated in that case, p. 564:
“This, of course, protected him against the use of his testimony against him or his property prosecution against him or his property, any crim- inal proceeding, a court of the United States. But it had only that effect. It could not, and not, would prevent the use of his testimony to search out other testimony to be used against evidence him or his 4 Cong. Reo. 13739. 5Id., 13740.
6Id., 13761. It in such court. proceeding in a criminal
property, wit- and the use of obtaining not prevent could should be attributable and evidence which nesses under com- might give he directly testimony to the convicted, when might .and on which he pulsion, he answer, if had refused to could otherwise, and he possibly have been convicted.” *66 out. The reported the Senate bill7 was Meanwhile in late Davis had stated a letter to the Senate John W. a compulsory registration might that make Committee8 “involuntarily member incriminate himself.” The Senate nor accordingly provided holding bill that neither office in membership the Communist should constitute and it provisions bill; a violation of certain also the fact be re- provided registration that should not against registrant prosecutions in evidence in ceived in provisions. Kilgore minority a under those Senator Congressman that report9 point made the same Celler immunity had made the House —that this provision did not even avoid self-incrimination relation purport membership to the clause of the Smith Act and did not immunity which Counselman provide v. complete Hitchcock, supra, held essential. to the same effect when the bill spoke Lehman Senator 10
reached floor: “ 'In made the Senator support of statement from simply Illinois would real Communists to register, register, and could not be forced to fail be control and would outside law-enforce- ment officials, it not a fact there would every a why regis- reason real should Sess, 4037, Cong., S. 81st 2d 8 Rep. 1358, Cong., Sess,, pp, No. 81st 1st S. 43-44. 9 Rep. 2369, 2, Sess,, Cong., S. Pt. No. 81st 2d pp. 12-13. 96 Cong. Rec.
ter —because if he did register, would not he make himself liable to incrimination under the Smith Act?’ Douglas.
“Mr. ‘Certainly.’ “Mr. Lehman. virtually pleading ‘So he would be guilty penal offense; would he not?’ ” Douglas. “Mr. ‘Yes; the real leaders be.’ would Senator Lehman day stated on another of the debate:11 dyed-in-the-wool
“What Communist will run to the registration nearest office to list himself as such himself to the expose penalties contained Mundt-Ferguson bill? Obviously, if did, he he would lose all his effectiveness as a Communist, besides subjecting himself penalties to the forth in set bill. He would expose also himself to the penalties set forth other laws, such as the Smith Act, under which the 11 top Communist leaders were recently In convicted. fact, registration would constitute self- if incrimination, not under the terms of this law, then *67 under the terms of the Smith Act. Obviously, the Communists would register.” 12 Senator Humphrey voiced the objection: same “. . . his registration would equivalent to testi- mony; and under the interpretation of very prom- inent attorneys,13 it could be that he could be prosecuted under the Smith Act.” The answers to these objections were wide of the mark. Senator McCarran said that the registrant was immu-
11Id,., 14190.
12Id., 14500. 13This apparently reference towas Hughes, Charles Evans Jr. and John Id., W. Davis. 14500. The statement of Mr. Davis is referred 8, supra. to in note Hughes That of Mr. can Hearings be found in H. on R. 5852, Senate Committee on the Judiciary, Cong., 80th 2d Sess. 415-420.
285 The under 4 of the bill.14 prosecutions § from nized recognized. Senator the Act was not relevancy Smith likewise did not meet the Mundt and Senator Ferguson held irrele- membership that point. They noted15 of Dennis v. prosecution Act in the to the Smith vant States, fact that that case supra, United overlooking the practice conspiracy but a membership involved not dogma. Communist in respect in was made this change
But no the bill important changes passed before it the Senate. place 4 ones that are critical here —took (f) § —the in- contemporary statement of the No Conferences.16 (f) legislative of the sweep § tended revised enough history I to indicate record. But have set out fear that the immu- clearly the motivation was of the bill was not nity granted under the earlier versions constitutionally compel registration, since it sufficient to opinion “In the of the Committee on the chairman Judi ciary, provision protect leans over backward to Communists against self-incrimination; many safeguards but it is one of the writ Judiciary complete ten into the bill Committee to assure constitutionality Id., id., of the measure.” 14175. See also 14443. Long. hearing impression, I “Mr. was under the from Sena yesterday, tor from New York that he said that under [Sen. Lehman] previous belong organization statute it to an was unlawful advocated overthrow of United States Government force .... Ferguson. Judge charge Medina, in his
“Mr. it not true Is jury Communists, to the in the trial of the 11 told them that mere membership in the was not to warrant sufficient convicting jury them under the Smith Act? Precisely. “Mr. Mundt. *68 Ferguson. apply “Mr. that it to that law. So could conceivably impres- apply. It if the could not Even “Mr. Mundt. correct, it junior sion from Louisiana had were Senator Id., interpretation would still be an act.” 14235. incorrect 16 Rep. Cong., Sess., p. 2d R. 81st 49. H. Conf. No. 286 membership under prosecutions extend to
did not Act. clause of the Smith Com- from the Conference came back the bill
When 4 its new (f) Multer referred to Congressman § mittee most “vitiate one of the it would predicted form and made reply was the Smith law.”17 No important parts of was made to only And brief reference his comments. “There is said,18 Kefauver 4 in the Senator (f) § Senate. a provides person that when nothing in the bill which against in evidence registers that fact shall not be used But that him in connection with the Smith Act.”19 the Sen- problem statement is irrelevant to our because had been did not realize that the bill apparently ator any the words “or other amended Conference to include Kilgore stated that the Con- criminal statute.” Senator approved by bill differed from the one the Judi- ference his ciary dissent, Committee since nullified over challenged Act.20 No the statement. one Smith legislative history tolerably From this it seems clear purpose (f) protect registrants one was to from § prosecution under the clause membership of the Smith Act.
The Court the first sentence holds, however, 4 (f) simply charged § is “a mandate to the courts with (a) (c) the construction of . any subsections ‘or . . other criminal statute’ that neither those named crim- two inal provisions nor other shall be construed so ” , . ‘membership per make . If se violation.’ immunity phraseology only extended were se,” “membership per might there support argu- for the immunity ment that the granted (f) only extends by § 17 Cong. Rec. 15289. 18 Id., 15198.
19 Ibid.
20 Id., 15192. *69 membership, excluding type to nominal of active But membership we have here. the statute does say “membership per provides se.” It either “[n] holding any of office nor membership Communist organization shall per constitute se a violation of subsec- (a) tion (c) any subsection of this section or of other criminal statute.” The kind of im- membership given munity is not may restricted. It nominal, short-term, long-term, dues-paying, non-dues-paying, inactive, or active membership. Every type membership of is included. Congress What is is saying type that no membership shall (that violate alone or itself is to se) say, per any criminal Congress statute. When said that membership “shall not constitute se” per a viola- tion of criminal statute, meant that additional con- duct besides membership, whatever its nature, necessary to constitute a Only by violation. transposing per se (f)4 and making § it modify “membership” can the Court’s argument plausible. be made That entails a sub- stantial revision of the Act and a drastic dilution of rights of immunity which granted have been by it.
If the Court is correct its view, the constitutionality registration provisions of the 1950 Act are called into question. True, today’s decision in America v. Subversive Board, ante, Activities Control p. puts off to day another the constitutionality of the registration provisions in their conflict with the Fifth Amendment; I have my noted dissent as to provision registration requirements that designated officials of the Party must complete, sign, and file Party’s regis- tration statement. But if “active membership” remains a crime under the Smith Act, there would abe serious question whether any Communist —active or nominal— could constitutionally be compelled to register under the 1950 Act. For it urged could be that the act registering complete the chain might link that supply
would one It is no Act. him under the Smith against evidence membership would contention that mere answer to that in Blau v. United As we said *70 support not a conviction. States, 159, 340 S. 161: U. by sup- themselves would such admissions
“Whether criminal is imma- a conviction under a statute port questions grand Answers to the asked terial. a link in chain of evi- have furnished jury would petitioner in a for viola- prosecution dence needed Act. violate) to the Smith (or conspiracy tion of clearly this have established Prior decisions of Court circumstances, gives such the Constitution under remaining silent. The privilege a witness compel petitioner below to to attempt the courts Fifth as it testify runs counter to the Amendment interpreted beginning.” has been from the had principle This been an established one ever since Hitchcock, supra, Counselman v. was decided. registration, provisions of the 1950 Act were the very heart law. Disclosure of who the Commu- provision nists were was from which all other controls stemmed. As the Report stated,21 registration Senate requirement provision” is the “central Act, pur- pose being “(a) expose to the Communist movement and protect public against unwitting innocent and col- it; (b) expose, protect laboration with public certain acts are against, declared unlawful.” A reading (f) fair and literal of 4 can save the § 1950 against Act this Fifth Amendment objection. By read- ing (f) provide being a member of the § Com- per munist shall “constitute se” crime, immu- nity prosecution from under the membership clause of the Rep. Cong., Sess., p.
21 S. No. 81st 2d 4. harmony with full And that Act is effected. Smith- “membership” than more something make purpose can be something more That for conviction. necessary 1950 Act was After the activity. kind of unlawful some longer was no activity membership without other passed, to me That seems prosecutions. Act for Smith sufficient That conclusion (f). only way § fair to read to be the indictment. a dismissal of necessarily requires