*1 et Levitt al. State Indiana Rehearing 30,611. January 25, 1965. denied Filed [No. March 1965.] *2 Dillon, Attorney General, John J. Dorn, Carl E. Van Attorney General, Assistant Hoadley, Thomas A. Prosecuting Attorney, Circuit, Tenth Judicial of coun- sel, appellant. for
John Droege, Indianapolis, Wood B. and James Ralph Fuchs, and counsel, Bloomington, F. for In- Union, diana Civil Liberties Amicus Curiae. B. Boudin, Boudin,
Leonard Rabinowitz & of New City Taylor Louisville, Kentucky, York and T. Daniel Boudin, Standard, and Leonard B. Michael B. and counsel, City, appellees. York New for C. J. This a criminal com- action
Arterburn, by grand jury menced appellees indictment alleged violation of 5 Section of the Indiana Anti- Statute, being Communism Acts Ch.. §5, p. 648, (1956 found in as Burns’ Ind. Stat. Anno. Repl.) §10-5205. statute, wording indictment, following
alleged appellees May 2,1963: on then for the "... did and there assemble advocating teaching doctrine that government of and of the State the United States violence, by force, of Indiana should be overthrown voluntarily participat- means, unlawful instigation, ing presence, therein their aid and contrary peace dignity of the State the . . . of Indiana.” appellees quash indictment, filed a motion to based theory question on the the statute in invalid, primarily grounds on the Indiana stat- that the superseded ute had legislation, namely, been federal the Smith Act of Stat. amended in U. S. C. and that the Indiana statute violated speech assembly. defendants’ freedom of This issue requiring appellees’ was narrowed motion alleged State to state whether the acts “related to *3 government govern- both of the and United States the of merely ment the State of one related to of governments, so, the said if to and which one?”
The proof State answered that would be confined to relating acts to the gov- State of Indiana and not the ernment of the United of States America. quash
The trial court sustained motion the and found that the statute was unconstitutional and that objection the by could not avoided new indictment discharged and judgment the From defendants. this appeals. the State principal argument
The major question pre- and the by sented appeal is whether or not the Federal government has, by Act, preempted the Smith the en- tire area of applicable criminal only sedition not the government Federal governments. but also to the state subsidiary question A government is: If the Federal attempted has also to cover this entire area of sedi- governments,
tión and the violent overthrow under has overreached its constitutional limitations original provides: the scheme powers delegated “The not prohibited by Constitution,, nor it to respectively or reserved to are the States X people.” Amend. Const. U. S. disregard basically Looking question here at the ing preemption, government must every issue right protec- self-preservation and
have the against advocates, tion foments sedition which gov- cultivates the violent overthrow gov- Reviewing history system ernment. of our ernment, many Fed- there are conclude the reasons to in- repository eral of this sole particularly power states, herent to the exclusion powers in view of reserved to the states Raley (1954), Ohio Tenth v. Amendment. State §12, App. 75, 295; Jur., Treason, E. 2d 136 N. Am. p. 801. question assembly speech inciden of free only question. Free
tal to the decision of the main
speech yield assembly instances must some important right self-preservation more government against vio overthrow its lence. argument portions re main on both sides Supreme
volve
certain
of the United States
around
cases
begin
interpretation
given
Court.
with
These
to be
Pennsylvania
the case
Commonwealth
Nelson
497, 76
477,100
350 U.
L. Ed.
S.
S.
Ct.
*4
opinion
This
was written
Chief Justice Warren
Pennsylva-
Supreme
on certiorari
from
the
Court
dissenting.
nia,
JJ.,
Burton,
Reed,
with
Minton and
prosecution
brought,
upon that
based
case
In
Pennsylvania
statute in
with
the State
similar to that
con-
Indiana.
It was
which
concerned here in
we are
here,
Act
there,
that
tended
(Smith
18 U. S. C.
as amended in
Act of
knowing advocacy
§2385)
prohibits
of the
the United
States
overthrow
Pennsylvania
supersedes
violence,
force or
the similar
right of
pointed
Sedition
case
out
Act. That
disputed when
the State
enforce
is not
sedition laws
occupied
such
Federal
has not
either
jurisdiction
Fed-
field
specifically
its
has
limited
opinion
eral
cases. The
with
statement:
concludes
Congress
occupied the
“Since we find that
has
legislation,
field
parallel
exclusion of
state
that the
interest
dominant
of the Federal Govern-
intervention,
ment
state
precludes
administration of state
would conflict with
Acts
operation of
plan,
the
that
the federal
we are convinced
Supreme
the decision
of Penn-
Court
sylvania
is unassailable.” 350 U. S.
Ct.
S.
484,
several States under laws thereof.” plain congressional simple, This is a declaration .in- preemption tentions to avoid entire field Con- gress. *5 majority opinion interesting note, passes
It to the is specific statutory expression lightly plain and over the pro- congressional footnote, and then intent in a congressional occupy look for intent to the ceeds to the governments by entire exclusion of the field to the state quoting public papers from and addresses Frank- the Roosevelt, War President exhorted lin D. wherein the in- people to the be attentive subversive American to urging during war, over all them to turn fluences FBI in information nature to the subversive government against protecting sabo- interest opinion (the expres- majority tage. The dicta in the government) made division sions the executive legisla- determining the intentions for basis relevancy government. fail see its We tive branch reasoning. by are not convinced persuasive Supreme opinion A far more Court Uphaus Wyman that of a case which followed. In 1040, 3 L. 360 U. Ed. 2d S. 79 S. Ct. case, supra, opinion was in an Nelson reviewed Clark, Warren, J., Bren- written Mr. Justice with C. dissenting. ques- Douglas, JJ., nan, There a Black and of the refusal of a witness tion arose as a result Hampshire leg- produce for certain documents the New investigating subversive activities committee islative the Nelson case refined case in the state. That stated: rejects "... notion The basis Nelson thus stripped right pro- that the States opinion tect . . . The made clear themselves. proceed prosecutions a State could with sedi- against legiti- itself; it can tion the State investigate mately area a fortiori.” follows 1044, 3 Ed. 2d 1096. L. 360 U. S. 79 S. Ct. dissenting opinion appear us that would thus
It in vindicated to some extent Nelson case was pointed in the Uphaus out that It should case. only Nelson case the Court concerned with sedition alleged against state, the United not the prose- us, while in the before case state limited its only against cution to activites State Indiana.
Preemption legislation the Federal totally excludes a such logical
field has no basis under the constitution ally-reserved powers of the state unless there is operation legis actual an such conflict lation, appears there none in this case. *6 Company Butter (1942), v. Patterson 315 Cloverleaf U. 62 S. Ct. L. S. 86 Ed. 754. As stated Marshall, Chief Justice the conflict between state legislation and Federal must be clear and direct in order preempt for the Federal the field Virginia the exclusion of the state. Cohens (6 Wheat.) 19 264, 443, 5 U. S. 300. L. Ed. conclude, therefore,
We must that the decisions of the Supreme Court do hold not that doc preemption applicable trine is to the state’s attempt protect against itself subversive ac tivities directed towards the violent overthrow government. of the state This is also the conclusion of subject.1 most on the law writers questions infringement
Other relate raised to the upon right speech. of freedom of may We observe right, constitutional, no fundamental oth
erwise, society absolute is and unlimited in this liberty personal life ours —not even —if neighbors. we are to live our with We are restrained highways liberty on the on streets and in our police power daily in action. rela intervenes tions with others to eliminate friction order that the (1957) Note, L. Rev. 43 A.B.A.J. 131 Case 28 Geo. Wash. (1959) (1960) Note, Note, 457 So. Cal. 38 Texas L. Rev. 93 Note, (1960) (1959) L. Rev 330 73 Harv. L. Rev. injure may another member person actions of one society in a society. freedom and unlimited Absolute gov- anarchy. No only the coin the reverse side is possible under the of law and order would ernment cannot, Speech in an freedoms. of unlimited doctrine organized society, totally unrestrained. to the curiae this case refers
The brief amicus among college university organization “freedom of right all and their hear shades students ” speakers, opinion expressed . . . outside activity by the Such in itself is not condemned legislation question. only per- It when such here is advocating teach- for the sons “assemble ing ... the State doctrine that the Government be overthrown force vio- should [or] only It law violated. when such lence” that meetings intentionally knowingly ve- are used subterfuge advocating the violent overthrow hicle or unlawful. No teacher becomes right phrase hide behind “academic free- has.a assembly to dom” and use a classroom advocate the vio- government, of a in violation of overthrow his lent parents and citizens of the sacred to the state trust right pay A to take him. has the inherent *7 against any activity, self-preservation in such measures homes, may place the in the take wherever it —in square. public or schools on the activity has taken do not intimate that such We college campus place in case. No evidence is on a this point one of us, was in the briefs before but the raised duty dispose to of it. and it is our considering Court, Supreme in The. United States point. disposed Justice Act, Chief Smith this the Court, speaking for Vinson, the said: negates language the Act very Smith “The petitioners have interpretation would advocacy, impose that directed at on Act. It us judge properly Thus, the trial not discussion. if charged jury they convict could not that petitioners ‘no more than they did found that teach pursue peaceful discussions studies and ing advocacy fur He in the realm of ideas.’ it was charged conduct not unlawful ‘to ther in college university a course an American philosophical forth in explaining set theories placed in evidence.’ which have been the books statutory charge accord is in strict with Such meaning placed language, and illustrates Congress eradi did not intend to on those words. political theories, free discussion cate the rights Americans destroy traditional gov fear of without and evaluate ideas discuss Congress was con Rather sanction. ernmental very activity kind of in which cerned with petitioners engaged.” these showed evidence (1951), 341 U. S. 71 S. Dennis v. United Ed. 1137. 857, 95 L. Ct. pres- there is “no clear and contended next
It is gov- danger” violence of the of the overthrow ent and that it would State ernment anyone up would “blow to think “ridiculous” concerted scheme attack also capítol” without state government. the Federal suggest may respect
Incidentally, we legislative amply action this case is wisdom govern- justified by incidents.2 Local historical state by insurrection without direct overthrown were ments during upon Federal the Civil attacks accurately political when strife one can foresee War. No Knights organization During as the an known the Civil War Liberty, conspired Circle, Sons of overthrow arranging the Golden organization Indiana. The the state an commanders when invasion of state with the Confederate organi- of some of the the overthrow was zation’s leaders the arrest thwarted guns and ammunition the confiscation being Liberty. shipped into the One use of the Sons applied Supreme of Court leaders the arrested to the United States Milligan corpus for a of habeas Ex Parte writ (4 Wall) 2,18 71 U.S. L.Ed. 281. *8 284 legislature a
may point of That has violence. reach by duty prepare a borne out eventualities is growth Germany. ob- Hitler It of Nazism under is legislation wait until the time such cannot vious that strong powers are so that arrives when the subversive legislation or enforced. We cannot be enacted such leg- upon of world events had speculate the turn such effectively Germany in the enforced islation been early days of Nazism. danger” of “imminent so-called doctrine
Just how the relevancy is difficult to discern. The here has apply Supreme did Court not a test that Engel danger” v. Vitale present existed in: a “clear and 8 L. 2d (1962), 82 S. Ct. Ed. 370 U. S. L. R. A. 2d investigation pseudo doctrine us Our convinces constitutionality. place as a test it has no can be for the “idea”
most that said is that applicable sufficiency principle to sustain conviction under the Sub evidence is borne out the statement in Den versive Acts. This supra: v. nis United “ reasoning . . . ‘clear Its was as follows: present danger’ applied to utterance test was merely question itself in Schenck because the admittedly sufficiency an under one of evidence constitutional statute.” supported position in this are further We the state States, supra, in Dennis v. United ment the suc probability required or the of success not cess to cre danger present clear ate a overthrow of the government, justifying upon speech. restrictions free urged legislature
It have is next could purpose” “the achieved same basic “less drastic thereby infringed upon means” and have free speech Tucker; to the extent. Shelton v. v. same Carr Young (1960), 364 U. S. 81 S. L. 2d Ct. Ed. 231; Aptheker Secretary State 378 U. S. *9 1659,12 84 S. Ct. L. Ed. 2d argument duty
The answer to such is that it is not the judiciary the speculate upon of or the courts to un- how legislation may appear wise even “ridiculous” to legislative courts, body power the if the has the and authority under Constitution to enact such laws. validity To test the constitutional of a a law standard might used, that “less means” have drastic been in our legislative opinion assumption of is a blatant function. government legislature Under our scheme of is given leeway selecting type and broad discretion legislation legis- objective. it thinks for best government respon- lative is and more branch closer people supposed to the than courts. It is to bet- sive people, through ter reflect its desires investigative pol- powers it is better able determine objectives For followed and attained. icies to be upon field us to intrude would be violation substituting judgment our our oath and would result legislature. for
Judges higher courts, particularly, should be ever they repository are conscious that not the sole of wis- good judgment. goodly, major dom A por- if not a tion, ability leg- of such talent and resides in both the islative and executive branches they given
under the Constitution are the functions making suggested policy. determinations stand- (“less means”) ards drastic the constitutional legislation measurement of turns over to the courts judgment discretion, which, by and wisdom Constitu- tion, reposed legislative govern- with the branch of Although always agree ment. we on the Court cannot legislation, with the wisdom of we are to and it sworn right legislative duty uphold branch in its functions. supersession Finally (preemption) if we observe approved case, we feel the results would be were argument During absurd, if not chaotic. it was stated Attorney that the United States General issued an order recently attorneys to all United district that no prosecutions should be initiated or carried out under Passing by ques- Act until further notice. the Smith right any prosecuting pick official to tion of the enforced, choose what laws shall shall not be the factual we are confronted with situation that helpless protect would be left several states them- they preemp- if are excluded selves the doctrine of mercy They be left to the and whim of the tion. would *10 Attorney pre- The United General. rationale States emption application to this case would therefore and its startling nothing one that more result result than Attorney hold United General —would man —the States sway protective practically measure over the dictatorial government. say possible To that of each state and- life against protect government may itself sub- a state Attorney versive activities that whim, or not he may, whether at determine General his something beyond the states, protect is desires to In of the Constitution. wildest dreams of framers expanding fed- involving other a confrontation cases expressed Thomas Jef- power, apprehension eral quoted: been ferson has great object my “The fear the Federal is Judiciary. acting body, gravity, That like ever foot, step by alarming advance, and in with noiseless gaining ground step, holding what gains, gov engulfing insiduously the [State] is jaws into them.” of that ernments feeds Spencer (1821)]. Roane Jefferson to [Thomas Supp. (1964),
Dombrowski v. F. 227 Pfister ' argued language ques- It next is that the of the Act in vague particularly tion indefinite, because it has required “knowledge no element or intent” forth set language therein. (Sec. 5) Part of the of the statute says: “ person every his voluntarily . . . and participating presence, therein instigation, aid or shall guilty felony. (Our italics) of a voluntary participation,
A course, knowledge involves Nevertheless, question and intent. we feel fully this disposed of in the case Dennis v. United su- pra, point where the same was raised. The Court said: “ . . . The structure and of the statute demand the inclusion of intent an element of Congress
the crime. was concerned with those who organize advocate for the overthrow of the Government.” statutory held interpretation Court re- quired the proved essential element intent be “nor does fact investigation there must be an of a interpretation state of mind under afford rejection meaning.” of that basis statute, opinion, is not defective on the ground specifically it fails prohibited state the guilty
act must be done with knowledge and in- tent. Such condition is to be inferred and it is vague therefore not and uncertain respect. in that See Scales United also: 367 U. S. S. Ct. L. Ed. 2d rehearing den. 366 *11 978,
U. S.
81 S. Ct.
not from that to the United severable States. disjunctive sense, The word “or” is indicat- used in the ing parts it con- that various the sentence Statutes, E., separately. 26 I. L. nects are to be taken Dictonary 328; §120, p. Wagnall’s, Funk Standard & (1956 ed.). 827 giv-
It well construction must settled that such language 10 of the en the above. Section the statute provides: Act further any any “If . . act . clause of shall reason be held invalid or unconstitutional competent jurisdiction not shall court same validity of
affect the this Act....” duty uphold It is the the Court the Acts legislature following possible by if reasonable rules of which will result.
construction lead to Comm, Bldg. (1958), Book v. State et al. Office 273; 149 N. 238 Ind. E. 2d Blue ex v. State (1934), rel. 206 Brown Ind. E. N. 334; L. State v. Dearth A. R. 201 Ind. N. E. 489. opinion, the Act
In is severable por- as to that applicable tion to the United States Government. judgment sustaining and order of the trial court quash discharging the motion to the indictment and appellees and the trial is reversed court is directed to quash; pro- motion to and for overrule the further ceedings opinion. consistent with this
Myers JJ., Achor, concur.
Landis, J., participating.
Jackson, J., opinion. dissents with
Dissent disagreement only Jackson, am in with not J. I *12 language majority opin- conclusions but the of the ion and dissent thereto.
I pre- think that in order to determine the issues sented in the case at bar the statute under which this prosecution was initiated should be set out. The stat- being 1951, 226, seq. ute of §1, Acts ch. et as found Replacement to 10-5209 Burns’ 1956 §§10-5201 reads as follows: policy “§10-5201. Public from —Protection hereby pub- Communism. —It is declared be to policy lic of the state of Indiana and of act this protect peace, [§§10-5201 10-5209] — tranquility, property rights domestic and in- of
terests thereof people the state Indiana and the from ideology tenets of the known as as Communism the same presently is known and today. exists in world [Acts ch. §1, 646] P- policy “10-5202. Public —Extermination Communism. —It is further declared to be the public policy Indiana, of the state of and of this promote act [§§10-5201 10-5209] and to — enforce the Constitution of the United States of America, Indiana, constitution pursuant passed guarantee- all and ing laws thereto all defining rights free Americans and, end, Communism to that exterminate communists, teachings any or all of the same. 226, §2, ch-. p. [Acts 646.] purpose Definitions. —For the “10-5208. of this 10-5209], act nism but term Commu- [§§10-5201— herein include, or communist as defined shall politi- limited shall to the Communist party presently as it cal party exists. Communist hereby act is defined engages organization advocates, an which or abets, advises, teaches, a purpose or has which engage advocate, abet, advise, teach, in or or overthrow, destroy alter, activities intended or to assist or overthrow, destruction, in the or gov- alteration of the constitutional ernment form of the the United or of the State any political thereof,-by or of subdivision revolution, [Acts force or violence. ch. §3, p. 646.] Membership party or “10-5204. in Communist organization Advocating similar over- unlawful — (A) throw unlawful for It shall unlawful. — person any member of to be a group, party or- any party, Communist ganization manner advocates overthrow, of the consti- destruction or alteration tutional form of the United any political *13 Indiana, or of the or state of violence, force, by revolution, engages thereof subdivision sedition, any or which in un-American activities. by of (B) any word person It shall be unlawful for writing advocate, teach mouth or or advise overthrowing duty, necessity, or propriety of or overturning the of any political of of subdivi- or sion thereof edit, the state Indiana or violence; publish, by print, force or or circulate, sell, knowlingly distribute issue or book, publicly any paper, or document or display any pur- printed in form for the or matter written pose advising teaching advocating, or doc- of States, government of United trine Indiana, by of the of be overthrown or shall 1951, force, any unlawful [Acts or means. violence p. §4, ch. 646.] p. 646.] be lawful, and Indiana, therein advocating or ernment of the United [2] “10-5205. Unlawful any guilty of a or more unlawful by should or his every person voluntarily participating persons teaching presence, felony. be means, such an overthrown assemble for the assembly. the doctrine [Acts aid or or of by —Whenever instigation, assembly is un- force, ch. the state violence shall gov- two §5, of Liability proprietor of a of editor or “10-5206. newspaper Defense.—Every or or editor book — newspaper book, proprietor of a or circular incorporated manager partnership a every or book, newspaper, or by circu- which a association chargeable publication issued, with the lar, of or defendant newspaper book, any in matter contained such every prosecution therefor, in But circular. may mat- show his defense complained published ter without was his knowledge against wishes, by or fault and his another authority who had from him make no publication by act disavowed whose §6, p. him as soon as known. ch. [Acts 646.] employees “10-5207. Public be officers or Discharge.—No person hold shall communists — public board, bureau, employed by department, any or office agency commission, institution or any political the state of or sub- its divisions, party who is member of the Communist any participating or of the activities unlawful this declared act or has been con- any provisions of victed under section any person act of this [§10-5204] now em- ployed by any department, board, bureau, com- agency mission, or institution the state any political subdivisions, Indiana or member who is party of the Communist or who is en- gaged any of the activities declared unlawful discharged. act forthwith this shall Evi- satisfactory department, dence head such board, agency institution or of the state Indiana any political subdivisions its shall be suf- employ any person ficient for refusal or cause discharge employee for the reasons set person Any discharged forth section. *14 employment provisions refused under the of this right judicial section shall have the review provided by chapter 1947, 365 of the Acts being concerning pro- an act entitled ‘An Act ceedings, orders and determinations agencies judicial and and thereof’ officers review approved 14, March 1947 [§§63-3001 63-3030]. — p. 646; §1, 1951, 226, §7, 1953, 93, ch. ch. [Acts p. 274. violating any and more rendered or trust and shall be State Prison for not §8, p. 646; 1953, [§10-5205] “10-5208. shall, than incapable upon of this act shall three Penalty conviction, ch. [3] 93, §2, p. violation. — for less holding any years. imprisoned provisions than 274.] Acts disenfranchised guilty one office of of section 5 [1] Any person the Indiana of a year ch. felony profit 226, and nor rights “10-5209. Constitutional unaffected. —No provision any section of this act [§§10-5201 prohibit shall be construed to —10-5209] right protected by constitution the federal or the including constitution of the state of but rights speech, limited of freedom of freedom press religion. and freedom of [Acts ” ch. §9, p.646.] reading clearly A and of the above statute indis putably unconstitutionally vague. to be A shows statute, invoking police powers of the State in or security provide public safety, der for internal impinging upon thereby constitutionally pro speech assembly tected of free areas so must clear ly proscribed specifically .and define the acts as to leave no the nature doubts offense and the charge Lowry met to be defendant. Herndon v. (1937), 301 242. U.S. judgment trial court is correct affirmed.
same should be
Reported in
Snyder Snyder. Rehearing April 29, 19,984. 1964. Denied Filed [No. March Transfer Denied 1965.] June