183 F.2d 201 | 2d Cir. | 1950
Lead Opinion
The defendants Dennis and others appeal from a judgment of conviction upon an indictment for violation of Section 3 of the “Smith Act,”
Logically the first issue, and incidentally the most important, is whether the evidence was sufficient to support the jury’s verdict that the defendants were guilty of the crime charged in the indictment. There was abundant evidence, if believed, to show that they were all engaged in an .extensive concerted action to teach what indeed they do ■ not disavow — the doctrines of Marxism-Leninism. These doctrines were set forth in many pamphlets put in evidence at the trial, the upshot of which is — indeed at; honest jury could scarcely have found otherwise — that capitalism inescapably rests upon, and must perpetuate, the oppression of those who do not own the means of production; that to it in time there must and will succeed a “classless” society, which will finally make unnecessary most of the paraphernalia of government; but that there must be an intermediate and transitional period of the “dictatorship, of the proletariat,” which can be established only by the violent overthrow of any existing government, if that be capitalistic. No entrenched bourgeoisie, having everything to lose and nothing to gain by the abolition of capitalism, by which alone it can continue to enjoy its privileged position, will ever permit itself to be superseded by the means which it may have itself provided for constitutional change: e. g., by the ballot. No matter how solemnly it may profess its readiness to abide the result, and no matter how honestly and literally the accredited processes of amendment may in fact be followed, it is absurd to expect that a bourgeoisie will yield; and indeed to rely upon such a possibility is to range oneself among the enemies of Marxist-Leninist principles. Therefore the transition period involves the use of “force and violence,” temporary it is true, but inescapable; and, although it is impossible to predict when a propitious occasion will arise, one certainly will arise: as, for example, by financial crisis or other internal division. When the time comes the proletariat will find it necessary to establish its “dictatorship” by violence.
The defendants protest against this interpretation of their teaching and advocacy. They say that the use of “force and violence” is no part of their program, except as it may become necessary after the proletariat has succeeded in securing power by constitutional processes. Thereafter, being itself the lawful government, it will of course resist any attempt of the ousted bourgeoisie to regain its position; it will meet force with force as all governments may, and must. If the defendants had in fact so confined their teaching and advocacy, the First Amendment would indubitably protect them, for its protects all utterances, individual or concerted, seeking constitutional changes, however revolutionary, by the processes which the Constitution provides. Any amendment to the Constitution passed in conformity with Article V is as valid as though it had been originally incorporated in it; the only exception being that no state shall be denied “its equal Suffrage in the Senate.” It is unnecessary to quote in detail the many passages in the pamphlets and books, published and disseminated by the defendants, which flatly contradict their declarations that they mean to confine the use of “force or violence” to the protection of political power, once lawfully obtained. The prosecution proved this part of its case quite independently of the testimony of its witnesses, though the jury might have relied upon that, had it stood alone. The sufficiency of the evidence therefore comes down to whether it is a crime to form a conspiracy to advocate or teach the duty and necessity of overthrowing the govern
This being true, three questions arise: (1) whether the Act is constitutional as the judge construed it, (2) whether his construction was right, and (3) whether the evidence was admissible under the indictment. To the last of these we shall devote no time, for it is patent on the merest inspection that the indictment is sufficient; even had it not been, any variances would have been harmless error. Fed. Rules Crim.Proc. rule 52(a), 18 U.S.C.A. Coming then to the first point, although the interest which the Amendment was designed to protect — especially as regards matters political — does not presuppose that utterances, divergent from current official opinion, are more likely to be true than that opinion, it does presuppose that official opinion may be wrong, and that one way — and perhaps the best way— to correct or supplement it, is complete freedom of criticism and protest. This may convince the officials themselves, and in any event it may rouse up a body of contrary opinion to which they will yield, or which will displace them. Thus, the interest rests upon a skepticism as to all political orthodoxy, upon a belief that there are no impregnable political absolutes, and that a flux of tentative doctrines is preferable to any authoritative creed. It rests upon a premise as yet unproved, and perhaps incompatible with men’s impatience of a suspended judgment when the stakes are high. However, it concerns beliefs alone, not actions, except in so far as a change of belief is a condition upon action.
Nobody doubts that, when the leader of a mob already ripe for riot gives the word to start, his utterance is not protected by the Amendment. It is not difficult to deal with such situations; doubt arises only when the utterance is at once an effort to 'affect the hearers’ beliefs and a call upon them to act when they have been convinced. As a new question it might have been held that the Amendment did not protect utterances, when they had this double aspect: i. e., when persuasion and instigation were inseparably confused. In that view the Amendment would give protection to all utterances designed to convince, but its protection would be conditional upon their not being part of, or coupled with, provocation to unlawful conduct, whether that was remote or immediate. True, one does not become an accessory to a crime who “counsels, commands, induces * * * its commission.”
The Supreme Court has certainly evinced a tenderness towards political utterances since the first World War. In Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, the accused had been convicted of distributing a broadside which obstructed the draft, and his conviction was af
In Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484, the majority reversed a conviction because it thought the statute too vague to serve as a guide to conduct; but it explicitly recognized “that the State may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to
All the foregoing cases concerned the validity of statutes which had made it unlawful to stir up opposition to the Government or a state in the discharge of some vital function. There followed several which held that an ordinance or statute might not trench upon freedom of speech in order to promote minor public convenience : e.g., preventing the streets from being .littered by broadsides, Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; requiring a license to solicit contributions for societies, Cantwell v. State of Connecticut, 310 U.S. 296. 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; requiring a union leader to register his name and union affiliation with the Secretary of State, Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. The opinions in all these cases did however repeat the rubric of Schenck v. United States, supra,
Three decisions involving punishment for contempt of court stand upon a different footing: Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546. In each the question was whether the Fourteenth Amendment, incorporating as it does the First, protected against criminal contempt one who published abuse of a judge while a case was pending before him. These opinions also repeated the rubric, but throw no light upon its meaning, and in any case, there could be no issue as to the imminency of the danger, for, whatever effect the abuse might have upon the judge’s decision, it would be either immediate, or at most delayed no longer than his period of
In Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534, a prosecution under the Espionage Act,
Nor is the law as to enjoining peaceful picketing altogether plain. In Thornhill v. State of Alabama, 310 U.S. 88, 66 S.Ct. 736, 84 L.Ed. 1093, the Court declared unconstitutional a state statute which forbad such picketing in an ordinary labor dispute. It held that picketing, when unaccompanied by threats or violence, was no more than an appeal to. others to side with the union. However, in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, it upheld a state statute which authorized courts to enjoin such picketing in what seems to us to have amounted to a secondary boycott. An ice peddlers’ union
The last decision — in some ways the most important of all — is American Communications Association, C. I. O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, in which a majority of the Court held that § 9(h) of the Labor-Management Act
From this wearisome analysis of the decisions of the Supreme Court it has appeared, as we indicated at the outset, that to deprive an utterance of the protection of the Amendment it is not always enough that the purpose of the utterer may include stirring up his hearers to illegal conduct— at least, when the utterance is political. The same utterance may be unprotected, if it be a bare appeal to action, which the Amendment will cover, if it be accompanied by, or incorporated into, utterances addressed to the understanding and seeking to persuade. The phrase, “clear and present danger,” has come to be used as a shorthand statement of those among such mixed or compounded utterances which the Amendment does not protect. Yet it is not a vade mecum; indeed, from its very words it could not be. It is a way to describe a penumbra of occasions, even the outskirts of which are indefinable, but within which, as is so often the case, the courts must their way as they can. In each case they must ask whether the gravity of the “evil,” disc.ounted, by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. We have ^"purposely substituted “improbability” for “remoteness,” because that must be the right interpretation. Given the same probability, it would be wholly irrational to condone future evils which .we should prevent if they were immediate; that could be reconciled only by an indifference to those who come after us. It is only because a substantial intervening period between the utterance and its realization may check its effect and change its importance, that its immediacy is important; and that, as we have said, was the rationale of the concurrence in Whitney v. People of State of California, supra.
In the case at bar the defence seems to us to kick the beam. One may reasonably think it wiser in the long run to let an unhappy, bitter outcast vent his venom before any crowds he can muster and in any terms that he wishes, be they as ferocious as he will; one may trust that his patent impotence will be a foil to anything he may propose. Indeed, it is a measure of the confidence of a society in its own stability that it suffers such fustian to go unchecked. Here we are faced with something very different. The American Communist Party, of which the defendants are the controlling spirits, is a highly articulated, well contrived, far spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are infused with a passionate Utopian faith that is to redeem mankind. It has its Founder, its apostles, its sacred texts — perhaps even its martyrs. It seeks converts far and wide by an extensive system of schooling, demanding of all an inflexible doctrinal orthodoxy. The violent capture of all existing governments is one article of the creed of that faith, which abjures the possibility of success by lawful means. That article, which is a common-place among initiates, is a part of the homiletics for novitiates, although, so far as conveniently it can be, it is covered by an innocent terminology, designed to prevent its disclosure. Our democracy, like any other, must meet that faith and that creed on the merits, or it will perish; and we must not flinch at the challenge. Nevertheless, we may insist that the rules of the game be observed, and
We need not say that even so thoroughly planned and so extensive a confederation would be a “present danger” at all times and in all circumstances;' the question is how imminent: that is, how probable of execution — it was in the summer of 1948, when the indictment was found. We must not close our eyes to our position in the world at that time. By far the most powerful of all the European nations had been a convert to Communism for over' thirty years; its leaders were the most devoted and potent proponents of the faith; no such movement in Europe of East to West had arisen since Islam. Moreover in most of West Europe there were important political Communist factions, always agitating to increase their power; and the defendants were acting in close concert with the movement. The status quo, hastily contrived in 1945, was showing strains and tensions, not originally expected. Save for the unexpected success of the airlift, Britain, France and ourselves would have been forced out of Berlin, contrary to our understanding of the convention by which we were there. We had become the object of invective upon invective; we were continuously -charged with aggressive designs, against other nations; our efforts to reestablish their economic stability were repeatedly set down as a scheme to enslave them; we had been singled out as the chief enemy of the faith; we were the eventually doomed, but the still formidable, protagonist of that decadent system which it was to supplant. Any border fray, any diplomatic incident, any difference in construction of the modus vivendi-^such as the Berlin blockade we have just mentioned — might prove a spark in the tinder-box, and lead to war. We do not understand how one could ask for a more probable danger, unless we must wait till the actual eve of hostilities. The only justification which can be suggested is that in spite of their efforts to mask their purposes, so far as they can do so consistently with the spread of the gospel, discussion and publicity may so weaken their power that it will have ceased to be dangerous when the moment may come. That may be a proper enough antidote in ordinary times and for less redoubtable combinations; but certainly it does not apply to this one. Corruptio optimi pessima. True, we must not forget our own faith; we must be sensitive to the dangers that lurk in any choice; but choose we must, and we shall be silly dupes if we forget that again and again in the past thirty years, just such preparations in other countries have aided to supplant existing governments, when the time was ripe. Nothing short of a revived doctrine of laissez faire, which would have amazed even the Manchester School at its apogee, can fail to realize that such a conspiracy creates a danger of the utmost gravity and of enough probability to justify its suppression. We hold that it is a danger “clear and present.”
However, although for the foregoing reasons we agree with the Eighth Cir
There is ah added reason leading to the same result. Both § 2(a) (1) and § 2(a) (3) make advocacy and teaching of revolution criminal only when it is with a specific intent — the intent to do so by “force or violence.” Obviously one cannot teach or advocate,the use of violence without specifically intending to bring about its use; a'fortiori must that be true, if one organizes a group so to teach. All discussion as to the use of the word “wilfully” in the alternative in § 2(a) (1) is. therefore irrelevant; the sections carry
It will be most convenient now to consider also the defendants’ exception to that part of the judge’s charge which took from the jury all questions regarding the constitutionality of the Act, and only left to them whether the defendants’ intent was to overthrow the government “as speedily as circumstances would permit it to be achieved.” As we have said, “clear and present danger” depends upon whether the mischief of the repression is greater than the gravity of the evil, discounted by its improbability; and it is of course true that the degree of probability that the utterance will bring about the evil is a question of fact. On the other hand, to compare the repression with the evil, when discounted, is not a question of fact at all; for it depends upon a choice between conflicting interests. Ordinarily such choices are for a legislature, whose chief function it is indeed to make them, since a legislature is best qualified to represent the divergent interests of society. However, as we have just said, it is at times impracticable to make such choices in general propositions, because the occasions which will arise within the ambit of the general purpose, are multiform. Sometimes, these choices are delegated initially to administrative tribunals, subject to a court review; sometimes — notably in the case of the Anti-Trust Acts— they are left to the courts, first and last. It is true that similar choices — choices of the proper standard to be applied ad hoc— are sometimes also left to juries: negligence and reasonable notice are instances. But these usually concern only individuals
II. The Challenge to the Array
The next question concerns the challenge to the “array” which we mentioned at the outset, and upon which the defendants conccdedly had the burden of proof. Their, position is — to quote from their brief — “that none of the jury lists, panels and arrays * * * is, or for a long period of time has been, representative of a cross-section of the community, but has been representative only of the upper economic and social groups.” They do not assert that jury lists must “give representation, proportional or otherwise, to every economic” group, but they do assert “that there was, on the one hand, systematic and gross discrimination against and limitation of the excluded groups * * • * and on the other hand, systematic and gross favoritism towards and intentional inclusion of the rich, the propertied and the well-to-do strata of the community.” We assume for argument that if the jury list — that is, the list . from which separate panels are drawn — was unlawful, any separate panel based upon that list was unlawful, though taken by itself it was unexceptionable. That is to say, we will assume that any party to a suit, civil or criminal, is entitled to have the particular panel which tries his case, drawn at random from a list which is not unlawfully weighted, and that he may complain even though he has not shown that the imbalance ' has prejudiced him. The question therefore becomes whether the grand panel and the petit panel which respectively found the indictment and tried the case, were drawn from an unlawful list. The list contained those names which had been carried over from the past to which were added in 1947 and 1948 hew names, culled out of some 25,000 notices sent out during those years. The practice of the clerk’s office was for a deputy clerk, to whom the duty was assigned, either himself, or through assistants who-acted under his direction, to prepare the list, confined substantially to the Boroughs of Manhattan and the Bronx with a sprinkling from Westchester and the other northern counties. The challenge is, not only to the sources from which he sent out no-, tices to prospective jurors, but also that he unlawfully selected those whom he preferred from among those who appeared in answer to the notices and were in fact qualified. There is not enough evidence of this last challenge to demand discussion, and we shall confine ourselves to the first. It does not appear what proportion of those notified appeared, but it must have been small, for, after those who did appear, but failed to qualify were excluded, there remained only fifteen to twenty per cent— roughly one-sixth. In order to “qualify” a, juror, the deputy required him to swear to a “questionnaire” stating his name, address, place and date of birth, education,, employment and employer and other de
The Federal Grand Jury Association, as its name implies, was a voluntary association of present or former grand jurors in the Southern District. Beginning with the year 1938 and until some time in 1941 it prepared lists of prospective jurors, compiled by its officers from the following sources: Who’s Who in New York, Who’s Who in Engineering, The Social Register, volunteers recommended by the Association, the alumni directories of Princeton, Columbia, Harvard, Yale and Dartmouth, Poor’s Register of Executives, and the Directory of Directors. The lists so prepared it .submitted to the clerk and deputy clerk, who until May, 1942, used them as the principal source of persons to be notified. The total number of names so submitted by ■the Association through May 1942, was 16,277. The record contains no figures as to what was the condition of the list in 1938, except the testimony of the Chief Judge of the District that it contained an inordinate number of people on relief. In January, 1942, the Supreme Court decided the case of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, in which Murphy, J., said: “deliberate selection of jurors from the membership of particular private organizations definitely does not conform” to the requirements of “a cross-section of the community”. 315 U.S. at page 86, 62 S.Ct. at page 472, 86 L.Ed. 680. Whether or not because of this, after May, 1942, the Grand Jury Association prepared and sent no lists except 2,014 up to April, 1943, of which 514 were those of women volunteers, Negroes and other undistributed persons. After April, 1943, it sent only 121 names through the next five years. Therefore, even though we count all these as improperly used, the jurors who qualified out of them were presumably not more than 350, too little to deserve notice.
A new deputy clerk was appointed in 1940 and from him we know that in July, 1941, the list contained about TO,-000 names, of whom about 8,000 were petit jurors, and 2,000 were grand jurors. It was about the same size in 1942; but between 1940 and July, 1942, the Association had sent about 12,500 names to the clerk, out of which there were presumably entered upon the list say 2,000 new names, though the judge found that 1,900 names in all had been added between July, 1941, and July, 1942. From July, 1942, to April, 1943, the clerk notified nearly 12,000 persons taken from the voting lists, and 5,000 taken from the Association and volunteers. From the voting lists presumably he secured about 2,000 jurors, and from the Association 800 or more. Again in 1945 and 1946 he added about 2,500 more; so that at the end of that year, except for wastage, the list should have contained between sixteen and seventeen thousand names. In fact the number was about 13,000, and at the end of that year the clerk conducted a sort of purge, called an “inventory,” which was designed to strike out those who had ceased to be qualified for one reason or another. In 1947 and 1948, as we have said, he notified 25,000 new persons — 22,000 from the voting lists — out of which again we are to assume that there resulted a little over 4,000 new qualified jurors. The list in 1948 was about 13,000 (apparently the additions once more only made up for the losses caused by the “inventory”). It is of course impossible to say how many of the names originally sent to the clerk by the Jury Association remained upon that list. As we have seen, even though we do not allow for wastage they were presumably no more than a sixth of 18,000, or about 3,000 out of 13,000. The wastage over eight years must have been substantial, although we can do no more than guess what it was. Since the defendants have the burden, we shall do no injustice if we assume that no more than 3,000 of the 13,000, as the list stood in 1948, had been suggested by the Association. The clerk was free to call all these persons if he wished; he had no reason to reject them; at most his only mistake was that he allowed others to suggest them to him; and, as we shall show, that was not unlawful, for he was free to go to any source for persons to call. The only
The most that could be inferred is that there may 'have been a disposition to favor Association members as grand jurors while they continued upon the list. In conclusion we hold that, even though we were to concede that a list would have been invalid which was wholly made up by persons recommended by the Association, it was not proved that enough of those so recommended.remained upon the list in 1948 to invalidate it. as a whole.
The defendants next challenge the list because of the use made by the deputy clerks of the voting lists after the middle of 1942. With great detail and labor they prepared a series of charts designed to prove that the clerks must have deliberately selected from the voting lists those who came from the wealthier districts of the City in preference to those who came from the poorer. The clerks themselves categorically denied this, and the judge believed them and made a number of findings that they had not had any such purpose; but the defendants answer that the distribution which actually resulted so contradicts the testimony that the findings are “clearly erroneous.” This argument is drawn not only from the 70 grand jury panels, which we have just mentioned, but from 28 petit jury panels, taken more or less at random. The defendants say that the large disproportion of jurors on these panels coming from the wealthier districts of the City, presupposes a similar proportion among those called, and that this could not have been the result of accident, and proves that the clerks preterred the wealthier districts because they wished to pad the list with wealthier jurors. We may say at the outset that it is to the last degree improbable that the clerks themselves should have had any preference for wealthy jurors; the only rational assumption is that the judges had directed them so to weight the list, which the Chief Judge of the district,, who had charge of the matter, flatly denied. The defendants make an additional argument based upon classification of the jurors-on the same panels by their occupations ^ but all such classifications are inevitably arbitrary and these incidentally do not conform to the Census. This kind of reasoning the Supreme Court refused to accept in Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; and in any event, whatever can be inferred-from it would add nothing to the argument drawn from the distribution by districts. We shall therefore confine our consideration to the territorial charts. These were themselves shown to be far from immune from attack in their origin and in detail. They were prepared by two witnesses, Wilkerson and Rodman, who supervised the work of a number of assistants, none of whom were called as witnesses; and the charts were therefore not competent as original documents. However, since they were used only as argumentative compilations from the panels which showed the jurors’ addresses and had been put in evidence, it was proper to use them. Concededly all contained errors, and the judge discredited the accuracy, if not the good faith, of both Wilkerson and Rodman. Although, as we have said, the 28 panels of petit jurors were chosen at random, the sample territorial charts were drawn from only thirteen of .these. The first six were indeed taken alternately; but the record does not show how the other seven were chosen; for all that appears they may have been deliberately selected because of their especial fitness to prove the defendants’ contention. Moreover, quite aside from these infirmities, there are good reasons for be- . lieving that the panels were not a trustworthy basis for learning the composition of the lists of persons to whom notices were
Again, it was not proved that the clerk did not excuse a larger percentage of the poorer persons notified who did- appear. Jury duty is a burden to all who serve except to the relatively few who are not gainfully employed and have leisure — such as retired business men, housewives whose children have grown up, and those who welcome any break in the monotony of their lives. But the hardship which it imposes upon a manual worker, especially now that the cost of living has so much increased, is much greater than that upon “executives” for example, who, ordinarily without serious disarrangement, can be made to serve at specified months. But all times are equally inconvenient to one who must work by the day, week or month to support a family, or even himself alone. No one who has not been charged with the duty of excusing such persons knows how strong such an appeal can be. This factor alone may have accounted for a wide difference between the proportion of those notified and those who “qualified.” That such excuses are illegal Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, 166 A.L.R. 1412, did not decide. The jury clerk had there systematically refused to call any who worked for a daily wage. True, his excuse was that he had found that the judges uniformly excused all such when they were drawn for a panel; but what vitiated the list was the completeness of the exclusion, and the foolishness of the line between daily, weekly or monthly workers. The majority were careful so to limit the decision; saying 328 U.S. on page 224, 66 S.Ct. 984, 987, 90 L.Ed. 1181, “It is clear that a federal judge would be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship,” and quoting with approval the remarks of Judge Knox before the House Committee of the Judiciary that “to require them to do so” (to serve) “is nothing less than the imposition upon them of extreme hardship”. 328 U.S. at page 224, 66 S.Ct. at page 987, 90 L.Ed. 1181. “Only when the financial embarrassment is such as to impose a real burden and hardship does a valid excuse of this nature appear. Thus a blanket exclusion of all daily wage earners, however well-intentioned and however justified by prior actions of trial judges, must be counted among those tendencies which undermine and weaken the institution of jury trial”. 328 U.S. at page 224, 66 S.Ct. at page 987, 90 L.Ed. 1181. Finally 328 U.S. at page 223, 66 S.Ct. at page 987, 90 L.Ed. 1181: “the pay period of a particular individual is completely irrelevant to his eligibility and capacity to serve as a juror.” Whether any such power was properly lodged in the deputy clerks is another matter; even though we are to concede that it was not, it would not prove that they had deliberately chosen wealthier jurors and discarded poorer ones. Therefore this too might have accounted for a large part of the disparity between the panels who served and a roster of those called, if we had one.
However, after making allowance both for the discovered errors in the charts, and for the unanswered possible disparities we have just discussed, it appears to us that it would not be candid to say that these would
In addition to this financial qualification, the New York statute applying to the City, requires that a juror shall be “intelligent; of sound mind and good character; well-informed” ;
Apparently, the practice has long since disappeared of leaving it to the sheriff or the marshal to exercise the discretion which he originally had. For example, in New York County since 1942 the county clerk must prepare “a jury list” from a number of specified documents, “and any other available sources,”
With this in mind, it does not seem to us that the defendants have proved that the list was prepared with any desire impermissibly to overbalance it with wealthier jurors. The standards they were called upon to apply were vague, it is true; but they were not impossible of approximate application, and some of them in any event refer, not alone to the personal qualities of the individual, but also to what is known of him by others. Thus a man unacquainted with others may have “integrity,” but hardly an “approved integrity”; such a man may have an unimpeachable “character,” yet not a “fair character” — at least it is permissible so to understand the phrase. In trying to obtain a list of those who would upon examination turn out to be qualified it was permissible to assume that persons in the preferred districts were more likely to be known to others and that these qualities would be more readily ascertainable than those in the districts not preferred. That may not be true in fact, but it does not seem to us to presuppose that the selection resulted only from a predilection for wealthier jurors. What we have said applies even more to the qualification of being “well-informed.” It is entirely reasonable to assume that the leisure which comes with relative affluence is likely to result in a larger store of general information than is possible for one to acquire who must work for his daily living.
That this is a legitimate view to take seems to us to follow from Fay v. People of State of New York, supra.
It is of course true that the case concerned only the constitutionality of a state statute challenged under the Fourteenth Amendment, and that, as the Court itself observed, it had a more limited supervision in such cases than it has over causes originating in a federal court. It is also true that the jury was selected by personal examination of the individuals while here the clerks attempted a selection in advance and in bulk; but that makes no difference so far as concerns any denial of equal protection of the laws, or of due process of law, based on discrimination in the selection of names. The decision certainly answers any complaint on that score. If a suitor in a state court is denied neither equal protection nor due process, because the list, from which the jury which tries him is drawn, is composed disproportionately of wealthier persons, a suitor in a federal court is in no better position. The words have the same meaning in the Fifth and the Fourteenth Amendments, and the Court is no more solicitous to protect one than the other. It is true that the state courts may not be bound to try crimes by jury, as the Sixth Amendment binds federal courts; and, even whfere they are, any violation of their own constitution would not present a federal question. However, we have in substance already answered any possible question drawn from the Sixth Amendment ■as such. It has been decided over and over again that by it we incorporated the institution as we inherited it, and we have shown that the composition of the list did not diverge from what had been the accepted practice, save that for the sheriff’s discretion the clerk’s was substituted.
There is another possibility which may account for some of the assumed imbalance of the list: it is the same as that which we have already discussed in holding that the panels are not a good reflection of those who responded to the notices. The clerks may have deliberately reduced the proportion of those whom they reasonably expected the judges would excuse on the score of hardship. Or they may have been influenced by such declarations as were made to them when they asked for a list from the American Federation of Labor: i. e., “their people wanted nothing to do with juries.” For example, it would obviously have been unreasonable to put on the list the names of those who were exempt on the chance that they might not claim exemption; yet all the exempt classes are “qualified.” We can see no reason why the clerks should not recognize in advance that there were groups which were poor risks, as it were: i. e.
Nothing need be added, regarding the asserted discrimination against Negroes. So far as they were not represented on the list in proportion to their numbers, there is no evidence that it was on account of their race; and the disproportion is adequately explained by the fact that they are among the poorer groups. The argument drawn from the presence of the letter, “C,” on their cards is without basis; it is understandable why the clerks should wish to know how many Negroes were on the list. The very fact that the Supreme Court had several times decided that they must be represented was occasion enough; any clerk would wish to avoid any color of a charge that he had discriminated against them. Had the list been drawn up for this particular prosecution, there might be some plausibility in finding a motive for keeping down the possibilities of Negroes on the jury, so great have been the wrongs done that race; but only a jaundiced mind can suppose that a public official in New York, having no personal stake in the event, would hazard the risk of detection for the sake of venting his bias against the race generally.
The other decisions on which the defendants rely are readily shown not to be relevant. First are those touching the exclusion of Negroes from juries. In 1879 the Court decided
It is perhaps in order to say a word about the phrase itself — “cross-section,”— because the defendants so much rely upon it. It means a fair sample; and a sample drawn at random from the whole community will of course represent the distribution of wealth in the community as a whole, as it would represent the distribution of age, height, predisposition to sclerosis, or any other characteristic; but nobody contends that the list must be a sample of the whole community. Minors and the aged are excluded, as are the infirm and those of unsound mind, and practically so are all the exempt; a sample at random with any of those included would be different from that which concededly the law may and does prescribe. It is therefore idle to talk of the justness of a sample, until one knows what is the composition of the group which it is to represent. As we have seen, not only does the law exclude the groups we have just mentioned, but it excludes those who do not satisfy the very modest financial minimum still retained; and those also who cannot pass an examination as to the other prescribed qualities — intelligence, character and general information. The clerks attempted to apply these standards roughly by territorial discrimination, to which the defendants object that even though used in good faith, it resulted in weighting the list with the wealthy. There cannot of course be any doubt that the resulting sample is different from what it would have been, had the clerk sent out notices to all districts, based on their population, thus abandoning any effort to make any selection in advance. Moreover, we shall accept it as true, as it probably is, that the distribution of wealth in such a list would have been markedly different from the list actually made. There is nothing wrong in the method as such, unless the law insists that all exclusions must represent the same proportionate distribution of wealth that would exist without them, in answer to which we can only repeat what we have just said. Certainly it is not our province to write a gloss upon a text, so long accredited; if that is to be done, the Supreme Court must do it. We can as yet find no authority in its decisions for holding that an honest application of the traditional standards violates the Fifth and Sixth Amendments, however it results. Nor do we think that we should imply such an authority from the repetition of the phrase on which the defendants rely. Since we do not find adequate evidence that the judge’s findings were “clearly erroneous,” which held that the defendants had not discharged the burden of showing that those standards had not been honestly applied, it follows that the list from which the grand and petit juries were drawn was not unlawfully made up.
III. The Conduct of the Trial
The remaining questions concern the conduct of the trial; and the only important ones are six: the prosecution’s use of the testimony of informers; the misconduct and bias of the trial judge throughout the trial; the denial of an impartial trial jury; errors in the admission of evidence; errors in its exclusion; and the denial to the defendant Davis of the privilege of summing up to the jury. Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly. Entrapment excluded, of which there was none here, decoys and other, deception are always permissible.
The supposed misconduct and bias of the trial judge rest upon incidents, scattered throughout the record of nearly 13,000 pages of testimony and endless colloquy. True, it does not follow, because the attorneys misbehaved that the judge may not have done so too; indubitably the defendants were entitled to an impartial trial, regardless of any faults of those who represented them. Nevertheless, the question of their misbehavior and his misconduct cannot be entirely separated; and it is not irrelevant that this court decided that they so far exceeded the bounds of professional propriety as to deserve a sentence for criminal contempt; and, although there was a dissent, it rested upon procedural grounds, for the judge who wrote it spoke of the attorneys’ conduct as “abominable.” Early in the trial the judge ruled that the objection of one defendant might stand for all; yet the record is filled with repetitions ■by all, or most of, the attorneys of substantially the same arguments made by the first one; and these were repeated incessantly on later occasions after the point had been decided. All was done that could contribute to make impossible an orderly and speedy dispatch of the case; and whether this was, as the judge found, because of a deliberate and concerted effort to wear him down, there can be no doubt that such a concert would have been manifested in precisely the same form. The trial was punctuated over and over again with motions for a mistrial, often for patently frivolous reasons; by innuendo, and at times openly, the judge was charged with unfairness and “judicial misconduct” — often in most insulting language. Those occasions on which the defendants rely to show his intemperate hostility, so far as the record preserves what happened, are completely unconvincing. At times, it is true, he rebuked the attorneys; at times he used language short of requisite judicial gravity ; at times he warned them that if they persisted in conducting themselves as they had been doing, he would punish them when the trial was over. (An entirely proper action, for to commit them pending the trial would have broken it up, and to be ■silent might well have misled them.) These cautions they answered most unwarrantably, as threats to prevent the discharge of their duties. Throughout, the judge kept repeating to the jury that they were not to take what he said to the attorneys against their clients; and, although we do not of course mean that that would have been enough to excuse him, had he in fact weighted the scales against them, none of the instances adduced give support for saying that he did; or that he denied them adequate opportunity to present their case. What he did do, was to attempt to keep the trial within measurable bounds; and in that he failed, because, and only because, the attorneys were obviously unwilling to accord him that cooperation which was his due, so far as it did not curtail their clients’ rights. The length of the trial is itself almost an answer to that;- the defense’s case
Next, it is urged that it was impossible in any event to get an impartial jury because of the heated public feeling against Communists. That such feeling did exist among many persons — probably a large majority — is indeed true; but there was no reason to suppose that it would subside by any delay which would not put off the trial indefinitely. The choice was between using the best means available to secure an impartial jury and letting the prosecution lapse. It was not as though the prejudice had been local, so that it could be cured by removal to another district; it was not as though it were temporary, so that there was any reasonable hope that with a reasonable continuance it would fade. Indeed, as it turns out, it is probable that the trial was at a less unpropitious time than any that has succeeded it, or is likely to follow. Certainly we must spare no effort to secure an impartial panel; but those who may have in fact committed a crime cannot secure immunity because it is possible that the jurors who try them may not be exempt from the general feelings prevalent in the society in which they live; we must do as best we can with the means we have. In 1943 we denied a much more plausible argument of a kind not altogether dissimilar in United States v. Von Clemm, 2 Cir., 136 F.2d 968, 971: “Error is assigned to the court’s refusal to postpone the trial until after termination of the war. The argument proceeds upon the assumption that evidence may be available in Germany which would be favorable to the accused if it could be found and produced. The recognition of such a doctrine would mean that every violator of our laws * * * would be immune from prosecution during time of war by merely asserting that witnesses abroad could prove his innocence of the charge.”
The next complaint is that the judge refused on the voir dire to put to the jurors specific questions, framed by the defense which were designed to learn whether they had any prejudice against Communists or the Communist Party. These questions, which we quote in the margin
The challenges for cause to the six jurors, Walker, von Goeben, Ward, Schieck, Kerr, and Stern, were trivial; and their denial justifies no discussion. A more plausible objection arises over the refusal to withdraw the juror, Janney, or to examine the allegations in the affidavits which supported the defendants’ motion to discharge him. These affidavits were of two kinds: those which alleged that before the trial began he had made a speech in Georgia during which he had said: “We are already fighting a war with Communism and it should be a fight to the death”; “We are in a war whether we think we are or not.” Another, and much more extended, affidavit was of a woman, called Nathanson, who professed to have kept what she called “a diary,” in which she recorded talks she had had with Janney during the trial. Even though the declarations just quoted from Janney’s Georgia speech stood alone, they would not be enough to disqualify the juror under the rule we have mentioned, if he had said, as he did, that he could give the accused a fair trial. That “we” were in a “war” with Communists, which we should “fight to the death,” was, no doubt, an expression of violent hostility; but, if the charge was, as in fact it was, that the defendants were engaged in a conspiracy to teach or advocate the overthrow of our government from within, it by no means followed that even he, who was so hostile to Communists, could not lay aside his general predispositions, when he was faced with the specific issue. Janney did testify that he was not conscious of any bias against the defendants, and that he had never expressed any “views as to” their “guilt”; and perhaps that alone would have been enough. However, had there been only that disclaimer, the Georgia speech would have caused us- some hesitation. Strangely enough, the affidavit of Nathan-son showed that Janney was acutely aware of the difference between the Communism to which he was so hostile, and the particular charge on which he was to pass; and that he would not let himself be di
Janney was a novelist and producer and Nathanson was a “singer-actress”; she explained her repeated visits to Janney by the hope she had of a part in his new production. Her “diary” was not a diary at all; it was a minute report of what she had extracted from the garrulous Janney and even from his assistant in repeated interviews. We cannot be absolutely certain that she had been sent as an agent provocateur to draw him into talk which might disqualify him, but an impartial perusal of the supposed “diary”— especially of the original script — cannot fail to arouse much more than a suspicion that that was exactly what she was. Be that as it may, if she was sent on any such errand, she was hoist with her own petard, for she furnished the most satisfactory evidence that Janney was fit to sit on the panel. It is true that he disregarded the injunctions of the judge, and talked about the trial as he should not. More than that, he expressed in violent terms his weariness at the interminable talk and the documents about “Marxism-Leninism”; he would “crown,” he would “kick,” anyone who ever brought up that subject again. That we can readily understand; but the important thing, as we have said, is the clear distinction he made between Communists and Communism generally, and the issue which he had to decide. We quote the following passages: “The Communists here can’t plot and teach force and violence — of course that’s the charge — whether they do or not, we will have to decide, when the trial is over — this decision will be up to us — or it may not even get to us.” Again: “The Communists are charged with plotting to overthrow the government. Of course, they say they don’t. The Government says they do.” Again: “We have a very fair jury. They are calm — they won’t be swayed or prejudiced by personal emotion. It isn’t whether we like Communists or not — just is this charge true or isn’t it.” Finally: “I always tell people that the Communist Party is not on trial — only eleven individuals.” We hold that the judge acted within the bounds of his discretion, when he refused to discharge this juror.
Next as to evidence alleged to have been erroneously admitted: first, as to the testimony of the witness, Budenz, who had been a Communist in good standing, the managing editor of the party paper, the Daily Worker, but who had become an apostate. His testimony was of two kinds: he swore to the meaning of such terms as “Marxism-Leninism,” “revisionism,” “opportunistic error,” “exceptionalism” and other similar terms which constantly recur in Communist writings. Some of these are coined words, some are words used in another than their colloquial meaning; but all have, as he testified, an accepted conventional meaning among members of the Party. He was as well qualified as an expert to know what that meaning was as anyone could be; and we cannot see any more reason to exclude his testimony than to exclude the evidence of any other parts of the mutual understandings of the defendants. As for the rule against conclusions, it is at most only one of convenience,
The objection to the admission of three especial documents requires no answer; and the only remaining question is the admission of declarations either of teachers of the “principles of Marxism-Leninism” to their pupils, or of members of the Party or of the National Committee to pupils or to someone seeking admission to the Party, or at public meetings designed to secure members or to encourage the faithful. In this circuit we have repeatedly stated that such declarations are competent against the accused in a prosecution for conspiracy, or for any other concerted venture, when, but only when, they are made in execution of an enterprise— “a partnership in crime” — to which the accused and the declarant are both parties, and that the enterprise must itself comprise making some such declaration as a step in its realization
All these declarations the judge left to the jury with the following instruction: “Before you could consider this evidence against the defendants, or any of them, you would have to be convinced beyond a reasonable doubt that the instructor in question was a member of the conspiracy with knowledge of its aims and purposes, and that the teaching in question was during the period of the indictment and in furtherance of the aims and purposes of the conspiracy. * * * If you are convinced beyond a reasonable doubt that one or more of the defendants knowingly were parties to such conspiracy, you may consider the acts and statements of co-conspirators engaged in the same enterprise and done or said in furtherance of the conspiracy and in the time specified in the indictment, just as though such statements and acts were said and done by the defendant or defendants who were found by you to be members of the conspiracy.” It is not clear in the books that these instructions did not too much confine the jurors’ use of the declarations, for it directed them not to regard them at all unless they were first convinced beyond reasonable doubt that the declarant and the defendants were engaged in a common venture which the declarations helped to realize. It is difficult to see what value the declarations could have as proof of the conspiracy, if before using them the jury had to be satisfied that the declarant and the accused were engaged in the conspiracy charged;
Be that as it may, we need not decide the point, because, as we have said, the judge left the question to the jury, which the defendants asked him to do. In another regard he also favored them more than he need have. He charged the jury that they should use no declarations against any defendant, save those made by him himself, unless they were made within the period laid in the indictment. There can be no logical reason for limiting evidence to prove that the defendants were in a conspiracy between 1945 and 1948 to the period of the charge; if they were in the conspiracy earlier, declarations of any one of them or of any other person acting in concert with them are as competent as those made within the period laid. Whether they are relevant depends upon how far they form a rational support for believing that the conspiracy continued to 1945; but it is nonsense to say that events occurring before a crime, can have no relevance to the conclusion that the crime was committed; and declarations are no different from any other evidence. How far back of the commission of the crime one may go is a matter of degree, and within the general control of the judge over the relevancy of evidence. In the case at bar, there is not the least reason to hold that his discretion was abused. The same doctrine applies to evidence occurring before the acts charged had become a crime at all: e. g., in the case at bar the visits of some of the defendants to Moscow before 1940. Just as in the case of events occurring before the dates laid in the indictment, so events occurring before the conspiracy had become a crime, may have logical relevance to the conclusion that the conspiracy continued until after 1940. It is tofo coelo a different question whether we are treating them as media concludendi, or as the factum itself. Kammann v. United States, 7 Cir., 259 F. 192, is not to the contrary; the declarations of the accused before we were at war were extremely remote to prove his intent after we entered the war. There might indeed be a faint basis for supposing that one who sided with the Germans
Next is the question of the evidence which the judge excluded. The most plausible of all the objections is to his refusal to allow the defendant Thompson to testify what he understood to be the meaning of the principles of ‘ Marxism-Leninism. That was in substance the same question which Budenz had been allowed to answer; , and without more the rul.ing might indeed have unduly restricted Thompson’s testimony, though it would scarcely have required a reversal. The purpose of the question was apparently to allow, Thonipson to deny that the innocent clauses in the Party’s Constitution of 1945, to which the question referred; were intended to be a cover for the sinister purposes of the indictment: i. e., whether they were “Aesopian,” . Four of the other defendants, either before or after this ruling, denied that the language was so used, and the force of Thompson’s added denial would • in any event have been extremely small. But that was not all. ■ Later, Thompson managed in- disregard of the judge’s attempt to limit him, to go into a disquisition five pages long as tó what he had told the Party’s Board were the principles of Marxism-Leninism, in which recourse to violence did not appear; and he was later allowed to continue in the same vein for nine more pages. In the light of this to argue that he suffered from the ruling on the first question scarcely justifies the attention we have given it. The judge’s exclusion of Davis’s article was, plainly right as to Davis; evidence of what he had said off the stand was obviously incompetent. So far as it was offered to show how the other defendants understood Marxism-Leninism, we will defer it for the time being. The last exclusion of this kind was of a question to Gates as to what was his understanding of the expression “converting the imperialist war into a civil war,” which appeared in a pamphlet issued by the Party. Thompson later explained that this “slogan” had had its origin at the time of the seizure of power by the Communists in Russia in 1917; and Gates had himself in some measure already confirmed this by saying that the Party had never used it in any war in which the United States took part. With these explanations any damage that Gates might in theory have suffered from the ruling, if it were wrong, seems to us to be imaginary.
The remaining objection to the exclusion of evidence may be summed up as a denial of the defendants’ right to put in evidence documentary and other proof to show the great mass of publications, speeches and teaching in which force and violence were not taught or advocated. They concede that the' judge admitted what they offered about the teaching in those schools in which the prosecution had sought to prove that violence had in fact been taught; but they argue that it was erroneous not to let them show the innocence of the teaching .in other: schools. Similarly, although large numbers of.,publications of the Party .Were put in evidence
Only on one issue in the case could it be relevant. As we have said, the danger which might ensile from the advocacy and teaching of violence must be “present,” by which we mean probable. It would be possible to argue that a great bulk of agitation which did not advocate violence might so cloak or obscure those parts which did, as to make any actual resort to violence too improbable to count. Even so, it was not necessary, and it was clearly most wearisome and confusing to pile in at random all publications of the Party. All that could be demanded was adequate samples of the innocent aspects of the agitation as a whole. The judge did admit a large number of publications, dilating upon the enormities practiced under capitalism, and arguments that these were inherent in that system. For example, he admitted 26 exhibits offered by the defendants which at least by their titles were of this kind; and which, we may be sure, did not contain any advocacy or teaching of violence. To say that he was obliged to admit all that they offered in a trial which had already swollen to unheard of length, is in essence to say that he had no power to decide when evidence, even logically relevant, may be excluded because it would add nothing of importance to elucidate the issue to be tried.
There remains the judge’s refusal to allow the defendant Davis to sum up to the jury at the conclusion of the evidence. Davis had been represented during the whole trial by Mr. Sacher with great skill, loyalty and address; , Davis had indicated not the slightest dissatisfaction with the manner in which Mr. Sacher had conducted himself; nor did he do so when he asked leave to substitute himself in addressing the jury. The judge took the motion under advisement and refused to allow the change; whereupon Davis decided that no one should sum up for him, although there is no reason to suppose that Mr. Sacher would not have done so, had he asked him to do so. The judge gave as his reason that Davis had repeatedly interfered with the conduct of the trial during its course, that he had not confined his testimony to the questions asked him, that he had three times taken part in “outbursts,” and had been disorderly and contemptuous. He feared that to let him address the jury would be an opportunity again to resort to similar devices which would be hard to control.
Since Davis had for nine months been content with Mr. Sacher’s representation of him and was wholly indefinite as to any reason for a sudden change, and since his interest could by no possibility conflict with those of Mr. Sacher’s other clients, it is difficult to assign any other motive for his request than that he wished to make a flaming address to the jury which would have reverberations not only inside but outside the court room. He had no absolute and unconditional privilege to
We have twice ruled that a defendant has no such absolute '.privilege;
This ends all that we think it necessary • to say. We have not indeed dealt with all the objections and complaints put forward by the defendants in the 570 pages of their briefs; that would be impossible within any reasonable bounds. We have, however, answered as well as we can all those points which seem to us of any moment. The record discloses a trial, fought with a persistence, an ingenuity and — we must add — with a perversity, such as we have rarely, if ever, encountered. It is of course possible that the defendants are inspired with the fanatical conviction that they are in possession of the only gospel which will redeem, this sad Planet and bring on a .Golden Age. If so, we need not consider how far that' would justify the endless strategems 'to which they resorted ; and it is not for us to say whether such a prosecution makes against the movement or, on the contrary, only creates more disciples; ours is only to apply the law as we find it. Once the question is answered whether the Smith Act is valid, and whether there was evidence before the jury from- which they might hold it violated, we can find no privilege and no right denied them which had substance. We know of no country where they would have been allowed any approach to the license here accorded them; and none, except Great Britain, where they would have-had so fair a hearing. • Their only plausible complaint is that that' freedom of speech which they would be the first to destroy, has been denied them. We acknowledge that that freedom is not always easy to protect; and that there is no sharp line which marks its scope. We have tried to show that what-these men taught and advocated is outside the zone; our Brother CHASE believes that we have enlarged it too much, and he argues his view with great persuasiveness. But we all agree that they have not brought themselves within its protection, and it is not a matter of great moment how far outside they are.
Convictions affirmed-.
. § 11, Title 18, U.S.C. (1946 Ed.) [1948 Revised Criminal Code, 18 U.S.C.A. § 2385].
. § 2(a) Title IS, U.S.C.A.
. Truax v. Corrigan, 257 U.S. 312, 327, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375.
. 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484.
. 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470.
. § 31 et seq., Title 50, U.S.C.A. [1948 Revised Criminal Code, 18 U.S.C.A. § 793 et seq.].
. § 159(h), Title 29 U.S.C.A.
. 274 U.S. 357, 372, 47 S.Ct. 641, 71 L.Ed. 1095.
. Dunne v. United States, 138 F.2d 137.
. 54 St. at D. 676.
. The Abby Dodge, 223 U.S. 166, 32 S.Ct. 310, 56 L.Ed. 390; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; United States v. Walter, 263 U.S. 15, 44 S.Ct. 10, 68 L.Ed. 137; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 635, 81 L.Ed. 893, 108 A.L.R. 1352; American Power Company v. Securities and Exchange Commission, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103.
. Blackstone, Vol. H, Book III, p. 862.
. 1 St. at L., p. 88.
. § IX, Chapter IV, 36th Session N. Y. Legislature.
. 2 N.Y.Rev.St., p. 411, § 13.
. § 1861 (4), Title 28, U.S.C.A.
. § 596, N. Y. Judiciary Law, McK.Consol.Laws, c. 30.
. § 502, N. Y. Judiciary Law.
. Blackstone, Vol. II, Book III, p. 359.
. § 416, Title 28, U.S.C.
. § 1867, Title 28 U.S.C.A.
. § 594, N. Y. Judiciary Law,
. § 595, N. Y. Judiciary Law.
. Chapter 121, Title 28 U.S.C.A.
. § 1864, Title 28 U.S.C.A.
. 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed.. 2043.
. 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, 166 A.L.R. 1412.
. Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664.
. Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629.
. 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.
. Grimm v. United States, 156 U.S. 604. 610. 15 S.Ct. 470. 39 L.Ed. 550:
. Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413, 86 A.L.R. 249; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322.
. United States v. Becker, 2 Cir., 62 P.2d 1007, 1009; United States v. Wilson, 2 Cir., 154 F.2d 802; Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann, Cas.1917B, 1168.
. “Q.48: Do you believe that Communists are un-American or subversive?
“Q.49: Do you believe that a member of the Communist Party cannot be a loyal citizen of the United States?
“Q.51: Do you regard a Communist as a person who is unworthy of belief?
“Q.52: Are you in favor of legislation outlawing the Communist Party?
“Q.54: Are you in favor of excluding .Communists from employment by state and Federal Governments?
“Q.56: Do you favor the exclusion of Communists from employment by private employers? “Q.58: Do you believe the Communist Party to be the agent of a foreign power? (R. 13243)
“Q.61: Do you believe that the Communist Party teaches and advocates the overthrow and destruction of the Government of the United States by force and violence?
“Q.62: Do you believe that the Communist Party is a conspiracy for the overthrow and destruction of the Government of the United States by force and violence? (R. 13243)
“Q.73: Have you read or heard anything concerning this case? (R. 13244)”
. “Have you at any time been a member of, made contributions to or been associated in any way with business or religious .organizations or organizations of any character in connection with the activities of which you have formed any opinions or impressions as to the merits of the charge unfavorable either to the Government or to the defendants or any of them which would prevent or hinder you from holding your mind fully open until all the evidence and the instructions of the Court are complete?” (R. 2758, 2881, 2914, 2935, 2963)
“Have you at any time been a member of, made contributions to, or been associated in any way with business or religious organizations, or organizations of any character, whose officers or representatives have made any expressions of advocacy of or friendliness toward Communists or Communism in general, on the one hand, or of opposition or hostility to Communists or Communism in general on the other hand, which expressions you have heard or read in any manner, which have led you to form any opinions or impressions as to the merits of the charge, unfavorable either to the Government or to the defendants, or any of them, which would prevent you or hinder you from holding your mind fully open until all the evidence and the instructions of tbe Court are complete?” (R. 2760, 2855, 2S82, 2914, 2932, 2936)
“Has any juror such a bias or prejudice against the Administration or any agency of the United States, or against the defendants or Communists in general, or the Communist Party, whatever its aims and purposes may be, as would prevent him from reaching his verdict solely on the evidence presented in Court and the law as contained in the instructions and rulings of the Court?” ■ (R. 2762, 2916, 2933, 2986, 2968)
“Have you any prejudice or bias for or against any defendant by reason of the race of the defendant which would prevent you from keeping your mind fully open until all the evidence and law are in?” (R. 2812, 2836)
“Would you * * * submit the testimony of such witness to the same scrutiny and test it by the same standards even if the defendant is a Communist?” (R. 2761)
“Would you be embarrassed in arriving at or rendering a verdict of not guilty in any way connected with your employment or by reason of your membership in or affiliation with any church, political party, dub, society, or any other organization of any kind whatsoever, or in any other manner?”
. Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 39 L.Ed. 1033; Assaid v. United States, 4 Cir., 10 F.2d 752; Brady v. United States, 9 Cir., 26 F.2d 400; United States v. Daily, 7 Cir., 139 F.2d 7, 9; United States v. Barra, 2 Cir., 149 F.2d 489; Fredrick v. United States, 9 Cir., 163 F.2d 536, 550.
. Dennis v. United States, 339 U.S. 162, 169, 70 S.Ct. 519.
. Reynolds v. United States, 98 U.S. 145, 155, 156, 25 L.Ed. 244; Holt v. United States, 218 U.S. 245, 248, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138; American Tobacco Co. v. United States, 6 Cir., 147 F.2d 93, 118.
. Central R. R. of New Jersey v. Monahan, 2 Cir., 11 F.2d 212; United States v. Cotter, 2 Cir., 60 F.2d 689, 693, 694.
. Grobelny v. W. T. Cowan, Inc., 2 Cir., 151 F.2d 810; United States v. Corrigan, 2 Cir., 168 F.2d 641, 645.
. United States v. Peoni, 2 Cir., 100 F.2d 401; United States v. Crimmins, 2 Cir., 123 F.2d 271; United States v. Cohen, 2 Cir.. 145 F.2d 82. 90. 91.
. United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1010; Id., 2 Cir.,. 138 F.2d 831; United States v. Gutterman, 2 Cir., 147 F.2d 540, 157 A.L.R. 1221.
. 315 U.S. 60, 62 S.Gt 457, 86 L.Ed. 680.
Concurrence Opinion
(concurring).
If this appeal involved the constitutionality of a statute outlawing appellants’ party, I would not think this opinion necessary. For I agree with my brothers that the validity of a legislative restriction upon an exercise of the freedom of speech is not to- be determined simply by the mechanical application of a legal formula or. rule of thumb, whether or not expressed in terms of “clear and present danger.” Rather, it is to be determined by weighing the competing, and in part conflicting,- interests necessarily involved, including the nature and gravity of the evil meant to be avoided
The Alien Registration Act, 1940,
On the contrary, in Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct.
It is, I think, no answer to this that appellants urge political and economic changes, and there is great value in giving the fullest measure of protection to such speech. If this statute made it criminal to belong to the Communist Party, then that question might arise, and, as I have said, this opinion would not be necessary. The Act at bar, however, is not so broad, as I have attempted to show.
The only answer to the rule of the Git-low case is, I believe, that individuals have
That Gitlow v. People of State of New York was correctly decided and is controlling here seems, to me at least, abundantly clear. It has never been overruled. On the contrary, it was followed in Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. It was approved in Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484. See also Herndon v. Lowry, 301 U.S. 242, 256, 257, 258, 57 S.Ct. 732, 81 L.Ed. 1006; Bridges v. California, 314 U.S. 252, 260, 261, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; Cardozo, J., dissenting in Herndon v. Georgia, 295 U.S. 441, 450, 451, 55 S.Ct. 794, 79 L.Ed. 1530. It is true that language from the dissenting opinions in the Gitlow and Whitney cases has frequently been referred to, though sometimes with disapproval. This is as it should be, for that language has sometimes been helpful in cases where the challenged statute prohibits, not specific utterances, but results which the utterances may - tend to bring about. The Gitlow and Whitney cases remain good law. They are applicable here, and binding upon us. The principle they stand for is sound. I believe that they should be followed directly, and not merely by-passed.
. 54 Stat. 670.
. An illustration is Jefferson’s “The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.” 4 Jefferson, Works (Ford ed.) 467.
. The sufficiency of the evidence to support the conviction is dear. This included, besides the evidence mentioned by Judge HAND, proof that many' of the Communist Party’s activities directed by tbe appellants, were conducted secretly and that appellants followed a policy of concentrating party members in basic industries, all for the purpose of achieving their aims of overthrow, as well as evidence tending to show that the party itself was closely allied to and sympathetic with, and perhaps absolutely dominated by, a foreign government, the Soviet Union.
. This is all that was meant when it was said in Herndon v. Lowry, 323 U.S. 242, 258, 57 S.Ct. 732, 739, 81 L.Ed. 1006, that “ * * * the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”
. See The Report of the Royal Commission (1946).