Yates v. United States

YATES STATES. UNITED al. v. et Argued 8-9, June No. 6. October 1956. Decided petitioners in Margolis argued Ben the cause for No. Leonard, him With on the brief were Norman Alexander Schullman, Branton, H. A. L. Wirin Leo Jr. for Kenny argued petitioner

Robert W. cause Benjamin Dreyfus. him on No. 7. With the brief was a brief cause and filed argued Augustin Donovan 8.No. for the United argued the cause R. Monahan Philip Gen- brief were Solicitor him on the States. With Rankin, Attorney Tompkins and General eral Assistant Koffsky. D. Harold filed reversal were urging curiae

Briefs of amici Okrand, Fred Osmond K. Fraenkel and I. Shapiro, David No. Civil Liberties American Union for the McBride, ah, et for Kuzma Thomas D. Telford Hall, in Nos. and 8. Taylor, for of the opinion delivered Harlan Mr. Justice Court. ques- here to consider certain brought these cases

We not here- Act which have arising the Smith tions under Court, and otherwise to by passed upon been tofore conspiracy of petitioners these review convictions convictions Among other things, that Act. to violate Act application of the Smith upon are claimed to rest which its consti- principles upon is hostile to the States, tutionality upheld 341 in Dennis v. United S. 494. U. a convicted, after trial

These stand in the District Court for the Southern United States California, upon single count indictment District of and teach (1) them with to advocate charging conspiring duty necessity overthrowing the Government of by (2) violence, force and to of the United States organize, Party States, as the Communist of the United all society persons teach, of who so advocate and intent of causing the overthrow Government as by speedily force and violence circumstances would permit. 28, 1940, (3), of June (a)(1) §2 Act 670, 671, Stat. S. C. conspiracy U. 2385.1 The §§ alleged originated to have 1940 and continued down to the date of the in 1951. The indictment indictment charged carrying conspiracy out the the defend- Act,

1 The Smith in 1940, provided pertinent part as enacted as follows: (a) any 2. person— It shall be unlawful for “Sec.

“(1) knowingly willfully abet, to advocate, advise, or or teach the duty, necessity, desirability, propriety overthrowing destroy- or of or ing any government by ; United States force . . . or violence “(2) with the intent to cause or destruction of overthrow any government States, print, publish, edit, issue, in the United to circulate, sell, distribute, publicly any display printed or written or advocating, advising, teaching matter duty, necessity, or desir- ability, propriety or overthrowing destroying any government or violence; in the United States force or “ (3) organize help organize to or any society, assembly group, or persons teach, advocate, encourage who or the overthrow or de- government any struction violence; in the United States force of, or to be or with, any society, become a member or affiliate group, assembly persons, knowing purposes thereof. It any person

“Sec. 3. shall be attempt commit, unlawful for conspire commit, or to any prohibited by provisions the acts of this title. (a) Any person

“Sec. who provisions violates shall, this upon thereof, title conviction be fined not more than $10,000 imprisoned years, or for not more than or ten both.” September 1, 1948, Effective repealed, the Smith Act was and substantially 2385, as C. part re-enacted 18 U. S. of the 1948 § provided recodification. pertinent part Stat. 808. Section 2385 in as follows: knowingly willfully advocates, abets,

“Whoever or advises, or duty, necessity, desirability, teaches the propriety overthrowing or of destroying government by or the of United States of ... force ; . violence . . or “Whoever, with intent to cause the overthrow or of destruction

any government, prints, publishes, issues, such edits, circulates, sells, distributes, publicly any or displays printed written or matter advo- members (a) become co-conspirators would their and

ants knowledge Party, with of the Communist and officers carrying leadership in and assume purposes, its unlawful organized (b) to be activities; cause and policies its out (c) elsewhere; write in California and Party units Party other “Daily and in Worker” publish, and advocacy teaching; proscribed on the articles organs, Party mem- indoctrination of for the conduct schools (d) recruit new (e) teaching, in such bers em- persons among from members, particularly Party Twenty-three nation. key in the industries ployed alleged. conspiracy were in furtherance of the acts overt petitioners was sentenced each of the conviction Upon Thé $10,000. and a fine of imprisonment years’ to five desirability, or teaching duty, necessity, eating, advising, or overthrowing destroying any government propriet3^ or ; . . or force or violence . United States organize any society, attempts organizes helps or to or “Whoever encourage the assembly persons teach, advocate, or group, or who violence; any government or such force overthrow or destruction society, with, any of, or is a member or affiliates such or becomes purposes assembly knowing thereof— group, persons, or imprisoned than $10,000 or not more be fined not more than “Shall years, or . . .” ten both . original both be Smith Act and 2385 will

For convenience § opinion to as “the Smith Act.” referred carry did not into It will be noted that the recodification § provision, (§3). The latter conspiracy section of the Smith Act July 24, to however, 2385 on substance restored § or after that 70 Stat. 623. apply offenses committed on date. charged 3 of the conspiracy in this case was laid under § 1, 1948, period September and for the Act for the Smith thereafter, filing of the under period down to the indictment 371, providing general conspiracy statute, 18 U. S. C. § pertinent part as follows: any persons conspire ... to commit offense

“If two or more against States, persons . the United . . and one more of do conspiracy, not object each shall be fined act effect $10,000 imprisoned years, more or both.” than five more than Appeals Court of affirmed. 225 F. 2d 146. granted We certiorari for the already reasons indicated. 350 U. S. 860.

In the view we take of case, necessary this for us only to consider following petitioners' contentions: (1) “organize” the term as used in the Smith Act erroneously construed the two courts; lower (2) that trial court’s instructions to the errone ously excluded from the case the issue of “incitement to action”; (3) that the evidence was so insufficient as require this acquittal Court to direct of these petitioners; (4) petitioner con Schneiderman’s precluded by viction was judgment Court’s in Schnei States, derman v. United 320 U. S. under the doctrine estoppel.2 collateral For given reasons hereafter, we conclude that these convictions must be reversed case remanded the District Court with instructions to judgments enter of acquittal as to peti certain of the tioners, grant and to a new trial as to rest.

I. The Term “Organize.” One object of the conspiracy charged was to violate the third paragraph of 18 U. C. 2385, provides: § S. organizes

“Whoever helps attempts or or to or- ganize any society, group, assembly persons or who teach, advocate, or encourage the overthrow or of any [govérnment destruction in the United States] by force or . h violence . . all be fined not more [s] than $10,000 imprisoned years, more than ten . both ...” unnecessary We find it petitioners' to consider the contention respect alleged to the apply District Court’s failure to the “clear present danger” rule, as the well contention that their motions for a new trial and a erroneously continuance were denied. 1, supra, p. See note at

304 “establish,” means “organize” that claim

Petitioners in this sense and that existence,” into “bring “found,” 1945 at Party4 organized was the Communist part that this contend this basis latest.5 On by the was barred indictment, returned of the Government, on The limitations.6 three-year statute of continuing a connotes says “organize” that hand, other organiza life of an throughout goes on process which instructions of the court’s words trial that, in the tion, and “the things as recruit includes such the term jury, to the units, and forming of new and the members of new ing existing classes and clubs, expansion regrouping organi or other any society, party, group units of other accepted the Govern The courts below zation.” two petitioners’ that think, however, We position. ment’s principles stated Chief upon position prevail, must century ago a United more than Justice Marshall 76, 95-96, 5 as follows: Wiltberger, v. Wheat. States are penal rule that laws construed “The less old than construc- strictly, perhaps is not much It is on the tenderness of the tion itself. founded plain individuals; for' the and on the rights law power punishment is vested principle department. in the It is legislative, judicial not Court, is to define legislature, not which punishment. and ordain its crime, 4 throughout opinion Except indicated, otherwise this where Party Party” present “Communist refers to the Communist United States. Party, disputed It is the Communist as referred to not being July 1945, indictment, when in the into no later than came disbanded and reconsti the Communist Political Association was original Party the Communist States. tuted as United country Party founded in this in 1919. 18 U. S. C. 3282. Stat. § said, notwithstanding “It rule, is in the con- govern intention of the maker must law This is as well as other statutes. penal, struction of independent rule true. But this new It is subverts the old. a modification of the ancient maxim, though penal and amounts to laws this* they are to are not to be con- strictly, be construed strictly to the strued so as defeat obvious intention the The maxim be legislature. applied is not to so as to narrow the words of the statute the to exclusion ordinary cases those in their words, accepta- which tion, legislature or in in the has that sense which in- obviously them, comprehend. used would legislature tention of the is be the to collected from they employ. words there is no ambiguity Where words, in the there no room for construction. The is be strong indeed, jus- case must a one which would in tify a departing plain meaning Court from the words, penal in in especially act, a of an inten- search tion the which words themselves not suggest. did To determine that a case is the intention of a within statute, language say its must to It authorise us so. dangerous, carry principle, would be the indeed, that a case is within reason or mischief of the statute, provisions, is within its far as punish so a crime not statute, enumerated because it is of equal atrocity, character, or of kindred with those which are If principle enumerated. has ever recognized expounding been criminal law, it has been cases of irritation, considerable which it be precedents forming would unsafe to consider as general rule for other cases.” The statute by does not define is “organ- what meant Dictionary ize.” definitions are of help, for, little as sufficiently those offered us the term is show, susceptible parties here.7 meanings attributed of both Party comprises various The fact that the Communist which some activities, relation to components n does not of “Organizer,” bore the title the petitioners problem. The a solution of the us towards advance organize petitioners conspired here charge “organize” unless embraces Party, and, Communist Government, concept contended for continuing Party similar establishing of new units within the in 1945, initial formation activities, following Party’s vitality far so as the independent significance no have con- charge is Nor are we here involved. “organizing” as quality petitioners’ such, activities cerned with particular may properly activities is, whether “organizational.” Rather, the issue is categorized as used this statute is “organize” whether the term concepts. simply, most by temporal limited Stated possible is to choose between two answers to the problem Party “organized”? Communist question: when to only contend that the natural answer the Petitioners the formation date —in this 1945. The question case, is say- question by have us the Government would answer ing Party today completely “organ- is still not that the following petitioners the the definitions Both and Government cite ed.): Dictionary “organize” (2d of from New International Webster’s organic organs; give to . . “1. To with an structure to. . furnish having arrange interdependent parts, 2. or in each a To constitute function, whole; special act, office, respect the to relation with to get working order; as, organize army; systematize; into to an to to organize gives following the The also us from recruits.” Government Dictionary (1947): bring Wagnall’s “1. Funk & New Standard To whole, systematic cooperation parts into connection as of bring parts coopera to of into effective correlation and the various organize tion; as, peasants army.” the into to And Dictionary, as “To cite Black’s Law follows: establish or furnish working order; organs; systematize; put arrange into appropriate the exercise of its order for normal functions.” that “organizing” continuing process is a does ized”; entity not end until the is dissolved. more legislative history of the Smith Act is no

revealing Congress by “organize” as to meant than what urges “organ- is the statute itself. The Government ize” given meaning acceptance should broad since the narrow require attributing term its sense would Congress provision the intent statute apply Party should not to the as it then Communist existed. The argument that since the Communist as Party it then existed been had born in passed Smith Act was not until the use “organize” provi- its narrow sense would have these meant sions of the statute would never have reached the act organizing Party, except the Communist for the fortuitous Party rebirth 1945—an occurrence which, says could not have course, This, been foreseen hardly Government, congres- could been the have purpose sional since the Act a whole par- Smith ticularly its Party, “organiz- aimed at Communist ing” provisions especially directed at leaders the movement. find this argument unpersuasive. legis-

We While history lative of the Smith Act does show that concern about was a strong leading communism factor to this legislation, also reveals that which was statute, pat- terned on state laws not against anti-sedition directed against Communists but anarchists and syndicalists, was all equally groups falling aimed at its scope.8 within 8Representative McCormack, leading pro W. John one of ponents Act, of the Smith stated before Subcommittee of Judiciary, by Representatives: Committee on the House of “And way, Communists; the this bill is not alone at aimed this bill anyone aimed at who advocates the overthrow of Government Hearing violence and force.” the before Subcommittee No. Judiciary House on the on H. R. and H. R. Committee Cong., May Sess., 22, 1935, 5, p. 74th 1st Serial sup- to whatever is no evidence there important, More of the statute organizing provision that the port the thesis to the Communist reference particular with was written hearings indicate Indeed, congressional Party. Act, provision teaching” “advocating it was espe- was provision, which “organizing” than the rather activities.9 reach Communist cially thought to for reasons any other appear to Nor do there interpre- broad ascribing “organize” to Government’s Congress understandable that should tation. it is While general provisions supplement to have wished at the activities provision Act a directed by special Smith organization creating a new responsible for those involved such was the situation proscribed type, nothing suggests that the the Dennis we find case, beyond provision this, intended to reach “organizing” activities of those concerned with is, embrace the already existing organization. on carrying the affairs of already amply pro- activities covered other Such Act, “membership” clause,10 visions of such as the conjunction “advocacy” prohibition basic conspiracy there is thus no provision, and need any “organizing” provision gaps stretch the to fill in the Moreover, any statute. it is difficult to find considera- persons responsible to those tions, comparable relating creating organization, new which would have led the single special persons out for Congress treatment those occupying organizational positions so-called in an existing organization, especially when this same section of the proscribes statute membership organization such an drawing without distinction holding between those executive office and others.

9Id., passim. “organizing” section, supra, n. also makes it an offense of, “to with, any be or become member society, or affiliate group, assembly persons, knowing purposes thereof.”

309 unpersuasive peti On the other we also find hand, argument Congress. sup tioners’ as to the In intent port meaning “organize,” they argue of the narrower that Act patterned the Smith after the California Syndicalism Criminal Act;11 the California courts in consistently have “organize” taken that Act its under such cases Willis v. narrow and that as sense;12 Co., Banking Eastern Trust & 295, 304, 309, 169 U. S. Patterson, Joines v. 274 U. it 544, S. should be 549, presumed Congress adopting wording of the California Act intended “organize” have the same given meaning by the California courts. As the hearings on the Smith show, particular Act its however, was the York prototype Anarchy Act,13 New Criminal statute, not the California and the “organizing” provi sions of the York Act have New never been construed any court. Moreover, language the extent statute, of the patterned California which itself was on might the earlier York legislation, significant, New weight we think that little be given can to these Cali fornia “general adoption decisions. The rule that of a from wording legislative jurisdic statute another previous judicial tion carries with it the interpretations is a wording presumption legislative ... . strength intention . . simi which varies with the larity of language, the established character of the decisions the jurisdiction from which the language was adopted presence and the lack other indicia of intention.” States, olene Products Co. v. United Car 323 11 1919, 188, Cal. c. Codes, Code, Stat. West’s Ann. Cal. Penal 11401. § 12 People Thurman, 394; People v. App. 147, See 62 Cal. 216 P. v. Thornton, 1020; People Ware, App. 724, v. Cal. 219 P. Cal. App. 81, 226 P. 956. 371, McKinney’s Laws, N. Y. Laws c. Law, N. Y. Penal § 161. relied on cases the three California Here,

S.U. and, courts, of lower all decisions petitioners were history indi- legislative in the anything the absence of we should attention, to its they called that cating of them. Congress was aware that not assume the mean- ourselves left to determine are thus We Act, without of the Smith ing provision of this In these Congress. intent of to the revealing guides as rule that the familiar should follow we circumstances give strictly construed are to criminal statutes the word meaning, is, narrow “organize” its of a new the creation entering acts into only refers performed and not to acts thereafter organization, though may such acts activities, even carrying on its United States See loosely “organizational.” be termed Lacker, 134 U. S. Wiltberger, supra; States v. United v. 476, Gradwell, States v. 485; 624, 628; United 243 U. S. States, 272 indeed Fasulo v. United 620, 628. Such U. S. and until usage “organize,”14 normal of the word is the the federal trial courts the decisions below this case uniformly gave it that question had arisen Flynn, United States v. meaning. unreported See F. 2d 137-37, 354, D. 216 (D. Y.), aff’d, C. S. N. No. C. Mesarosh, F. United States 358; Supp. 345, aff’d, v. 116 opinion J.); 449, Hastie, 223 F. 2d (dissenting Dennis, D. United States unreported (D. also v. C. S. see 128-87, N. C. 183 F. 2d 341 U. 494.15 Y.), aff’d, 201, No. S. meaning. given the In other contexts state courts have term District, 213, v. N. See State ex rel. 54 Minn. 55 W. Childs School 3; 1122; Cass, 230, 236, 1, Whitmire S. C. 49 S. E. 2d Warren v. v. Co., Asphalt 572, 576-577, 22 Barber Pav. 115 Mo. S. W. 490- 64, 70, 491; Co., 24 A. Commonwealth v. Wm. Mann 150 Pa. 602. 15Following Appeals of the Court of for the Ninth decision meaning by case, “organize” given in this has been its wider Circuit Fujimoto, circuit, two United States v. District Courts “according We too think this statute should be read to the import language, natural and obvious without resorting to subtle and forced for the purpose construction limiting extending operation.” of either United its Temple, States v. S. 105 U.

The Government contends if that even the trial court mistaken in its statute, construction error conspiracy charged was harmless because the embraced “advocacy” both of violent overthrow and “organizing” Party, jury Communist was instructed that in order to convict it a conspiracy extending must find objectives. both Hence, argument is, must in any event be taken to have petitioners guilty found conspiring advocate, and the support convictions are able on that basis alone. accept proposi We cannot for a tion number portions of reasons. The of the trial court’s instructions on relied the Government are not sufficiently clear specific to warrant drawing our the jury inference that the understood it find an agree must extending ment to both “advocacy” “organizing” and order to convict.16 Further, jury order to the convict, as required, the court charged, to find an overt act which was “knowingly done in object furtherance of an purpose of the conspiracy charged indictment,” the and have way we no of knowing whether the overt act found jury the was one which it believed to inbe furtherance reported point, Supp. on another 865, 107 F. and United States v. Huff, yet unreported, pending appeal now on to the Court Appeals. The Appeals Court of the Circuit, following Sixth the Circuit, Ninth given meaning. has likewise the term its broader States, Wellman v. United F. 227 2d 757. 16The trial charge, court did no more on this score than to in the language indictment, conspiracy of the objects, that the had two namely, to organize advocate and teach forcible overthrow Party the Communist as a vehicle purpose, for that and then instruct jury conspiracy it must charged find that “the in the proved beyond indictment” had been a reasonable doubt. objective “organizing” than the “advocacy” rather of most The character conspiracy. alleged “organ readily them as alleged associates acts overt we In circumstances “advocacy.” these as with izing” requires is that which applied rule to be proper think the sup verdict is aside cases where to be set a verdict it is another, not on but ground, one portable on Strom jury selected. ground to tell which impossible v. 367-368; California, 359, Williams berg 283 U. S. v. v. Carolina, 291-292; Cramer United 287, S.U. North States, 36, n. 45. 1, 325 U. S. since the Communist conclude, therefore,

We and the indictment was being into Party came three-year of limita- 1951, the statute until returned required “organizing” charge, had run on tions jury’s from the part indictment withdrawal States, F. 2d v. Samuel United consideration. States, 631, 641, United 330 U. S. Haupt See also v. Stromberg California, supra, at 368. 1; n. v. Jury. to the

II. Instructions jury to the contend the instructions Petitioners in that court refused to fatally defective trial find that that, convict, in order to must charge conspired promote defendants which the persons a to “incite” to action for was of kind calculated is argued It the forcible overthrow Government. mere abstract advocacy that forcible overthrow as protection the free of the First speech doctrine is within alleged charged, 20 the 23 overt acts attendance of various Of meetings conventions, alleged or defendants at and 3 issuance Only certain the defendants. and circulation of “directives” Party meetings alleged proved. two of the acts were Both were by any advocacy type that unmarked allegedly conspiring promote.

Amendment; consistently Act, the Smith with that constitutional provision, proscribing must be taken as only action; advocacy the sort of illegal which incites to and that the trial charge, permitting court's conviction for mere advocacy, tendency produce unrelated to its action, forcible in an applica- resulted unconstitutional tion of Government, the Smith Act. The which at the trial requested also charge the court to in terms of “incite- ment,” now takes position, however, the true inciting constitutional line is dividing not between and advocacy abstract overthrow, of forcible but rather be- advocacy tween as such, irrespective qual- inciting its and ities, the mere exposition discussion or of violent overthrow as an theory. abstract print margin

We the pertinent parts of trial court's telling instructions.18 After that it could

18The charged: trial court “As used Smith Act and the indictment: “(1) urge the word plead ‘advocate’ means to or ‘to in favor of; support, vindicate, ... publicly or recommend . . “(2) the word ‘teach’ means ‘to instruct . . . show how ... guide .’; the studies .of . holding opinion

“The advocacy a belief or does not constitute teaching. or prohibit persons Hence the Smith Act does not who may believe the violent overthrow and destruction of the Gov- ernment probable express- United States is or from inevitable ing that belief. Whether such belief be reasonable unreasonable advocacy. is prophecy immaterial. Prediction or is not “Any advocacy teaching urging which does not include the overthrowing destroying force and violence as the means of and the Government of the is United States not within the issue of the finding against indictment here and can constitute no basis for the defendants. teaching

“The kind of charged upon which is your merely desirability verdict must be reached not a but necessity Government of the United States be overthrown destroyed by merely force and violence and propriety expressing mere holding or for defendants convict the not violent over- relating to beliefs, predictions or opinions, pro- the of the content defined trial court throw, the which following terms, teaching in the advocacy or scribed here: are crucial does not include advocacy teaching or which

“Any of over- the means of and violence as urging force of the destroying Government throwing and of the indict- within issue States United any finding no basis and can constitute ment here against the defendants. teaching which is advocacy

“The and kind must be upon your verdict charged destroy United duty Government but a to overthrow and by force and violence. States indictment, 'wilfully,' means a statement as used in the

“The word specific intent other act done with or declaration made or bring of the Govern- about the overthrow and destruction cause or speedily as by as force and violence ment United States permit. circumstances would living defendants, persons under with all other “The in common Constitution, right protected the First Amend- general our have a though hold, express, opinions, even teach and advocate ment majority rejected by overwhelming opinions are their organize right to or combine people; the further American and have spreading persons purpose peaceably for the with other effectively. opinions promoting their more they you opinions or whether seem agree these “Whether unreasonable, absurd, or you reasonable, distasteful hateful has bearing right persons to maintain them other whatever on the no validity. of their persuade others and to seek knowingly wilfully defendants

“No inference that bring indictment, conspired charged or intended to cause the Government of destruction of about the overthrow and speedily as circumstances violence as force and United States teaching may be from the permit, drawn would merely desirability necessity a a reached is not but that the Government of the United States be over- destroyed by thrown and force and violence and not merely duty propriety but to overthrow and destroy by the Government the United States force and violence.”

There can be no doubt from the record so instructing jury regarded the the court and immaterial, as jury’s any intended to withdraw from the consideration, advocacy issue as to the character of the in terms of its capacity to stir listeners to forcible action. Both the proposed and the Government submitted required instructions which would have the to find political or socialism other or doctrines, by economic or social reason any unpopularity by any opinion doctrines or reason of you may respect doctrines, opinions hold with to whether such or the any or defendants, beliefs unreasonable, distasteful, are absurd or hateful. defendants,

“The persons living common other our- under Constitution, right protected by have the First Amendment to system criticize our itself, of Government Government even though speaking writing may or of such criticism undermine confidence in the or They Government cause increase discontent. right foreign policy have the also to criticize the of the United States being played by and the role country affairs; in international praise foreign policy governments and to of other and the role being played by governments those affairs. international right “The enjoy of the defendants to expression such freedom of by opinions is unaffected spoken published whether or not the may you crudely intemperate, seem to to be falsehoods, or to contain designed or to be to embarrass the Government. No inference of conspiracy necessity to advocate and duty teach of over- throw and destruction Government United States violence, bring force and or of intent to cause or about the overthrow and destruction of the Government of the United States force speedily and violence as permit, may circumstances would be drawn expressions from such alone.” mere not of a abstract proscribed end, to that overthrow, but of action of forcible

doctrine ordinarily calcu- reasonably of language use by The trial court action.19 persons to such lated to incite ground instructions on proposed these rejected at may have existed necessity them which giving were: proposed instructions Petitioners’ are which these defendants Act, the statute the Smith “Where advocating teaching violate, speaks and charged conspiring to of with by overthrowing force duty necessity the Government of the and language which, the only violence, this refers to statements and the then action, urge action to overthrow immediate of incitement to A state- existing government the circumstances. existing under then government should hand, that, form if our of ment the other on government would of the change future, overthrow violent Act’s necessary right, the Smith is not within and become then finding against any for a basis prohibition would not constitute and here. the defendants or trial, person to teach advo- purposes can be said

“Por of this United of the of Government and destruction cate overthrow designed expressions only are by when his and violence States force belief, only when or and action, discussion than to induce rather which, language the circumstances they under expressed are ordinarily incite reasonably calculated to used, and it is is merely or belief. to discussion action, rather than persons to such beyond a reasonable prosecution to show is on the “The burden among alleged understanding co- existed doubt that a common amounting to expressions specific of conspirators content as to by Government advocacy the overthrow and destruction this must further show The Government and violence. force advocacy understanding would that such understanding included it would to and that language amounting to incitement action inbe probability to a such as to lead place circumstances take under overthrow. toward violent persons to take action inspire it would by proof that the defendant met burden is not “The Government’s persuade persons other joint efforts to beliefs and made shared certain may of such you find content them, what adopt no matter the time the Dennis ease was tried20 was removed this subsequent Court’s decision in that case. The court made it clear in colloquy with counsel that its view illegal advocacy simply by was made out showing that what was said dealt with forcible overthrow and that was uttered a specific accomplish with intent purpose,21 insisting that all advocacy punish- been, you may agree disagree beliefs to have or whether such beliefs.” proposed Government’s instruction was:

“In interpretation charge further construction and I statute you that it is overthrowing destroying not the abstract doctrine of organized government by unlawful means which denounced law, teaching but the accomplishment and of action for the purpose, by language reasonably ordinarily calculated persons Accordingly, you incite to such action: cannot find guilty charged defendants or you them of the crime unless beyond they are conspired organ- satisfied a reasonable doubt that society, group assembly persons ize a who teach advocate the overthrow or destruction Government United States by force and duty violence and the advocate and teach and necessity overthrowing destroying of or the the Government of by violence, United States teaching force and the with intent that such advocacy principle and be of by language a rule or of action and reasonably ordinarily and persons action, calculated to incite such all with the intent to cause the or overthrow destruction by Government of the speedily United States force and violence as as permit.” circumstances would 20The proposed given Government’s instruction was that the case, trial court in the Dennis p. 326, U. S. See infra. 21Having advocacy teaching stated that all of forcible over throw of punishable language Government was “whether it is of incite not,” long ment or requisite intent, so as it was done with the added, question court “It seems to me this of ‘incitement to’ is question sufficiency involved around of evidence to indicate language language theory philosophy intent. The used is treatment, language and academic rather than . . . ‘incitement [of] jury to action.’ If the language, should convict that sort of on [the] argument would be the evidence insufficient to sustain the was . . conviction . .” or not.” The incitement language it is “whether

able as we theory, on a different affirmed Appeals Court on. shall see later the Smith whether question faced are thus

We over- teaching of forcible advocacy and prohibits Act any effort from divorced principle, an abstract throw as long end, to that so action instigate hold that intent. We engaged in with evil is teaching not. it does advocacy of abstract doctrine between

The distinction is action promoting at unlawful advocacy directed opinions in the consistently recognized that has been one Washington, Fox v. beginning with Court, States, S. 47.22 and Schenck v. United U. S.U. New v. heavily underscored Gitlow This was distinction York, involved23 which statute 268 U. S. and where us, now before identical with nearly one there narrow view taken despite the Court, said: Amendment,24 First penalize the utterance

“The statute does not or academic discus- abstract ‘doctrine’ publication of incitement concrete having quality no sion ‘doctrine’ of over- ... It is not the abstract action. means government by unlawful throwing organized statute, but the advo- is denounced accomplishment of that cacy of action . . . This ... purpose. [Manifesto] [in] .. . That language of direct incitement. advo- finding the Manifesto were warranted merely the abstract doctrine of overthrow- cated not violence and ing organized government by force, 22 principal the sub cases in Court on For discussion States, supra. opinions v. ject, see in Dennis United the several Anarchy Act, 13, supra. The note New York Criminal States, supra, United at 541. See Dennis v. means, unlawful but action to that is clear. . . . end, inciting That utterances to the overthrow or- ganized government by present unlawful means, sufficient danger bring substantive evil to their punishment range within of legislative discretion, is clear.” at Id., 664-669. not, however,

We need decide before us in issue terms of duty constitutional for first is compulsion, our to construe this In doing statute. so we should Congress disregard assume that chose a constitutional danger clearly zone so or that it marked, used words “advocate” and ordinary dictionary “teach” their meanings they already when had been construed as terms of art and carrying special limited connotation. See Co., v. Banking Willis Eastern Trust supra; & Joines v. Patterson, supra; Appel, James v. 192 U. 129, S. 135. Gitlow case York Anarchy New Criminal Act involved, there prototype which furnished the Smith Act, were both known adverted to Congress in the legislative course of the Cf. proceedings.25 Caro States, lene Products Co. v. United supra. The legisla tive history of the Smith Act and related bills shows beyond all question Congress was aware of the dis tinction between the advocacy or teaching of abstract doctrine the advocacy or teaching action, and that it did not disregard intend to it.26 The statute was aimed

25Hearings on H. May R. 4313 and H. R. 22, 1935, pp. 5, at 8, supra. cited note hearing At 8, supra, Representative cited note McCormack repeatedly emphasized proscribed inciting advocacy advocacy. example, For he stated: the word'advocacy’means "... 'in incite,’ a manner to Supreme construed Court in the (P. 5.) Gitlow case . . . .” “. right . . Government has a to make it a person language crime for a specifically to use inciting illegal commission of acts. ... in the manner to [I]t incite, knowingly to advocate in a manner to incite to the overthrow (P. 15.) 4, 8, Government ....’’ pp. See also 320 for the action teaching of concrete advocacy and

at the prin not of Government, forcible overthrow from action. ciples divorced decision this Court’s reliance on

The Government’s jury instructions misplaced. is in Dennis referred there,27 and were were given here were refused find the jury to “the requiring Court as 341 crime.” the substantive to establish facts essential at added). is true that It (emphasis S., at U. it is stated opinion Justice’s late Chief point one dis- advocacy, not at Act “is directed the Smith that the reference id., it is clear that but at cussion,” very for ideas, advocacy action, was to opinion emphasizes next sentence could be no conviction there instructed that properly concurring The two realm of ideas.” in the “advocacy the distinction emphasize likewise in that case opinions Id., 536, 545, 518, 534, at are concerned. which we 546, 547, 571, 572. advocacy of forcible distinguish

In between failing advocacy of action an abstract doctrine overthrow as to have been led appears Court end, to that District in Dennis of violent astray holding It enough. time was to be taken at some future action is “inciting” speech that, to have considered since seems usually calculated to induce thought something of as advocacy of Dennis held action, immediate since this meant sufficient, for future overthrow action action, irrespective tendency generate advocacy, its only it is uttered with a provided punishable, words, In accomplish overthrow. other specific intent thought that Dennis oblit- apparently the District Court advocacy dividing the traditional line between erated advocacy of doctrine and action.28 abstract p. See infra. Schneiderman, Supp. 906, United States v. 106 F. See This misconceives the situation confronting the Court in Dennis and what was held there. Although jury’s verdict, interpreted of the trial light court’s instruc- tions,29did not justify the conclusion that defendants’ advocacy was at, directed or created danger of, imme- diate overthrow, did establish that was building aimed at aup seditious group maintaining init readiness for at a propitious action time. In such circumstances, said Chief Justice Vinson, Government putsch need hold its hand “until the is about be executed, plans have been laid and the signal is awaited. If aiming Government is aware a group at its is attempting overthrow to indoctrinate its mem- bers and to commit they to a course whereby them will strike when the leaders feel the permit, circumstances action the Government is required.” S., at 509. U. The essence of the Dennis holding was that indoctrination of a group preparation for action, future violent as well as exhortation to immediate action, by advocacy found to be directed accomplishment” to “action for the overthrow, forcible to violence “a rule or principle of id., action,” and employing “language of incitement,” at is not 511-512, constitutionally protected when the group is cohesiveness, of sufficient size and is suffi- ciently oriented towards action, and other circumstances are reasonably justify apprehension such as action quite will is thing occur. This different from the view of the District Court here that mere justification doctrinal if overthrow, engaged forcible with the intent punishable per se accomplish overthrow, is under Smith Act. That sort of advocacy, though even uttered may with the that it hope ultimately lead to violent revo- lution, is too remote from concrete action to regarded

29The writ of in Dennis bring up sufficiency certiorari did not of the evidence. 340 U. S. 863. action which preparatory indoctrination kind of

as the concurring one in Dennis. As condemned decisions “Throughout our Dennis it: put opinions the statement between a distinction has recurred there unlawful hearers to take may its prompt an idea which Id., at taken.” action be advocacy that such action, makes Dennis nothing 545. There obsolete. distinction historic view from a different took Appeals Court of recognizing that seemingly Court. While

of the District way in some advocacy must be associated proscribed here given instructions and that the action, the instruc- that respect, considered fell short that unnecessary in court refused were which the trial tions conspiracy, the establishment of this instance because conspiracy statute, general the charged under here Dennis, act, whereas in an overt proof of required Act, the conspiracy charged under Smith where the words, the Court In other required.30 act was no overt an requirement proving the of thought of that Appeals of linking for adequate an substitute the overt act was have been advocacy to action which would otherwise the notion, a mistaken the necessary.31 This, course, is supra. note See stated, 2d, 225 F. at Appeals The Court of 151: Appeals “Finally, [referring opinion the Court Dennis'] approval concurring Supreme gave opinion in the Court and a requiring jury to find judge in of the trial Dennis instructions conspirators Another ‘language was used there. of incitement’ phrase given is had become approval that doctrine destruction upon conjunction with based a ‘rule of In an indictment action.’ teaching organization purpose of proscribing for the such statute advocating required proof overthrow, but of overt neither planned objective, precautionary instruc- specifically nor a such acts enough. expressions judges in But these tions were well original no in connection with the statute established instructions phrases requirement such themselves be used unalterable necessarily overt act will not evidence character of advocacy in, nor, an engaged indeed, agreement advocate forcible itself overthrow an unlawful conspiracy if advocacy it does call for of action. The statement in Dennis that “it is the existence of the conspiracy which danger,” creates the S.,U. at does not support of Appeals. Dennis, Court Bearing in mind that like all other Act conspiracy far, Smith cases thus including one, advocacy involved which had already place, taken and not still to it is clear occur, phrase just context the quoted referred to more than the basic agreement to advocate. “The mere fact [during period] petitioners’ indictment activities did attempt not result to overthrow the Government by force and violence is of course no answer the fact ready group there was a make that was attempt. highly formation organized conspiracy, rigidly disciplined members subject leaders, to call when the petitioners, these felt that ipsissimis changes entirely verbis where the in the basic law and an predicated upon conspiracy different indictment statute have language supererogatory.” rendered to a in such admonitions p. And further at 162: gist conspiracy

“The the of substantive crime of unlawful agreement positive only combination and becomes a some crime when proved conspirators pursuant of the the the enter field action to design. Therefore, conspiracy criminal if the not become rule did a pursuant proscribed intent, of action to the there been would have conspiracy phrases the no violation of statute. The use [as might enough in instructions have been well where a incitement] charged original of the Smith alone its form. violation Act was in folly imperatively specific be phrases It would to command that these be each used in instructions after a on an indictment such as trial present the one.” may period September 1,

It also be noted that for the 1940 to (see 1, supra), conspiracy charge the was note here laid under the Smith old Act. action, . world . . coupled had come

the time for that a con- . of the contention disposes . . conditions, advocacy from the distinguished advocate, to spiracy restrained, because constitutionally be itself, cannot It is the existence only preparation. comprises If the ... danger. creates the conspiracy which cannot bind present, we the reaction are ingredients of catalyst is added.” to wait until the Government The reference supplied). (emphasis S., at 510-511 U. agreement was to an context, “conspiracy,” the term implicit time, some future overthrow at accomplish to given, the instructions jury’s findings under in the speak. Dennis was thus agreement than to an rather future conspiracy engage a at some not concerned with conspiracy advocacy, but rather with seditious time of forcible action presently taking advocate advocacy, that was to action, It not future. We “permit.” would until “circumstances” postponed conspiracy engage no as to whether intimate views speech thus be future, where would advocacy remove, is punish- one further from action separated Act. able under the Smith courts here mis- think, thus, that both of the lower

We Dennis. conceived regard we are unable to light foregoing

In aspect of the case as charge upon this District Court’s Act The was never told that Smith adequate. advocacy preaching in the sense of does not denounce abstractly the forcible overthrow Government. pro- think that trial court’s statement We “urging,” “necessity,” scribed must include the “duty” overthrow, merely its forcible “desirability” “propriety,” may not be as a regarded charging sufficient substitute the Smith Act only advocacy gov- for the overthrow of reaches action ernment force and violence. essential distinction advocacy is that to whom the must those addressed urged or in something, future, do now the rather than merely something. expressions to believe in At best used trial by the court were since equivocal, absence differentiating advocacy instructions of abstract advocacy from they doctrine were as consistent action, with they the former as the latter. Nor do we regard ambiguity their as lessened what the trial court say had as right to the of the defendants to announce their inevitability beliefs as to the revolution, of violent or to unpopular opinions. advocate other Especially when it is unmistakable court did not consider the of action urging being for forcible overthrow neces- sary proscribed element of advocacy, but con- rather question sidered the crucial to be whether the advocacy was uttered specific with a intent to accomplish such overthrow,32 we would not be warranted assuming that the jury drew from these instructions more than the court convey. itself intended them to Nor can accept we argument Government’s that the’ justified District Court charging more than it did because the refused proposed by instructions both specified sides advocacy must be of a character reasonably calculated to “incite” to forcible overthrow, a term which, it is argued, might now have conveyed to the jury an implication advocacy must be imme- diate action. Granting qualification that some proposed instructions would have been permissible to dispel an implication, and that it was not necessary even that trial court should have employed par- ticular term “incite,” it was nevertheless incumbent on the court to make clear in some fashion that must be of merely action and not abstract doctrine. The given not only instructions do not employ the word pp. 317-318, supra. See 326 phrases and terms the use of such avoid

“incite,” but also principle a rule or action,” “as “call for “action,” as in one form offered on, all of which and so action,” and Government.33 by both the or another here is illus- in the instructions lacking find What we given with the instructions contrasting them by trated sustaining Court’s which this jury, upon Dennis to the There bottomed. in that case was of the convictions charged: trial court interpretation

“In construction and further you that it I is charge Smith statute [the Act] destroying or overthrowing the abstract doctrine is means which by unlawful government organized advo- teaching and by this but the law, denounced of that accomplishment for the cacy action o/ by language reasonably ordinarily and cal- purpose, to such action. Accord- persons culated to incite you find the defendants or of them ingly, cannot you are charged of the crime unless satisfied guilty . . . they conspired doubt beyond a reasonable necessity duty and of over- to advocate and teach of the United throwing destroying or Government with the intent violence, States force and rule teaching advocacy principle and ordinarily by language reasonably action and action, calculated to incite to such all with persons speedily intent ... as to cause the overthrow added.) permit.” (Emphasis as circumstances would 391; 9 F. D. at 511-512. S., R. and see U. recognize We distinctions between teaching doctrines, intent, of abstract with evil stirring people action, directed to are often Mr. grasp, sense, subtle and difficult for a broad Gitlow, Justice Holmes said in his dissenting opinion 19, supra. See note supra, “Every at 673: is an incitement.” S.,U. idea subtlety very required But the of these distinctions most and explicit clear instructions with reference to them, they for very concerned issue which went charges against heart of the petitioners. these The need precise understandable instructions on this issue is further emphasized equivocal character of the evi- in dence record, this with which we deal in Part III of this opinion. Instances of speech could be considered to “advocacy amount to of action” are far so few and between as to be completely by almost overshadowed the hundreds in of instances the record in if men- overthrow, tioned at occurs in the all, disputation course doctrinal so wholly remote from action to be lacking as almost in probative Vague value. to “revolutionary” references “militant” action of unspecified character, which are in might found the evidence, in given addition be too great weight jury by in precise the absence more instruc- Particularly tions. in light record, of this regard we must the trial charge court’s respect furnishing this as wholly inadequate guidance to jury point on central the case-. We cannot allow a conviction to on stand “an equivocal direction to the on a basic issue.” Bollenbach States, v. United 326 U. S.

III. The Evidence. The determinations already require made a reversal of these convictions. Nevertheless, the exercise of our power under 28 S. C. U. 2106 to entry § “direct the of such appropriate judgment may just ... be under the cir- cumstances,” we have it duty conceived to be our to scru- this lengthy tinize care, record order to deter- way mine whether the should be open left for a new trial all petitioners. some these a judgment, Such we 34The 14,000 record typewritten consists of some pages. proceed- further foreclose hand, the one on think, should, evi- as to whom petitioners ings against those upon insufficient palpably be in this record would dence leave Gov- hand, other should, on the trial, and new proper under retry the other free to ernment means clear it is no standards, since especially legal them could against of the evidence aspects certain Government advantage to the clarified have been as to the burden misapprehension under a had not been judging In the record upon byit the Smith Act. cast rigorous apply to cases we do not these these criteria Court of which, example, of review standards evi- reviewing required apply Appeals would upon petitioners are convicted if of these dence States, supra, at 516. Dennis v. United Compare retrial. to see record whether Rather, we scrutinized have acquittal unequiv- are individuals as whom there general it is in ocally We do this because demanded. inquiry try judge too and abstract hypothetical inadequate had the evidence would have been whether charge, under a and had proper the cases been submitted that all its evidence must be the Government realized “organiz- than “advocacy” into the rather the channeled may by drawing on ing” charge. think we do this We that power § our under because under 28 U. S. C. justified refusing statute would no doubt be to order we might deemed acquittal even where evidence petitioners since have palpably insufficient, particularly asked in alternative for a new trial as well as for States, Bryan v. United acquittal. 338 U. S. See On this basis we have the evidence concluded against petitioners Connelly, Kusnitz, Richmond, Spec- clearly tor, Steinberg is so insufficient that their ac- quittal petitioners should be but that as to Carl- ordered, son, Dobbs, Fox, Healey (Mrs. Connelly), Lambert, Lima, Stack, justi- Schneiderman, Yates, we would not be way fied in closing proceed to their retrial. We for reasons these conclusions. outset,

At the view the conclusions reached I of Part this opinion, put against we must aside as all petitioners relating “organizing” the evidence to the aspect of the alleged conspiracy, except insofar as it upon bears the “advocacy” charge. That, dilutes indeed, in a way large substantial for part evidence, record unmistakably indicates that the Government relied heavily on charge. its Two “organizing” general further observations should also be made about the evidence “advocacy” to the charge. The first is that both the evidently Government the trial court on proceeded theory advocacy enough abstract doctrine was held, to offend the Smith we whereas, as have it is Act, only advocacy proscribed. forcible action that is second observation both record and the Gov- ernment’s brief in this Court it clear make that the Gov- ernment’s thesis was that the Communist or at Party, Party least the Communist of California, constituted the conspiratorial group, membership and that the con- spiracy proved by showing could therefore be individual actively identified Party’s inferentially parties affairs and thus to its tenets. might This have enough making been well towards out the Government’s case if of the abstract doctrine of forcible overthrow satisfied the Smith Act, we would difficulty at least have little on saying this record that justifiably could conclude that such was one of Party; the tenets of the Communist no and there was dis- pute petitioners’ as to Party active identification with Party affairs. But when it comes to or teaching in the a to sense of call forcible action at some future time regard cannot but as strikingly we this record deficient. At best this voluminous record shows but a half dozen or so incidents even which, scattered under the loosest Most advocacy. such could be deemed show

standards, petitioners, any connected with of these were not by years period covered many or before occurred show- sporadic regard unable to We are indictment. Party viewing the Communist justify ing as sufficient conspiracy and the petitioners these as nexus between however much one scarcely say that charged. We need over- of forcible preaching the abstract may abhor even forcible overthrow or believe that government, throw of Party Communist which the purpose is the ultimate the record dedicated, upon it is evidence in this case. be-judged must petitioners con- than to the evidence look elsewhere must, then, We Party as existence cerning Communist in the indictment. charged to advocate conspiracy Spec- Kusnitz, Richmond, Connelly, to the As adequate evidence in the Steinberg we find no tor, they a to find that permit jury record which would purposes For all relevant conspiracy. members of such long they as was that had here, the sole evidence to them of the Communist members, been officers or functionaries alone, Congress Party California; standing and that Security Internal Act (f) enacted § has against no them. far as this 1950,35makes out case So engaged has or been asso- none of them shows, record wholly any to have been appear ciated with but what single has remark or activities,36 lawful ever made (f): holding “Neither the of office 64 Stat. 50 U. S. C. 783§ any any organization by membership person shall nor Communist (a) (c) per se a violation of subsection subsection constitute or of other criminal statute.” this section might petitioner to link While there was evidence that tend conspiracy,” e., him to “the i. evidence of association Richmond might found petitioners, other and with an individual who during engaged period proscribed the same in the have 332-333, infra, advocacy, think that without pp. see we more such acquittal. justify direct an would refusal to evidence present been remark, when someone else made a which charges to prove against Connelly would tend them. Angeles and Richmond to be were, sure, Los and Editors, People’s Executive respectively, Daily of the World,'the Party Coast can organ, West but we find nothing in the material introduced into from evidence that newspaper which advances the Government’s case.

Moreover, apart inadequacy from the of the evidence to show, at more than the abstract best, by teaching Party, forcible overthrow it is difficult perceive requisite specific how intent to accom- plish by such overthrow could a proved be deemed show- ing membership holding mere or the office in the think Party. Communist therefore as We to these petitioners the entirely meagre justify evidence was too putting trial, them to new and that their acquittal should be ordered.

As to remaining petitioners, the nine we that a consider different conclusion should be reached. was testi- There mony Foard, from the evidence, tying witness and other Fox, Healey, Lima, Lambert, Schneiderman, Stack, and Party Yates to classes conducted San Francisco area year during 1946, where there occurred what might be systematic teaching considered to ad- be vocacy illegal action which is condemned the statute. It might purposes found that one of the of such classes develop group members readiness to at engage time, the crucial perhaps during during war or attack upon the United from without, States activities sabotage and street fighting, order to divert diffuse resistance of the if pos- authorities and vantage sible to seize local points. There was also testi- mony as Angeles to activities in the Los area, during period covered the indictment, might be consid- ered to amount to “advocacy action,” and with which petitioners Carlson and Dobbs linked. From the might be found Scarletto, witness

testimony trustworthy were particularly to be considered individuals in- there and “underground” apparatus taken into time when the be useful would in tasks which structed surreptitiously was arrived. Scarletto violent action for moving of “masses he methods, said, in as indoctrinated all found, It under might in time of crisis.” people teaching was of this circumstances, purpose to apparatus underground of the the members prepare to with violent cooperate to in, facilitate, engage time was when the against government action directed contains evidence short, In while the record ripe. of educational general program more than a little advo- Party which included Communist activity pre- matter, as we are not cacy a theoretical of violence it would be stage case, this of the pared say, at resolving all favor impossible jury, for a conflicts as these San giving the evidence the Government sweep, to Angeles episodes Francisco and Los its utmost engaged was when find that of action also trustworthy, group thought particularly involved was dedicated, for and suited violent tasks. say linking nine

Nor can we the evidence these petitioners requisite to that advocacy, sort intent, retrial specific justify is so tenuous as not to their proper legal Fox, Healey, Lambert, under standards. Lima, Stack, as Schneiderman, Yates, members of the County State and San Francisco were shown to Boards, closely Rothstein, prin- have been associated with Ida classes, during teacher of the Francisco who also cipal San arranged period conspiratorial same a devious and meetings of Board at home holding manner Honig, peti- witness which were attended these tioners. that from to time It also shown time instruc- tions emanated from the Boards their members to groups instructors of at lower levels. And while none produced the written instructions at trial were themselves, might invidious in be inferred that addi- given tional instructions were which were not reduced to writing. Similarly, there was evidence of associa- close tion petitioners between Carlson and Dobbs and associates or superiors Scarletto, might witness be taken indicating petitioners knowledge these two had apparatus which Scarletto was active. And finally, all of these nine either shown have made statements themselves, apparently approved statements made their presence, jury might which a take as some evidence of participation their with the requisite conspiracy in a illegal intent to advocate action.

As to nine petitioners, then, these shall not order we acquittal. an

Before the leaving evidence, we consider it advisable, possible in order misapprehension upon to avoid a new trial, briefly petitioners’ to deal contention that the evidence was insufficient to the prove required overt act of conspiracy Only conviction under 18 U. S. C. 371. § 11 alleged 2 of the overt acts in the indictment to have period occurred within the of the of limitations statute proved. public meeting Each was a held under Party auspices speeches at which were made one or petitioners extolling more the leaders of the Soviet criticizing aspects foreign policy Union various of the of the United States. At an meetings appeal one for funds was made. Petitioners contend that these meetings satisfy requirement do not of the statute there be shown an act conspira- done one object tors “to effect the conspiracy.” The Gov- ernment concedes nothing unlawful was shown to have been said or done at these meetings, but contends these occurrences nonetheless sufficed as overt acts the jury’s findings. under

334 is It is correct. position think the Government’s

We crime act be the substantive that an overt necessary object conspiracy. of the as the in the indictment charged States States, 244; United 239, 252 U. S. Pierce v. United need such Rabinowich, Nor, indeed, 86. 78, U. S. 238 v. in character. by itself, even be criminal taken act, States, The function S. 49. United U. Braverman v. simply to prosecution is conspiracy in a overt act work,” is Carlson v. “that at conspiracy manifest project is States, F. 2d neither United nor conspirators solely the minds resting still in existence. longer no operation fully completed object of con charged offense here substantive typi action that specific rather than the spiracy speech of a substantive criminal cally gravamen constitutes concrete action lead offense. Were we hold some required, as ing to Government was the overthrow of the changed have appear suggest, we would change No altogether. such drastic nature the offense perfunctory drawn from action Congress’ can be law bringing § Smith Act cases within U. S. C. found, upon a new trial the overt act must be While held, we have to have been furtherance view what “organize,” rather than to conspiracy “advocate,” of a prepared say episodes are not that one of relied we in furtherance of an on here could not be found to be objective, if, proper instructions, under a should find Party through a vehicle which that Communist was in alleged conspiracy promoted. was While view of in acquittal Steinberg, episodes, our the first of these longer alleged involved, may which he is to have been no act, relied on an affect the overt this would not Schneiderman was episode, petitioner second alleged proved participated. to have way

For think that foregoing reasons we must open be left for a new trial the extent indicated. Estop-pel.

IV. Collateral There remains petitioner to be dealt with Schneider- man’s claim based on estoppel doctrine of collateral by judgment. Petitioner urges that Schneiderman v. States, United 320 U. proceed- S. denaturalization ing which he was the prevailing party, this Court made him determinations favorable which are conclusive this proceeding under the doctrine of estoppel. collateral Specifically, petitioner contends that the Schneiderman determined, decision for purposes of this proceeding; (1) that the teaching of Marxism-Leninism the Com- Party not'necessarily munist of violent of government; (2) overthrow at that least one tenable conclusion to be drawn from the evidence was that Party Communist goal desired to achieve its of socialism through peaceful means; (3) pre- that it could not be sumed, merely because of his membership officership in the Communist Party, adopted Schneiderman illegal interpretation doctrine; Marxist and finally, (4) proof absent of overt acts indicating that Schneiderman personally adopted a reprehensible inter- pretation, had Government failed to establish its bur- den the clear and unequivocal evidence necessary In denaturalization below, petitioner case. courts urged unsuccessfully that these determinations con- clusive in proceeding under the doctrine collateral estoppel, and entitled him acquittal either to an or to special instructions to the jury. He makes the same contentions here.

areWe in agreement petitioner the doctrine estoppel collateral is not made inapplicable by the fact this is a criminal case, whereas the prior proceedings were civil in character. v. United States Oppenheimer, agree U. S. 85. We further that the nonexistence of may a fact be aby judgment established no less than its may precluded party words, in other existence; that, attempting from estoppel of doctrine collateral under the sought unsuccess- a fact that he prove a second time States, v. United prior action. fully prove in Sealfon petitioner’s quarrel with Nor need we 332 U. S. 575. in denatu- proof applicable of the standard that premise applicable that than greater is at least no ralization cases Mitchell, Helvering v. Compare proceedings. in criminal States, 630. 272 U. S. United 391; v. Murphy 303 U. S. the same substantially deciding, assume, without We types in of cases. the two proof applicable of are standards States, 612. Never- 601, 335 U. S. v. United Klapprott Cf. doc- think that the appear, that will we for reasons theless, here. help petitioner estoppel does not of collateral trine in his estimate of first petitioner, all, differ with We purposes for Schneiderman case determined what the doctrine makes estoppel. That doctrine collateral subsequent proceedings only determinations conclusive essential to fact, law, mixed fact and Sunnen, 591, v. 333 U. S. decision. Commissioner Co., Maryland 620; R. 289 U. S. 601-602; Tait v. Western Nunan, As we read v. 141 F. 2d Evergreens essen- only determination opinion, the Schneiderman not, prior had tial the decision was Schneiderman interpretation 1927, adopted Communist and exhortation Party’s teachings featuring “agitation S., violent action.” 320 at 157-159. present for U. calling extended in the alterna- accepted holding If it be engaged tive to the character of Com- Party, finding then the essential was that munist Party not, “agitation and exhorta- engaged had present Ibid. The calling tion violent action.” certainly not purport Court in Schneiderman did to deter- mine what the doctrinal content “Marxism-Leninism” Nor might places. be at all times and all did it estab- and pamphlets against lish that books introduced in in could proceeding support Schneiderman that not how or way criminality, an inference of no matter they might most, think, whom be used. At we thereafter it made have limited to stated, the determinations we in time and that issue. place were then made apparent It is therefore that the determinations in as a operate this Court Schneiderman could not complete Wholly to this from the proceeding. bar aside fact Court concerned the state that was there with in existing of affairs we are here 1927, whereas concerned period with the issues in the case 1948-1951, present here quite are different. are not concerned We in petitioner engaged “agitation whether has and exhorta- present for in 1927 calling action,” tion violent whether conclusively if it against later. Even established petitioner that nor the Com- Government neither Party engaged advocacy, munist had ever such would no bar conviction circumstance constitute to a conspiring § under 18 S. C. 371 of to advocate forcible U. government in violation of the Smith Act. overthrow necessary It is for here not conviction “present action” demand proved. violent be Petitioner’s acquittal for therefore The judgment rejected. must be decision in Federal v. Cement Insti- Trade Commission tute, precisely S. is and is 708-709, point U. controlling. peti- have also disposes

What we said we think trial in- tioner’s contention that court should have evidentiary structed the that certain or subordinate conclusively issues be taken as determined his must argument favor. The determinations made wholly the Schneiderman case are irrelevant to this case, they do it, peti- even if not conclude and hence that tioner should be entitled to instruction those giving as partial they determinations such conclusive effect might think, however, warrant. We the doctrine concept any not establish estoppel does

of collateral by peti- as that contended evidence” of “conclusive judgment need prior normal is that a rule tioner. at all unless it establishes effect given no conclusive subsequent pro- in the ultimate facts issue one facts evidentiary “mediate” merely far ceeding. So is inop- estoppel of collateral concerned, are the doctrine Nunan, 927; 141 F. 2d Evergreens The v. erative. p. Whether Judgments 68, comment Restatement, § of limit- giving in which the are there circumstances be requested might as those here ing instructions determine. Cf. necessary we need not now proper, Pictures, Theatres, Inc. Bordonaro Bros. v. Paramount Inc., for us to hold 676, F. 2d 678. It is sufficient of fact and mixed fact and in this case matters necessarily by prior judgment, limited law determined year so remote from the they were to the in from evidence justify issues as to their exclusion judge. the trial discretion of be trial,

Since there must a new we have not found it necessary to deal with the contentions of the already as to the fairness trial judgment held. The Appeals of the Court of is and the reversed, case remanded to the for further proceedings District Court consistent this opinion. with It so ordered. Burton, Mr. Justice in the result. concurring I agree the result reached the Court, and with opinion except interpretation of the Court as to its “organize” of the term as used in the Act. As Smith that, interpretation I agree given with the the Court 225 F. 146. Appeals. 2d Justice Brennan Mr. Justice Whittaker

Mr. part took no the consideration or decision this case. Douglas Black, with whom Justice Justice Mr. Mr. concurring joins, part dissenting part.

I. I every would reverse one these convictions and In acquitted. my judg- direct that all the defendants statutory ment on provisions prosecu- which these abridge speech, press tions are freedom of based assembly in violation of First to the Amendment my United States Constitution. See dissent and that Douglas States, of Mr. Justice Dennis v. United 494, 579, in Amer- my opinion U. S. 581. Also see Douds, ican v. Communications Assn. 339 U. S. wholly trials here dissimilar kind of conducted are to normal trials. “Smith Act” Ordinarily criminal these In prolonged lasting part trials affairs are months. this is attributable the routine introduction evidence books, news- tracts, pamphlets, massive collections discussing manifestoes papers, Communism, Social- ism, Capitalism, governmental Feudalism and institutions it is are general, which, say, turgid, not too much to just diffuse, abstruse, plain course, juror dull. Of no way can or expected plow through jungle is his verbiage. testimony comparatively of witnesses is insignificant. or on may Guilt innocence turn what Marx or Engels or someone else wrote or advocated as years ago. Elaborate, much as a or more hundred refined “Communism,” distinctions are “Marx- between drawn “Leninism,” ism,” “Trotskyism,” and “Stalinism.” When propriety obnoxious or unorthodox views about government in reality issue, it made crucial as must be in cases of this kind, prejudice makes conviction inev- except itable in the rarest circumstances.

II. that assumption on proceeds Court Since the I feel however, valid, are statutory involved provisions it considers. about the issues my views express free to opinion I Part of the Court’s agree First. —I with and holds that statutory term, “organize,” with the deals by indictment was barred organizing charge of limitations. three-year statute it holds the Court insofar as agree Second. —I also persons could instructing judge that the erred trial teaching for and advo- under the Smith Act punished be But principle. as an forceful overthrow abstract cating I the instruction hand, agree on cannot the other is constitu- might approve the Court indicates says persons can tionally The Court permissible. overthrow the advocating action to punished be for whom violence, force where those to Government something, are “to now urged is addressed do merely believe in some- future, or in the rather than approach, Court’s defendants could thing.” Under the to talk as distin- simply agreeing still convicted guished from act. I the First agreeing to believe that for talk- Congress punish people Amendment forbids ing public such discussion affairs, about whether legal illegal. Meiklejohn, incites to See Free action, Speech Chafee, and Its Relation to Self-Government. Cf. Review, Virginia Book L. As Harv. Rev. 891. Assembly said in Religious its “Statute for Lib- erty,” Jefferson, enough written Thomas “it is time rightful purposes for the for its government, civil principles officers to interfere when break out into overt * against good peace Giboney acts order. ...” Cf. v. Co., Empire Storage Ice Labor 490, 501-502; & S.U. *12 (Virginia Hening’s 1823), 34, p. Stat. c. 85. Virginia Co.,

Board v. Electric & P. 476- U. S. Board, P. 480; Virginia Electric & Co. v. Labor U. S. 533,

Third. —I also that agree petitioners, Court Connelly, Spector, Kusnitz, Richmond, Steinberg, acquitted be ordered since is no should there evidence they engaged “wholly have ever but law- anything ful But to I activities.” contrast think the Court, same action should also be taken as to nine remaining opinion defendants. The strong- Court’s summarizes the est against evidence offered these defendants. This sum- a mary pitiful reveals inadequacy proof beyond to show a reasonable doubt guilty defendants were conspiring persons to incite to act to overthrow says: Government. The Court “In short, while the record contains evidence little more than a general program of educational activity by the Party Communist included advocacy of matter, violence are theoretical we not prepared say, stage to at case, impossible it would be con- jury, resolving all flicts in favor giving Government and the evi- to dence as these San Francisco and Los Angeles its episodes utmost sweep, find action was engaged group also when the involved thought particularly trustworthy, dedicated, suited for violent tasks.” unjust

It compel seems who these nine defendants, just have through go been one four-month trial, the ordeal of through another trial on the basis of such flimsy evidence. As summary demonstrates, the Court’s the evidence during introduced the trial against these defendants support was insufficient their conviction. Under circumstances, trial duty was the judge to direct a verdict of If acquittal. had

342 gather could the Government so that discharged been a dis- convict, attempt additional evidence of former plea for a basis been sound charge would have Hunter, Wade v. trial. in a second See jeopardy that agree I cannot there. and cases cited U. S. these cases back Court to send “justice” requires again violation jeopardy put these defendants Amendment’s of the Fifth spirit if not the letter jeopardy. double provision against conspiracy which this section under Fourth. —The requires § S. C. brought, U. indictment object of the con- act “to effect the proof an overt done charged 11 such overt acts were Originally, spiracy.” 2, and dwindled to here. These have now says: Court Party aus- public meeting held under

“Each was or more of made one pices speeches at which extolling leaders of the Soviet Union foreign policy criticizing aspects of the various meetings an At one of the of the States. United for funds was made. Petitioners contend appeal meetings satisfy requirement do not these one of be an act done statute that there shown object conspiracy.’ conspirators ‘to effect the nothing concedes that unlawful was The Government meetings, these to have been said or done at shown nonetheless these occurrences but contends findings.” jury’s acts sufficed as overt under at these lawful and The holds attendance Court act” sufficient to orderly meetings constitutes an “overt I statutory disagree. requirements. meet the conspiracy of an act in requirement proof overt particularly in formality, prosecutions is no mere cases many are akin to trials for respects like these which III, provides Article of the Constitution 3,§ treason. “No of Treason on Person shall convicted unless Testimony Act, of to the overt two Witnesses same on open objects Confession Court.” One of the of provision of dis keep people being was to from convicted to loyalty government during periods of excitement when passions merely they ran prejudices high, because expressed “unacceptable” See Cramer v. United views. States, 1, that U. S. 48. The same reasons make proof overt acts so in' important apply treason cases only here. The overt act which is charged against now they constitutionally these defendants that to a went protected public assembly they part where took lawful public they discussion of questions, where neither anyone nor else advocated overthrow suggested Many years United States Government. ago this Court very said that “The idea a government, republican implies a form, right part on the of its citizens to meet peaceably for in respect public consultation affairs petition and to a grievances.” for redress of United Cruikshank, States v. U. S. And see Jonge Oregon, De v. S. 364-365. In my judg U. ment public defendants’ attendance at meetings these be cannot viewed as an object overt act effectuate the conspiracy charged.

III. In essence, upon tried the charge they believe in and country want to foist upon this different and to us a despicable form of authoritarian government in which voices criticizing the existing order are summarily silenced. I fear present type of prosecutions are more in line philosophy with the government authoritarian than with expressed our First Amendment.

Doubtlessly, dictators have to stamp out causes and they beliefs which deem subversive to their evil regimes. seems and beliefs of causes suppression governmental But Constitution of what our very antithesis to me Amend- in the First expressed for. The choice stands a tur- against made expression of free ment in favor Madison, Jefferson, by men such background bulent loyalty pro- believed that who and Mason —men way to assure best was the of this Amendment visions Unless nation and its Government. long life this new for ideas, of all expression complete freedom there is. way concerning govern- not, like them or we' whether I if shall run doubt it, ment be run and who should against censor. long run can be secured views only security kind provides The First Amendment preserve government system that can a free —one favor, discuss, way open people wide for to leaves the however obnox- advocate, or incite causes and doctrines may be to the rest of us. antagonistic ious and such views Clark, dissenting. Mr. Justice organizers and petitioners, principal The leaders for Party in have been convicted California, Communist They conspiracy covering period a the 1940 to 1951. engaged conspiracy in this the in were with defendants States, Dennis v. United (1951). 494 The 341 U. S. Dennis co-conspirators defendants, named but were convicted in New here, indicted with the defendants provisions York former the Smith conspiracy under the ed.) Act, 671, (1946 They 54 have § Stat. 18 U. S. C. serving prison or are now terms as a result of their served convictions. Dennis, in conspiracy charged

The here is the same as except geared conditions, it is and here California period under the brought, 1951, general the conspiracy S. C. rather than old statute, § U. section of the Act. The indictment conspiracy Smith with charges petitioners conspiracy a sec- violate two tions in Act, of the Smith as recodified C. § U. S. (1) and knowingly wilfully teaching advocating and violent overthrow Government of the United in and States, (2) organizing through California the crea- cells, schools, tion of groups, persons, assemblies like, Party, society the Communist which teaches advocates violent overthrow the Government. conspiracy The includes the same group of defendants as in the Dennis though petitioners occupied case here party hierarchy. lower echelon neverthe- They, less, army engaged served the same and were in the upon same mission. convictions here were based closely Dennis paralleling evidence that adduced Flynn, United States v. (C. 216 F. 2d 354 A. Cir. 2d both 1954), of which resulted convictions. This Court laid down in Dennis the principles governing prose- they closely cutions and to here, although adhered permit the nature the two cases did not identical handling.

I would affirm the convictions. However, Court has freed five of the convicted and ordered remaining five, says new trials for the As nine. “clearly I agree evidence is insufficient.” Appeals, Court of District Court, guilt the evidence beyond showed a reasonable Dennis Flynn paralleled doubt.1 It and was and Richmond, Connelly, Kusnitz, Petitioners Steinberg, Spector are set free. many years

Richmond at the time of his indictment had for been the Daily People’s World, organ editor-in-chief of the the official Party joined Party the the on Coast. He had West the in 1931 technique and received his indoctrination in Communist at the offices Daily Worker, Party the paper the on official the East Coast. by In he Party’s was chosen the Central Committee to be should not event, Court In strong. equally I case in long history In find no its acquit anyone here. solely by this Court acquittal has been ordered an which usurping late to start now It is somewhat on the facts. trials are especially where new jury, the the function of may be— charges. It covering the same held to be it is somewhat doubt- today’s opinion after although by the Court theories announced under the new ful —that Daily transferred managing People’s World and was of the editor through regularly he secret attended From 1946 to California. Party, county admission meetings of the state and boards special Party members by a list of identification from to which was security Party strategy by Party chief. prepared the chairman its meetings” “very Richmond and mapped out secret attended at peti- including Party machinery, at seven of the least the core of help develop special on a committee tioners here. Richmond served represented Yates; he petitioner “preconvention discussion” many convention; he addressed committee at the 1950 state Party “vanguard meetings role” of the Party preaching the movement; and importance People’s the Communist World in approach.” paper urged the “Leninist and Marxist his articles in the Angeles Connelly, Party was the Los member since at least early During People’s the mobilization effort editor of the World. up “building efforts to sentiment War II he devoted his World among aircraft, shipyard against steel, . . the war effort” . meetings attended the same secret workers. He attended Richmond. charges question proof be no sustained

There can Connelly conspiracy. newspaper Their against in the Richmond and Party aims, through announced its was the conduit decisions, sought funds, its members. policies, and its and recruited People’s height does is the of naiveté claim that World It seeking Party publish appeals to its readers to follow doctrine reality by force, but is stark the overthrow of Government provides incomparable publication means to conclude Party’s seizure when the time promoting aim of forcible ripe. Party since Spector been active in the California has Petitioner Party taught “Marxism-Leninism” schools early He 1930’s. prosecutions

for Smith might Act sufficient evidence say available on remand. To the least, the Government should an opportunity present have its evidence under these changed conditions.

I of agree cannot that half against indictment remaining petitioners nine quashed should be as barred I by the statute of limitations. agree my with Brother the Court has incorrectly interpreted the Burton organizer” Angeles County. was “division in Los He attended “underground meetings” Dobbs, Lambert, Healy, with Carlson, and Schneiderman. The witness Rosser testified that these meetings you get you were “so hid that couldn’t to them unless Party invited and there.” taken In 1946 he “conducted for classes” Hollywood, members in and in 1947 as a member of a committee Party of three Russell, officials examined witness a student in charges Party classes, being one of his on “police spy.” Kusnitz, following organizational Petitioner indoctrination period City, Party in New York became a leader in California in organizer,” “organizational served as “section and later as secretary” Angeles. position directly in Los Her was below Party the local hierarchy. many chairman in She attended secret meetings present Party meeting petitioner and was at a Yates necessity when Yates support” advocated the of “Soviet and “Marx- training” bringing ist-Leninist “type as a means of about Soviet government ... all over the world.” She contributed articles publications very to Communist “regrouping and was in the active . units”; . . conducting clubs into smaller leadership a “six session training seminar”; carrying campaigns subscriptions on for to the People’s World; leading “Party Building drive” for the recruitment of members. Henry Steinberg,

Petitioner Young League, active in the Communist Party and associated with the since was “educational part program director.” He took in the creation for the Party’s training Angeles County. schools in Los His “education department” sponsored meetings, honoring several one the 25th an- niversary petitioner the death of Lenin. He worked with Schnei- Party derman, California, meetings Chairman in attended regularly, People’s was active in World, circulation drives speaker principal meetings. many at The Court Act. in the Smith as used “organize” term Act,2 of “Whoever words the plain the concludes any society, organize attempts helps or or organizes added) em- (emphasis persons” of assembly or group, of a into the creation entering “acts only those bodies Party, to the Communist applied As organization.” new reconstitution only it refers to the Court holds the is, here prosecution of the part Party in 1945 and of limitations. by three-year statute therefore, barred Congress of the purpose frustrates This construction grow- curb the primarily in 1940 passed for the Act was Party.3 activity of the Under ing strength barred at have been prosecution would all interpretation Party for the was adoption the Act very of the time concerned with Congress had been in 1919. If the formed not have Party it would initial establishment phrase “group, “helps attempts,” nor the the words or used 2 18 U. S. C. § 3 Congressman floor of the House remarks on the McCormack’s July during the Smith 29, 1939, the debate on Representatives on stated, underlying purpose that Act. He behind Act reflect the inter alia: has as its ultimate

“We all know that the Communist movement government by or objective force and violence the overthrow of testimony That any means, legal illegal, of both. or or a combination special I committee of which indisputably produced before the was gave hearsay chairman, lips who not of those and came from Party of the Communist testimony, but of the official records actual presented to the executive States, our committee of the United secretary Party of the Communist leader the Communist Therefore, States, . . . a Com- Party Earl Browder. in the United knowingly willfully participate in or who intends munist is one bring both, that will any actions, legal illegal, or a combination of He is one we of our overthrow Government. about ultimate added.) (Emphasis Cong. aiming Rec. 10454. are at .. . the House Hearings No. 3 of Com- before Subcommittee See also Cong., Judiciary 1st Sess. 84. on H. R. 76th mittee on assembly persons.” It was concerned with the new fronts, cells, schools, groups, Communist and other well as assemblies of created persons, being which were nearly every day aegis Party carry under the on purposes. its charges This what the indictment here and the proof beyond shows doubt was fact done. The today prevents decision all time prosecution Party under members of the Act. subparagraph this holding

While the requires the Court a reversal of retrial, very case the Court properly considers given judge. instructions the trial I do not agree with the conclusion regarding Court the instruc- I tions, pleased but am highly to see that it disposes problem so that on the new trial instructions will be given will at least meet the views of the I Court. have opinion studied the section of concerning and frankly “artillery instructions its of words” leaves me confused why as to the majority charge concludes that the given as was insufficient. I thought Dennis merely held that a charge was requires sufficient where it a find- ing that “the Party advocates the theory that there is a duty and necessity to overthrow the Government force and violence. . . prophetic . not as a insight or as a bit . . . speculation, program but as a adher- winning ents and a policy to be translated into action” as soon as the permit. circumstances S., (con- U. at 546-547 curring opinion). I notice however that to the majority

“The essence of the Dennis holding was that indoc- trination of a group preparation for future violent action, as well as exhortation to action, immediate by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, violence 'as a or principle rule and employing action/ id., 'language at 511-512, is not con- incitement/ stitutionally protected group when the is of sufficient towards sufficiently oriented cohesiveness, is

size and are such as reason- other circumstances action, and occur.” that action will apprehension ably justify seem and over but do not over I read this statement have between it I no resemblance meaning for see its grasp Dennis, wrote Justice respected Chief and what concurring opinions. theory in the I find nor do all that was charged essence judge trial it, As I see one takes the Dennis opinions, whether required under concurring in the Justice or of those the view of the Chief Court what disturbs the now Apparently judgment. the Dennis charge give here did not judge the trial and the defense asked prosecution both the although requests I grant he refused to these Since given. feels that there must be some differ- suppose majority given the one that was charges, ence two else between in Dennis would have been followed here. there While may charges, as I view be some distinctions between the find, I they them are without material difference. majority are intimates, the distinctions too “subtle grasp.” and difficult to

However, view the fact that the case must be regardless disposition here on the retried, made charges, engage nothing I see in what becomes no reason the majority more in semantics with than exercise if I Certainly about this of the case. had been phase Dennis I sitting given charge, at the trial would have correct, simply I more but not because consider Per- approval of this Court. stamp because it had the I practical. is too But am sure haps approach pays. practicality often judge trial realizes now agreement I that I am in with the perhaps should add petitioner can holding in its Schneiderman Court estoppel. aid from doctrine collateral find no

Case Details

Case Name: Yates v. United States

Court Name: Supreme Court of the United States

Date Published: Jun 17, 1957

Citation: 354 U.S. 298

Docket Number: 6

Court Abbreviation: SCOTUS