The 14 petitioners, leaders of the Communist Party in
California, were indicted in 1951 in a Federal District Court under
§ 3 of the Smith Act and 18 U.S.C. § 371 for conspiring (1) to
advocate and teach the duty and necessity of overthrowing the
Government of the United States by force and violence, and (2) to
organize, as the Communist Party of the United States, a society of
persons who so advocate and teach, all with the intent of causing
the overthrow of the Government by force and violence as speedily
as circumstances would permit. The indictment charged that the
conspiracy originated in 1940 and continued down to the date of the
indictment, and that, in carrying it out, petitioners and their
coconspirators would (a) become members and officers of the
Communist Party, with knowledge of its unlawful purposes, and
assume leadership in carrying out its policies and activities, (b)
cause to be organized units of the Party in California and
elsewhere, (c) write and publish articles on such advocacy and
teaching, (d) conduct schools for the indoctrination of Party
members in such advocacy and teaching, and (e) recruit new Party
members, particularly from among persons employed in the key
industries of the Nation. It also alleged 23 overt acts in
furtherance of the conspiracy. Petitioners were convicted after a
jury trial, and their convictions were sustained by the Court of
Appeals.
Held: The convictions are reversed, and the cause is
remanded to the District Court with directions to enter judgments
of acquittal as to five of the petitioners and to grant a new trial
as to the others. Pp.
354 U. S.
300-338.
1. Since the Communist Party came into being in 1945, and the
indictment was not returned until 1951, the three-year statute of
limitations had run on the "organizing" charge, and required the
withdrawal of that part of the indictment from the jury's
consideration. Pp.
354 U. S.
303-312.
Page 354 U. S. 299
(a) Applying the rule that criminal statutes are to be construed
strictly, the word "organize," as used in the Smith Act, is
construed as referring only to acts entering into the creation of a
new organization, and not to acts thereafter performed in carrying
on its activities, even though the latter may loosely be termed
"organizational." Pp. 303-311.
(b) The trial court's mistaken construction of the word
"organize" was not harmless error; the circumstances are such as to
call for application of the rule which requires a verdict to be set
aside where it is supportable on one ground, but not another, and
it is impossible to tell which ground the jury selected. Pp.
354 U. S.
311-312.
2. The Smith Act does not prohibit advocacy and teaching of
forcible overthrow of the Government as an abstract principle,
divorced from any effort to instigate action to that end; the trial
court's charge to the jury furnished wholly inadequate guidance on
this central point in the case, and the conviction cannot be
allowed to stand.
Dennis v. United States, 341 U.
S. 494, distinguished. Pp.
354 U. S.
312-327.
3. The evidence against five of the petitioners is so clearly
insufficient that their acquittal should be ordered, but that as to
the others is such as not to justify closing the way to their
retrial. Pp.
354 U. S.
327-334.
4. Determinations favorable to petitioner Schneiderman made by
this Court in
Schneiderman v. United States, 320 U.
S. 118, a denaturalization proceeding in which he was
the prevailing party, are not conclusive in this proceeding under
the doctrine of collateral estoppel, and he is not entitled to a
judgment of acquittal on that ground.
Federal Trade Commission
v. Cement Institute, 333 U. S. 683. Pp.
354 U. S.
335-338.
225 F.2d 146, reversed and remanded.
Page 354 U. S. 300
MR. JUSTICE HARLAN delivered the opinion of the Court.
We brought these cases here to consider certain questions
arising under the Smith Act which have not heretofore been passed
upon by this Court, and otherwise to review the convictions of
these petitioners for conspiracy to violate that Act. Among other
things, the convictions are claimed to rest upon an application of
the Smith Act which is hostile to the principles upon which its
constitutionality was upheld in
Dennis v. United States,
341 U. S. 494.
These 14 petitioners stand convicted, after a jury trial in the
United States District Court for the Southern District of
California, upon a single count indictment charging them with
conspiring (1) to advocate and teach the duty and necessity of
overthrowing the Government of the United States by force and
violence, and (2) to organize, as the Communist Party of the United
States, a society of persons who so advocate and teach, all with
the intent of causing the overthrow of the Government by force and
violence as speedily as circumstances would permit. Act of June 28,
1940, § 2(a)(1) and (3), 54
Page 354 U. S. 301
Stat. 670, 671, 18 U.S.C. §§ 371, 2385. [
Footnote 1] The conspiracy is alleged to have
originated in 1940 and continued down to the date of the indictment
in 1951. The indictment charged that, in carrying out the
conspiracy, the defendants
Page 354 U. S. 302
and their co-conspirators would (a) become members and officers
of the Communist Party, with knowledge of its unlawful purposes,
and assume leadership in carrying out its policies and activities;
(b) cause to be organized units of the Party in California and
elsewhere; (c) write and publish, in the "Daily Worker" and other
Party organs, articles on the proscribed advocacy and teaching; (d)
conduct schools for the indoctrination of Party members in such
advocacy and teaching, and (e) recruit new Party members,
particularly from among persons employed in the key industries of
the nation. Twenty-three overt acts in furtherance of the
conspiracy were alleged.
Upon conviction, each of the petitioners was sentenced to five
years' imprisonment and a fine of $10,000. The
Page 354 U. S. 303
Court of Appeals affirmed. 225 F.2d 146. We granted certiorari
for the reasons already indicated. 350 U.S. 860.
In the view we take of this case, it is necessary for us to
consider only the following of petitioners' contentions: (1) that
the term "organize," as used in the Smith Act, was erroneously
construed by the two lower courts; (2) that the trial court's
instructions to the jury erroneously excluded from the case the
issue of "incitement to action"; (3) that the evidence was so
insufficient as to require this Court to direct the acquittal of
these petitioners, and (4) that petitioner Schneiderman's
conviction was precluded by this Court's judgment in
Schneiderman v. United States, 320 U.
S. 118, under the doctrine of collateral estoppel.
[
Footnote 2] For reasons given
hereafter, we conclude that these convictions must be reversed and
the case remanded to the District Court with instructions to enter
judgments of acquittal as to certain of the petitioners, and to
grant a new trial as to the rest.
I.
The Term "Organize"
One object of the conspiracy charged was to violate the third
paragraph of 18 U.S.C. § 2385, which provides:
"Whoever organizes or helps or attempts to organize any society,
group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any [government in the United States]
by force or violence . . . [s]hall be fined not more than $10,000
or imprisoned not more than ten years, or both. [
Footnote 3] "
Page 354 U. S. 304
Petitioners claim that "organize" means to "establish," "found,"
or "bring into existence," and that, in this sense, the Communist
Party [
Footnote 4] was
organized by 1945 at the latest. [
Footnote 5] On this basis, petitioners contend that this
part of the indictment, returned in 1951, was barred by the
three-year statute of limitations. [
Footnote 6] The Government, on the other hand, says that
"organize" connotes a continuing process which goes on throughout
the life of an organization, and that, in the words of the trial
court's instructions to the jury, the term includes such things as
"the recruiting of new members and the forming of new units, and
the regrouping or expansion of existing clubs, classes and other
units of any society, party, group or other organization." The two
courts below accepted the Government's position. We think, however,
that petitioners' position must prevail, upon principles stated by
Chief Justice Marshall more than a century ago in
United
States v. Wiltberger, 5 Wheat. 76,
18 U. S. 95-96,
as follows:
"The rule that penal laws are to be construed strictly is
perhaps not much less old than construction itself. It is founded
on the tenderness of the law for the rights of individuals, and on
the plain principle that the power of punishment is vested in the
legislative, not in the judicial, department. It is the
legislature, not the Court, which is to define a crime, and ordain
its punishment. "
Page 354 U. S. 305
"It is said that, notwithstanding this rule, the intention of
the lawmaker must govern in the construction of penal as well as
other statutes. This is true. But this is not a new independent
rule which subverts the old. It is a modification of the ancient
maxim, and amounts to this: that, though penal laws are to be
construed strictly, they are not to be construed so strictly as to
defeat the obvious intention of the legislature. The maxim is not
to be so applied as to narrow the words of the statute to the
exclusion of cases which those words, in their ordinary
acceptation, or in that sense in which the legislature has
obviously used them, would comprehend. The intention of the
legislature is to be collected from the words they employ. Where
there is no ambiguity in the words, there is no room for
construction. The case must be a strong one indeed which would
justify a Court in departing from the plain meaning of words,
especially in a penal act, in search of an intention which the
words themselves did not suggest. To determine that a case is
within the intention of a statute, its language must authorise us
to say so. It would be dangerous indeed to carry the principle that
a case which is within the reason or mischief of a statute is
within its provisions so far as to punish a crime not enumerated in
the statute because it is of equal atrocity, or of kindred
character, with those which are enumerated. If this principle has
ever been recognized in expounding criminal law, it has been in
cases of considerable irritation, which it would be unsafe to
consider as precedents forming a general rule for other cases."
The statute does not define what is meant by "organize."
Dictionary definitions are of little help, for, as those offered us
sufficiently show, the term is susceptible
Page 354 U. S. 306
of both meanings attributed to it by the parties here. [
Footnote 7] The fact that the Communist
Party comprises various components and activities, in relation to
which some of the petitioners bore the title of "Organizer," does
not advance us towards a solution of the problem. The charge here
is that petitioners conspired to organize the Communist Party, and,
unless "organize" embraces the continuing concept contended for by
the Government, the establishing of new units within the Party and
similar activities, following the Party's initial formation in
1945, have no independent significance or vitality so far as the
"organizing" charge is involved. Nor are we here concerned with the
quality of petitioners' activities as such -- that is, whether
particular activities may properly be categorized as
"organizational." Rather, the issue is whether the term "organize,"
as used in this statute, is limited by temporal concepts. Stated
most simply, the problem is to choose between two possible answers
to the question: when was the Communist Party "organized"?
Petitioners contend that the only natural answer to the question is
the formation date -- in this case, 1945. The Government would have
us answer the question by saying that the Party today is still not
completely "organized";
Page 354 U. S. 307
that "organizing" is a continuing process that does not end
until the entity is dissolved.
The legislative history of the Smith Act is no more revealing as
to what Congress meant by "organize" than is the statute itself.
The Government urges that "organize" should be given a broad
meaning, since acceptance of the term in its narrow sense would
require attributing to Congress the intent that this provision of
the statute should not apply to the Communist Party as it then
existed. The argument is that, since the Communist Party as it then
existed had been born in 1919 and the Smith Act was not passed
until 1940, the use of "organize" in its narrow sense would have
meant that these provisions of the statute would never have reached
the act of organizing the Communist Party, except for the
fortuitous rebirth of the Party in 1945 -- an occurrence which, of
course, could not have been foreseen in 1940. This, says the
Government, could hardly have been the congressional purpose, since
the Smith Act as a whole was particularly aimed at the Communist
Party, and its "organizing" provisions were especially directed at
the leaders of the movement.
We find this argument unpersuasive. While the legislative
history of the Smith Act does show that concern about communism was
a strong factor leading to this legislation, it also reveals that
the statute, which was patterned on state anti-sedition laws
directed not against Communists but against anarchists and
syndicalists, was aimed equally at all groups falling within its
scope. [
Footnote 8]
Page 354 U. S. 308
More important, there is no evidence whatever to support the
thesis that the organizing provision of the statute was written
with particular reference to the Communist Party. Indeed, the
congressional hearings indicate that it was the "advocating and
teaching" provision of the Act, rather than the "organizing"
provision, which was especially thought to reach Communist
activities. [
Footnote 9]
Nor do there appear to be any other reasons for ascribing to
"organize" the Government's broad interpretation. While it is
understandable that Congress should have wished to supplement the
general provisions of the Smith Act by a special provision directed
at the activities of those responsible for creating a new
organization of the proscribed type, such as was the situation
involved in the
Dennis case, we find nothing which
suggests that the "organizing" provision was intended to reach
beyond this, that is, to embrace the activities of those concerned
with carrying on the affairs of an already existing organization.
Such activities were already amply covered by other provisions of
the Act, such as the "membership" clause, [
Footnote 10] and the basic prohibition of
"advocacy" in conjunction with the conspiracy provision, and there
is thus no need to stretch the "organizing" provision to fill any
gaps in the statute. Moreover, it is difficult to find any
considerations, comparable to those relating to persons responsible
for creating a new organization, which would have led the Congress
to single out for special treatment those persons occupying
so-called organizational positions in an existing organization,
especially when this same section of the statute proscribes
membership in such an organization without drawing any distinction
between those holding executive office and others.
Page 354 U. S. 309
On the other hand, we also find unpersuasive petitioners'
argument as to the intent of Congress. In support of the narrower
meaning of "organize," they argue that the Smith Act was patterned
after the California Criminal Syndicalism Act; [
Footnote 11] that the California courts
have consistently taken "organize" in that Act in its narrow sense;
[
Footnote 12] and that,
under such cases as
Willis v. Eastern Trust & Banking
Co., 169 U. S. 295,
169 U. S. 304,
169 U. S. 309,
and
Joines v. Patterson, 274 U. S. 544,
274 U. S. 549,
it should be presumed that Congress in adopting the wording of the
California Act intended "organize" to have the same meaning as that
given it by the California courts. As the hearings on the Smith Act
show, however, its particular prototype was the New York Criminal
Anarchy Act, [
Footnote 13]
not the California statute, and the "organizing" provisions of the
New York Act have never been construed by any court. Moreover, to
the extent that the language of the California statute, which
itself was patterned on the earlier New York legislation, might be
significant, we think that little weight can be given to these
California decisions. The
"general rule that adoption of the wording of a statute from
another legislative jurisdiction carries with it the previous
judicial interpretations of the wording . . . is a presumption of
legislative intention . . . which varies in strength with the
similarity of the language, the established character of the
decisions in the jurisdiction from which the language was adopted
and the presence or lack of other indicia of intention."
Carolene Products Co. v.
United States, 323
Page 354 U. S. 310
U.S. 18,
323 U. S. 26.
Here, the three California cases relied on by petitioners were all
decisions of lower courts, and, in the absence of anything in the
legislative history indicating that they were called to its
attention, we should not assume that Congress was aware of
them.
We are thus left to determine for ourselves the meaning of this
provision of the Smith Act, without any revealing guides as to the
intent of Congress. In these circumstances, we should follow the
familiar rule that criminal statutes are to be strictly construed,
and give to "organize" its narrow meaning, that is, that the word
refers only to acts entering into the creation of a new
organization, and not to acts thereafter performed in carrying on
its activities, even though such acts may loosely be termed
"organizational."
See United States v. Wiltberger, supra;
United States v. Lacher, 134 U. S. 624,
134 U. S. 628;
United States v. Gradwell, 243 U.
S. 476,
243 U. S. 485;
Fasulo v. United States, 272 U. S. 620,
272 U. S. 628.
Such indeed is the normal usage of the word "organize," [
Footnote 14] and, until the
decisions below in this case, the federal trial courts in which the
question had arisen uniformly gave it that meaning.
See United
States v. Flynn, unreported (D.C.S.D.N.Y.), No. C. 137-37,
aff'd, 216 F.2d 354, 358;
United States v.
Mesarosh, 116 F.
Supp. 345,
aff'd, 223 F.2d 449, 465 (dissenting
opinion of Hastie, J.);
see also United States v. Dennis,
unreported (D.C.S.D.N.Y.), No. C. 128-87,
aff'd, 183 F.2d
201,
341 U. S. 494.
[
Footnote 15]
Page 354 U. S. 311
We too think this statute should be read
"according to the natural and obvious import of the language,
without resorting to subtle and forced construction for the purpose
of either limiting or extending its operation."
United States v. Temple, 105 U. S.
97,
105 U. S.
99.
The Government contends that, even if the trial court was
mistaken in its construction of the statute, the error was harmless
because the conspiracy charged embraced both "advocacy" of violent
overthrow and "organizing" the Communist Party, and the jury was
instructed that, in order to convict, it must find a conspiracy
extending to both objectives. Hence, the argument is, the jury
must, in any event, be taken to have found petitioners guilty of
conspiring to advocate, and the convictions are supportable on that
basis alone. We cannot accept this proposition for a number of
reasons. The portions of the trial court's instructions relied on
by the Government are not sufficiently clear or specific to warrant
our drawing the inference that the jury understood it must find an
agreement extending to
both "advocacy" and "organizing" in
order to convict. [
Footnote
16] Further, in order to convict, the jury was required, as the
court charged, to find an overt act which was "knowingly done in
furtherance of an object or purpose of the conspiracy charged in
the indictment," and we have no way of knowing whether the overt
act found by the jury was one which it believed to be in
furtherance
Page 354 U. S. 312
of the "advocacy", rather than the "organizing" objective of the
alleged conspiracy. The character of most of the overt acts alleged
associates them as readily with "organizing" as with "advocacy."
[
Footnote 17] In these
circumstances, we think the proper rule to be applied is that which
requires a verdict to be set aside in cases where the verdict is
supportable on one ground, but not on another, and it is impossible
to tell which ground the jury selected.
Stromberg v.
California, 283 U. S. 359,
283 U. S.
367-368;
Williams v. North Carolina,
317 U. S. 287,
317 U. S.
291-292;
Cramer v. United States, 325 U. S.
1,
325 U. S. 36, n.
45.
We conclude, therefore, that, since the Communist Party came
into being in 1945, and the indictment was not returned until 1951,
the three-year statute of limitations had run on the "organizing"
charge, and required the withdrawal of that part of the indictment
from the jury's consideration.
Samuel v. United States,
169 F.2d 787, 798.
See also Haupt v. United States,
330 U. S. 631,
330 U. S. 641,
n. 1;
Stromberg v. California, supra, at
283 U. S.
368.
II
.
Instructions to the Jury
Petitioners contend that the instructions to the jury were
fatally defective in that the trial court refused to charge that,
in order to convict, the jury must find that the advocacy which the
defendants conspired to promote was of a kind calculated to
"incite" persons to action for the forcible overthrow of the
Government. It is argued that advocacy of forcible overthrow as
mere
abstract doctrine is within the free speech
protection of the First
Page 354 U. S. 313
Amendment; that the Smith Act, consistently with that
constitutional provision, must be taken as proscribing only the
sort of advocacy which incites to illegal action, and that the
trial court's charge, by permitting conviction for mere advocacy,
unrelated to its tendency to produce forcible action, resulted in
an unconstitutional application of the Smith Act. The Government,
which at the trial also requested the court to charge in terms of
"incitement," now takes the position, however, that the true
constitutional dividing line is not between inciting and abstract
advocacy of forcible overthrow, but rather between advocacy as
such, irrespective of its inciting qualities, and the mere
discussion or exposition of violent overthrow as an abstract
theory.
We print in the margin the pertinent parts of the trial court's
instructions. [
Footnote 18]
After telling the jury that it could
Page 354 U. S. 314
not convict the defendants for holding or expressing mere
opinions, beliefs, or predictions relating to violent overthrow,
the trial court defined the content of the proscribed advocacy or
teaching in the following terms, which are crucial here:
"Any advocacy or teaching which does not include the urging of
force and violence as the means of overthrowing and destroying the
Government of the United States is not within the issue of the
indictment here, and can constitute no basis for any finding
against the defendants."
"The kind of advocacy and teaching which is charged and upon
which your verdict must be
Page 354 U. S. 315
reached is not merely a desirability, but a necessity that the
Government of the United States be overthrown and destroyed by
force and violence, and not merely a propriety, but a duty to
overthrow and destroy the Government of the United States by force
and violence."
There can be no doubt from the record that, in so instructing
the jury, the court regarded as immaterial, and intended to
withdraw from the jury's consideration, any issue as to the
character of the advocacy in terms of its capacity to stir
listeners to forcible action. Both the petitioners and the
Government submitted proposed instructions which would have
required the jury to find
Page 354 U. S. 316
that the proscribed advocacy was not of a mere abstract doctrine
of forcible overthrow, but of action to that end, by the use of
language reasonably and ordinarily calculated to incite persons to
such action. [
Footnote 19]
The trial court rejected these proposed instructions on the ground
that any necessity for giving them which may have existed at
Page 354 U. S. 317
the time the
Dennis case was tried [
Footnote 20] was removed by this Court's
subsequent decision in that case. The court made it clear in
colloquy with counsel that, in its view, the illegal advocacy was
made out simply by showing that what was said dealt with forcible
overthrow, and that it was uttered with a specific intent to
accomplish that purpose, [
Footnote 21] insisting that all such advocacy was
punishable
Page 354 U. S. 318
"whether it is language of incitement or not." The Court of
Appeals affirmed on a different theory, as we shall see later
on.
We are thus faced with the question whether the Smith Act
prohibits advocacy and teaching of forcible overthrow as an
abstract principle, divorced from any effort to instigate action to
that end, so long as such advocacy or teaching is engaged in with
evil intent. We hold that it does not.
The distinction between advocacy of abstract doctrine and
advocacy directed at promoting unlawful action is one that has been
consistently recognized in the opinions of this Court, beginning
with
Fox v. Washington, 236 U. S. 273, and
Schenck v. United States, 249 U. S.
47. [
Footnote 22]
This distinction was heavily underscored in
Gitlow v. New
York, 268 U. S. 652, in
which the statute involved [
Footnote 23] was nearly identical with the one now before
us, and where the Court, despite the narrow view there taken of the
First Amendment, [
Footnote
24] said:
"The statute does not penalize the utterance or publication of
abstract 'doctrine' or academic discussion having no quality of
incitement to any concrete action. . . . It is not the abstract
'doctrine' of overthrowing organized government by unlawful means
which is denounced by the statute, but the advocacy of action for
the accomplishment of that purpose. . . . This [Manifesto] . . . is
[in] the language of direct incitement. . . . That the jury were
warranted in finding that the Manifesto advocated not merely the
abstract doctrine of overthrowing organized government by force,
violence and
Page 354 U. S. 319
unlawful means, but action to that end, is clear. . . . That
utterances inciting to the overthrow of organized government by
unlawful means, present a sufficient danger of substantive evil to
bring their punishment within the range of legislative discretion,
is clear."
Id. at
268 U. S.
664-669.
We need not, however, decide the issue before us in terms of
constitutional compulsion, for our first duty is to construe this
statute. In doing so, we should not assume that Congress chose to
disregard a constitutional danger zone so clearly marked, or that
it used the words "advocate" and "teach" in their ordinary
dictionary meanings when they had already been construed as terms
of art carrying a special and limited connotation.
See Willis
v. Eastern Trust & Banking Co., supra; Joines v. Patterson,
supra; James v. Appel, 192 U. S. 129,
192 U. S. 135.
The
Gitlow case and the New York Criminal Anarchy Act
there involved, which furnished the prototype for the Smith Act,
were both known and adverted to by Congress in the course of the
legislative proceedings. [
Footnote 25]
Cf. Carolene Products Co. v. United
States, supra. The legislative history of the Smith Act and
related bills shows beyond all question that Congress was aware of
the distinction between the advocacy or teaching of abstract
doctrine and the advocacy or teaching of action, and that it did
not intend to disregard it. [
Footnote 26] The statute was aimed
Page 354 U. S. 320
at the advocacy and teaching of concrete action for the forcible
overthrow of the Government, and not of principles divorced from
action.
The Government's reliance on this Court's decision in
Dennis is misplaced. The jury instructions which were
refused here were given there, [
Footnote 27] and were referred to by this Court as
requiring "the jury to find the facts
essential to
establish the substantive crime." 341 U.S. at
341 U. S. 512
(emphasis added). It is true that, at one point in the late Chief
Justice's opinion, it is stated that the Smith Act "is directed at
advocacy, not discussion,"
id. at
341 U. S. 502,
but it is clear that the reference was to advocacy of action, not
ideas, for, in the very next sentence, the opinion emphasizes that
the jury was properly instructed that there could be no conviction
for "advocacy in the realm of ideas." The two concurring opinions
in that case likewise emphasize the distinction with which we are
concerned.
Id. at
341 U. S. 518,
341 U. S. 534,
341 U. S. 536,
341 U. S. 545,
341 U. S. 546,
341 U. S. 547,
341 U. S. 571,
341 U. S.
572.
In failing to distinguish between advocacy of forcible overthrow
as an abstract doctrine and advocacy of action to that end, the
District Court appears to have been led astray by the holding in
Dennis that advocacy of violent action to be taken at some
future time was enough. It seems to have considered that, since
"inciting" speech is usually thought of as something calculated to
induce immediate action, and since
Dennis held advocacy of
action for future overthrow sufficient, this meant that advocacy,
irrespective of its tendency to generate action, is punishable,
provided only that it is uttered with a specific intent to
accomplish overthrow. In other words, the District Court apparently
thought that
Dennis obliterated the traditional dividing
line between advocacy of abstract doctrine and advocacy of action.
[
Footnote 28]
Page 354 U. S. 321
This misconceives the situation confronting the Court in
Dennis and what was held there. Although the jury's
verdict, interpreted in light of the trial court's instructions,
[
Footnote 29] did not
justify the conclusion that the defendants' advocacy was directed
at, or created any danger of, immediate overthrow, it did establish
that the advocacy was aimed at building up a seditious group and
maintaining it in readiness for action at a propitious time. In
such circumstances, said Chief Justice Vinson, the Government need
not hold its hand
"until the
putsch is about to be executed, the plans
have been laid and the signal is awaited. If Government is aware
that a group aiming at its overthrow is attempting to indoctrinate
its members and to commit them to a course whereby they will strike
when the leaders feel the circumstances permit, action by the
Government is required."
341 U.S. at
341 U. S. 509.
The essence of the
Dennis holding was that indoctrination
of a group in preparation for future violent action, as well as
exhortation to immediate action, by advocacy found to be directed
to "action for the accomplishment" of forcible overthrow, to
violence as "a rule or principle of action," and employing
"language of incitement,"
id. at
341 U. S.
511-512, is not constitutionally protected when the
group is of sufficient size and cohesiveness, is sufficiently
oriented towards action, and other circumstances are such as
reasonably to justify apprehension that action will occur. This is
quite a different thing from the view of the District Court here
that mere doctrinal justification of forcible overthrow, if engaged
in with the intent to accomplish overthrow, is punishable
per
se under the Smith Act. That sort of advocacy, even though
uttered with the hope that it may ultimately lead to violent
revolution, is too remote from concrete action to be regarded
Page 354 U. S. 322
as the kind of indoctrination preparatory to action which was
condemned in
Dennis. As one of the concurring opinions in
Dennis put it:
"Throughout our decisions, there has recurred a distinction
between the statement of an idea which may prompt its hearers to
take unlawful action, and advocacy that such action be taken."
Id. at
341 U. S. 545.
There is nothing in
Dennis which makes that historic
distinction obsolete.
The Court of Appeals took a different view from that of the
District Court. While seemingly recognizing that the proscribed
advocacy must be associated in some way with action, and that the
instructions given the jury here fell short in that respect, it
considered that the instructions which the trial court refused were
unnecessary in this instance because establishment of the
conspiracy, here charged under the general conspiracy statute,
required proof of an overt act, whereas in
Dennis, where
the conspiracy was charged under the Smith Act, no overt act was
required. [
Footnote 30] In
other words, the Court of Appeals thought that the requirement of
proving an overt act was an adequate substitute for the linking of
the advocacy to action which would otherwise have been necessary.
[
Footnote 31] This, of
course, is a mistaken notion, for the
Page 354 U. S. 323
overt act will not necessarily evidence the character of the
advocacy engaged in, nor, indeed, is an agreement to advocate
forcible overthrow itself an unlawful conspiracy if it does not
call for advocacy of action. The statement in
Dennis that
"it is the existence of the conspiracy which creates the danger,"
341 U.S. at
341 U. S. 511,
does not support the Court of Appeals. Bearing in mind that
Dennis, like all other Smith Act conspiracy cases thus
far, including this one, involved advocacy which had already taken
place, and not advocacy still to occur, it is clear that, in
context, the phrase just quoted referred to more than the basic
agreement to advocate.
"The mere fact that [during the indictment period] petitioners'
activities did not result in an attempt to overthrow the Government
by force and violence is, of course, no answer to the fact that
there was a group that was
ready to make the attempt. The
formation by petitioners of such a highly organized conspiracy,
with rigidly disciplined members subject to call when the leaders,
these petitioners, felt that
Page 354 U. S. 324
the time had come
for action, coupled with . . . world
conditions, . . . disposes of the contention that a conspiracy to
advocate, as distinguished from the advocacy itself, cannot be
constitutionally restrained, because it comprises only the
preparation. It is the existence of the conspiracy which creates
the danger. . . . If the ingredients of the reaction are present,
we cannot bind the Government to wait until the catalyst is
added."
341 U.S. at
341 U. S.
510-511 (emphasis supplied). The reference of the term
"conspiracy," in context, was to an agreement to
accomplish overthrow at some future time, implicit in the
jury's findings under the instructions given, rather than to an
agreement to speak.
Dennis was thus not concerned with a
conspiracy to engage at some future time in seditious advocacy, but
rather with a conspiracy to advocate presently the taking of
forcible action in the future. It was action, not advocacy, that
was to be postponed until "circumstances" would "permit." We
intimate no views as to whether a conspiracy to engage in advocacy
in the future, where speech would thus be separated from action by
one further remove, is punishable under the Smith Act.
We think, thus, that both of the lower courts here misconceived
Dennis.
In light of the foregoing we are unable to regard the District
Court's charge upon this aspect of the case as adequate. The jury
was never told that the Smith Act does not denounce advocacy in the
sense of preaching abstractly the forcible overthrow of the
Government. We think that the trial court's statement that the
proscribed advocacy must include the "urging," "necessity," and
"duty" of forcible overthrow, and not merely its "desirability" and
"propriety," may not be regarded as a sufficient substitute for
charging that the Smith Act reaches only advocacy of action for the
overthrow of government by force and violence. The essential
distinction
Page 354 U. S. 325
is that those to whom the advocacy is addressed must be urged to
do something, now or in the future, rather than merely to
believe in something. At best, the expressions used by the
trial court were equivocal, since, in the absence of any
instructions differentiating advocacy of abstract doctrine from
advocacy of action, they were as consistent with the former as they
were with the latter. Nor do we regard their ambiguity as lessened
by what the trial court had to say as to the right of the
defendants to announce their beliefs as to the inevitability of
violent revolution, or to advocate other unpopular opinions.
Especially when it is unmistakable that the court did not consider
the urging of action for forcible overthrow as being a necessary
element of the proscribed advocacy, but rather considered the
crucial question to be whether the advocacy was uttered with a
specific intent to accomplish such overthrow, [
Footnote 32] we would not be warranted in
assuming that the jury drew from these instructions more than the
court itself intended them to convey.
Nor can we accept the Government's argument that the District
Court was justified in not charging more than it did because the
refused instructions proposed by both sides specified that the
advocacy must be of a character reasonably calculated to "incite"
to forcible overthrow, a term which, it is now argued, might have
conveyed to the jury an implication that the advocacy must be of
immediate action. Granting that some qualification of the proposed
instructions would have been permissible to dispel such an
implication, and that it was not necessary even that the trial
court should have employed the particular term "incite," it was
nevertheless incumbent on the court to make clear in some fashion
that the advocacy must be of action and not merely abstract
doctrine. The instructions given not only do not employ the
word
Page 354 U. S. 326
"incite," but also avoid the use of such terms and phrases as
"action," "call for action," "as a rule or principle of action,"
and so on, all of which were offered in one form or another by both
the petitioners and the Government. [
Footnote 33]
What we find lacking in the instructions here is illustrated by
contrasting them with the instructions given to the
Dennis
jury, upon which this Court's sustaining of the convictions in that
case was bottomed. There, the trial court charged:
"In further construction and interpretation of the statute [the
Smith Act], I charge you that it is
not the abstract
doctrine of overthrowing or destroying organized government by
unlawful means which is denounced by this law, but the teaching and
advocacy
of action for the accomplishment of that purpose,
by language reasonably and ordinarily calculated to incite
persons to such action. Accordingly, you cannot find the
defendants or any of them guilty of the crime charged unless you
are satisfied beyond a reasonable doubt that they conspired . . .
to advocate and teach the duty and necessity of overthrowing or
destroying the Government of the United States by force and
violence, with the intent that such teaching and advocacy
be of
a rule or principle of action and by language reasonably and
ordinarily calculated to incite persons to such action, all
with the intent to cause the overthrow . . . as speedily as
circumstances would permit."
(Emphasis added.) 9 F.R.D. 367, 391,
and see 341 U.S.
at
341 U. S.
511-512.
We recognize that distinctions between advocacy or teaching of
abstract doctrines, with evil intent, and that which is directed to
stirring people to action, are often subtle and difficult to grasp,
for, in a broad sense, as Mr. Justice Holmes said in his dissenting
opinion in
Gitlow,
Page 354 U. S. 327
supra, 268 U.S. at
268 U. S. 673:
"Every idea is an incitement." But the very subtlety of these
distinctions required the most clear and explicit instructions with
reference to them, for they concerned an issue which went to the
very heart of the charges against these petitioners. The need for
precise and understandable instructions on this issue is further
emphasized by the equivocal character of the evidence in this
record, with which we deal in Part III of this opinion. Instances
of speech that could be considered to amount to "advocacy of
action" are so few and far between as to be almost completely
overshadowed by the hundreds of instances in the record in which
overthrow, if mentioned at all, occurs in the course of doctrinal
disputation so remote from action as to be almost wholly lacking in
probative value. Vague references to "revolutionary" or "militant"
action of an unspecified character which are found in the evidence
might, in addition, be given too great weight by the jury in the
absence of more precise instructions. Particularly in light of this
record, we must regard the trial court's charge in this respect as
furnishing wholly inadequate guidance to the jury on this central
point in the case. We cannot allow a conviction to stand on such
"an equivocal direction to the jury on a basic issue."
Bollenbach v. United States, 326 U.
S. 607,
326 U. S.
613.
III
.
The Evidence
The determinations already made require a reversal of these
convictions. Nevertheless, in the exercise of our power under 28
U.S.C. § 2106 to "direct the entry of such appropriate judgment . .
. as may be just under the circumstances," we have conceived it to
be our duty to scrutinize this lengthy record [
Footnote 34] with care, in order to determine
whether the way should be left open for a new trial of all or some
of these petitioners. Such a judgment, we
Page 354 U. S. 328
think, should, on the one hand, foreclose further proceedings
against those of the petitioners as to whom the evidence in this
record would be palpably insufficient upon a new trial, and should,
on the other hand, leave the Government free to retry the other
petitioners under proper legal standards, especially since it is by
no means clear that certain aspects of the evidence against them
could not have been clarified to the advantage of the Government
had it not been under a misapprehension as to the burden cast upon
it by the Smith Act. In judging the record by these criteria, we do
not apply to these cases the rigorous standards of review which,
for example, the Court of Appeals would be required to apply in
reviewing the evidence if any of these petitioners are convicted
upon a retrial.
Compare Dennis v. United States, supra, at
341 U. S. 516.
Rather, we have scrutinized the record to see whether there are
individuals as to whom acquittal is unequivocally demanded. We do
this because it is, in general, too hypothetical and abstract an
inquiry to try to judge whether the evidence would have been
inadequate had the cases been submitted under a proper charge, and
had the Government realized that all its evidence must be channeled
into the "advocacy", rather than the "organizing" charge. We think
we may do this by drawing on our power under 28 U.S.C. § 2106,
because, under that statute, we would no doubt be justified in
refusing to order acquittal even where the evidence might be deemed
palpably insufficient, particularly since petitioners have asked in
the alternative for a new trial as well as for acquittal.
See
Bryan v. United States, 338 U. S. 552.
On this basis, we have concluded that the evidence against
petitioners Connelly, Kusnitz, Richmond, Spector, and Steinberg is
so clearly insufficient that their acquittal should be ordered, but
that, as to petitioners Carlson, Dobbs, Fox, Healey (Mrs.
Connelly), Lambert, Lima, Schneiderman, Stack, and Yates, we would
not be justified
Page 354 U. S. 329
in closing the way to their retrial. We proceed to the reasons
for these conclusions.
At the outset, in view of the conclusions reached in
354 U. S. we
must put aside as against all petitioners the evidence relating to
the "organizing" aspect of the alleged conspiracy, except insofar
as it bears upon the "advocacy" charge. That, indeed, dilutes in a
substantial way a large part of the evidence, for the record
unmistakably indicates that the Government relied heavily on its
"organizing" charge. Two further general observations should also
be made about the evidence as to the "advocacy" charge. The first
is that both the Government and the trial court evidently proceeded
on the theory that advocacy of abstract doctrine was enough to
offend the Smith Act, whereas, as we have held, it is only advocacy
of forcible action that is proscribed. The second observation is
that both the record and the Government's brief in this Court make
it clear that the Government's thesis was that the Communist Party,
or at least the Communist Party of California, constituted the
conspiratorial group, and that membership in the conspiracy could
therefore be proved by showing that the individual petitioners were
actively identified with the Party's affairs, and thus,
inferentially, parties to its tenets. This might have been well
enough towards making out the Government's case if advocacy of the
abstract doctrine of forcible overthrow satisfied the Smith Act,
for we would at least have little difficulty in saying on this
record that a jury could justifiably conclude that such was one of
the tenets of the Communist Party, and there was no dispute as to
petitioners' active identification with Party affairs. But, when it
comes to Party advocacy or teaching in the sense of a call to
forcible action at some future time, we cannot but regard this
record as strikingly deficient. At best, this voluminous record
shows but a half dozen or so scattered incidents which, even under
the loosest
Page 354 U. S. 330
standards, could be deemed to show such advocacy. Most of these
were not connected with any of the petitioners, or occurred many
years before the period covered by the indictment. We are unable to
regard this sporadic showing as sufficient to justify viewing the
Communist Party as the nexus between these petitioners and the
conspiracy charged. We need scarcely say that however much one may
abhor even the abstract preaching of forcible overthrow of
government, or believe that forcible overthrow is the ultimate
purpose to which the Communist Party is dedicated, it is upon the
evidence in the record that the petitioners must be judged in this
case.
We must, then, look elsewhere than to the evidence concerning
the Communist Party as such for the existence of the conspiracy to
advocate charged in the indictment. As to the petitioners Connelly,
Kusnitz, Richmond, Spector, and Steinberg, we find no adequate
evidence in the record which would permit a jury to find that they
were members of such a conspiracy. For all purposes relevant here,
the sole evidence as to them was that they had long been members,
officers or functionaries of the Communist Party of California, and
that, standing alone, as Congress has enacted in § 4(f) of the
Internal Security Act of 1950, [
Footnote 35] makes out no case against them. So far as
this record shows, none of them has engaged in or been associated
with any but what appear to have been wholly lawful activities,
[
Footnote 36] or has ever
made a single remark or
Page 354 U. S. 331
been present when someone else made a remark, which would tend
to prove the charges against them. Connelly and Richmond were, to
be sure, the Los Angeles and Executive Editors, respectively, of
the Daily People's World, the West Coast Party organ, but we can
find nothing in the material introduced into evidence from that
newspaper which advances the Government's case.
Moreover, apart from the inadequacy of the evidence to show, at
best, more than the abstract advocacy and teaching of forcible
overthrow by the Party, it is difficult to perceive how the
requisite specific intent to accomplish such overthrow could be
deemed proved by a showing of mere membership or the holding of
office in the Communist Party. We therefore think that, as to these
petitioners, the evidence was entirely too meagre to justify
putting them to a new trial, and that their acquittal should be
ordered.
As to the nine remaining petitioners, we consider that a
different conclusion should be reached. There was testimony from
the witness Foard, and other evidence, tying Fox, Healey, Lambert,
Lima, Schneiderman, Stack, and Yates to Party classes conducted in
the San Francisco area during the year 1946 where there occurred
what might be considered to be the systematic teaching and advocacy
of illegal action which is condemned by the statute. It might be
found that one of the purposes of such classes was to develop in
the members of the group a readiness to engage at the crucial time,
perhaps during war or during attack upon the United States from
without, in such activities as sabotage and street fighting in
order to divert and diffuse the resistance of the authorities and,
if possible, to seize local vantage points. There was also
testimony as to activities in the Los Angeles area, during the
period covered by the indictment, which might be considered to
amount to "advocacy of action," and with which petitioners Carlson
and Dobbs were linked. From the
Page 354 U. S. 332
testimony of the witness Scarletto, it might be found that
individuals considered to be particularly trustworthy were taken
into an "underground" apparatus and there instructed in tasks which
would be useful when the time for violent action arrived. Scarletto
was surreptitiously indoctrinated in methods, as he said, of moving
"masses of people in time of crisis." It might be found, under all
the circumstances, that the purpose of this teaching was to prepare
the members of the underground apparatus to engage in, to
facilitate, and to cooperate with violent action directed against
government when the time was ripe. In short, while the record
contains evidence of little more than a general program of
educational activity by the Communist Party which included advocacy
of violence as a theoretical matter, we are not prepared to say, at
this stage of the case, that it would be impossible for a jury,
resolving all conflicts in favor of the Government and giving the
evidence as to these San Francisco and Los Angeles episodes its
utmost sweep, to find that advocacy of action was also engaged in
when the group involved was thought particularly trustworthy,
dedicated, and suited for violent tasks.
Nor can we say that the evidence linking these nine petitioners
to that sort of advocacy, with the requisite specific intent, is so
tenuous as not to justify their retrial under proper legal
standards. Fox, Healey, Lambert, Lima, Schneiderman, Stack, and
Yates, as members of the State and San Francisco County Boards,
were shown to have been closely associated with Ida Rothstein, the
principal teacher of the San Francisco classes, who also, during
this same period, arranged in a devious and conspiratorial manner
for the holding of Board meetings at the home of the witness Honig
which were attended by these petitioners. It was also shown that,
from time to time, instructions emanated from the Boards or their
members to instructors of groups at lower levels . And while
none
Page 354 U. S. 333
of the written instructions produced at the trial were invidious
in themselves, it might be inferred that additional instructions
were given which were not reduced to writing. Similarly, there was
evidence of close association between petitioners Carlson and Dobbs
and associates or superiors of the witness Scarletto which might be
taken as indicating that these two petitioners had knowledge of the
apparatus in which Scarletto was active. And finally, all of these
nine petitioners were shown either to have made statements
themselves or apparently approved statements made in their presence
which a jury might take as some evidence of their participation
with the requisite intent in a conspiracy to advocate illegal
action.
As to these nine petitioners, then, we shall not order an
acquittal.
Before leaving the evidence, we consider it advisable, in order
to avoid possible misapprehension upon a new trial, to deal briefly
with petitioners' contention that the evidence was insufficient to
prove the overt act required for conviction of conspiracy under 18
U.S.C. § 371. Only 2 of the 11 overt acts alleged in the indictment
to have occurred within the period of the statute of limitations
were proved. Each was a public meeting held under Party auspices at
which speeches were made by one or more of the petitioners
extolling leaders of the Soviet Union and criticizing various
aspects of the foreign policy of the United States. At one of the
meetings, an appeal for funds was made. Petitioners contend that
these meetings do not satisfy the requirement of the statute that
there be shown an act done by one of the conspirators "to effect
the object of the conspiracy." The Government concedes that nothing
unlawful was shown to have been said or done at these meetings, but
contends that these occurrences nonetheless sufficed as overt acts
under the jury's findings.
Page 354 U. S. 334
We think the Government's position is correct. It is not
necessary that an overt act be the substantive crime charged in the
indictment as the object of the conspiracy.
Pierce v. United
States, 252 U. S. 239,
252 U. S. 244;
United States v. Rabinowich, 238 U. S.
78,
238 U. S. 86.
Nor, indeed, need such an act, taken by itself, even be criminal in
character.
Braverman v. United States, 317 U. S.
49. The function of the overt act in a conspiracy
prosecution is simply to manifest "that the conspiracy is at work,"
Carlson v. United States, 187 F.2d 366, 370, and is
neither a project still resting solely in the minds of the
conspirators nor a fully completed operation no longer in
existence. The substantive offense here charged as the object of
the conspiracy is speech, rather than the specific action that
typically constitutes the gravamen of a substantive criminal
offense. Were we to hold that some concrete action leading to the
overthrow of the Government was required, as petitioners appear to
suggest, we would have changed the nature of the offense
altogether. No such drastic change in the law can be drawn from
Congress' perfunctory action in 1948 bringing Smith Act cases
within 18 U.S.C. § 371.
While, upon a new trial, the overt act must be found, in view of
what we have held, to have been in furtherance of a conspiracy to
"advocate," rather than to "organize," we are not prepared to say
that one of the episodes relied on here could not be found to be in
furtherance of such an objective if, under proper instructions, a
jury should find that the Communist Party was a vehicle through
which the alleged conspiracy was promoted. While, in view of our
acquittal of Steinberg, the first of these episodes, in which he is
alleged to have been involved, may no longer be relied on as an
overt act, this would not affect the second episode, in which
petitioner Schneiderman was alleged and proved to have
participated.
For the foregoing reasons we think that the way must be left
open for a new trial to the extent indicated.
Page 354 U. S. 335
IV
.
Collateral Estoppel
There remains to be dealt with petitioner Schneiderman's claim
based on the doctrine of collateral estoppel by judgment.
Petitioner urges that, in
Schneiderman v. United States,
320 U. S. 118, a
denaturalization proceeding in which he was the prevailing party,
this Court made determinations favorable to him which are
conclusive in this proceeding under the doctrine of collateral
estoppel. Specifically, petitioner contends that the
Schneiderman decision determined, for purposes of this
proceeding, (1) that the teaching of Marxism-Leninism by the
Communist Party was not necessarily the advocacy of violent
overthrow of government; (2) that at least one tenable conclusion
to be drawn from the evidence was that the Communist Party desired
to achieve its goal of socialism through peaceful means; (3) that
it could not be presumed, merely because of his membership or
officership in the Communist Party, that Schneiderman adopted an
illegal interpretation of Marxist doctrine, and, finally, (4) that,
absent proof of overt acts indicating that Schneiderman personally
adopted a reprehensible interpretation, the Government had failed
to establish its burden by the clear and unequivocal evidence
necessary in a denaturalization case. In the courts below,
petitioner urged unsuccessfully that these determinations were
conclusive in this proceeding under the doctrine of collateral
estoppel, and entitled him either to an acquittal or to special
instructions to the jury. He makes the same contentions here.
We are in agreement with petitioner that the doctrine of
collateral estoppel is not made inapplicable by the fact that this
is a criminal case, whereas the prior proceedings were civil in
character.
United States v. Oppenheimer, 242 U. S.
85. We agree further that the nonexistence of a fact may
be established by a judgment no less than its
Page 354 U. S. 336
existence; that, in other words, a party may be precluded under
the doctrine of collateral estoppel from attempting a second time
to prove a fact that he sought unsuccessfully to prove in a prior
action.
Sealfon v. United States, 332 U.
S. 575. Nor need we quarrel with petitioner's premise
that the standard of proof applicable in denaturalization cases is
at least no greater than that applicable in criminal proceedings.
Compare Helvering v. Mitchell, 303 U.
S. 391;
Murphy v. United States, 272 U.
S. 630. We assume, without deciding, that substantially
the same standards of proof are applicable in the two types of
cases.
Cf. Klapprott v. United States, 335 U.
S. 601,
335 U. S. 612.
Nevertheless, for reasons that will appear, we think that the
doctrine of collateral estoppel does not help petitioner here.
We differ with petitioner, first of all, in his estimate of what
the
Schneiderman case determined for purposes of the
doctrine of collateral estoppel. That doctrine makes conclusive in
subsequent proceedings only determinations of fact, and mixed fact
and law, that were essential to the decision.
Commissioner v.
Sunnen, 333 U. S. 591,
333 U. S.
601-602;
Tait v. Western Maryland R. Co.,
289 U. S. 620;
The Evergreens v. Nunan, 141 F.2d 927, 928. As we read the
Schneiderman opinion, the only determination essential to
the decision was that Schneiderman had not, prior to 1927, adopted
an interpretation of the Communist Party's teachings featuring
"agitation and exhortation calling for present violent action." 320
U.S. at
320 U. S.
157-159. If it be accepted that the holding extended in
the alternative to the character of advocacy engaged in by the
Communist Party, then the essential finding was that the Party had
not, in 1927, engaged in "agitation and exhortation calling for
present violent action."
Ibid. The Court in
Schneiderman certainly did not purport to determine what
the doctrinal content of "Marxism-Leninism" might be at all times
and in all places. Nor did it establish that the books and
pamphlets introduced against
Page 354 U. S. 337
Schneiderman in that proceeding could not support in any way an
inference of criminality, no matter how or by whom they might
thereafter be used. At most, we think, it made the determinations
we have stated, limited to the time and place that were then in
issue.
It is therefore apparent that the determinations made by this
Court in
Schneiderman could not operate as a complete bar
to this proceeding. Wholly aside from the fact that the Court was
there concerned with the state of affairs existing in 1927, whereas
we are concerned here with the period 1948-1951, the issues in the
present case are quite different. We are not concerned here with
whether petitioner has engaged in "agitation and exhortation
calling for present violent action," whether in 1927 or later. Even
if it were conclusively established against the Government that
neither petitioner nor the Communist Party had ever engaged in such
advocacy, that circumstance would constitute no bar to a conviction
under 18 U.S.C. § 371 of conspiring to advocate forcible overthrow
of government in violation of the Smith Act. It is not necessary
for conviction here that advocacy of "present violent action" be
proved. Petitioner's demand for judgment of acquittal must
therefore be rejected. The decision in
Federal Trade Commission
v. Cement Institute, 333 U. S. 683,
333 U. S.
708-709, is precisely in point, and is controlling.
What we have said we think also disposes of petitioner's
contention that the trial court should have instructed the jury
that certain evidentiary or subordinate issues must be taken as
conclusively determined in his favor. The argument is that the
determinations made in the
Schneiderman case are not
wholly irrelevant to this case, even if they do not conclude it,
and hence that petitioner should be entitled to an instruction
giving those determinations such partial conclusive effect as they
might warrant. We think, however, that the doctrine
Page 354 U. S. 338
of collateral estoppel does not establish any such concept of
"conclusive evidence" as that contended for by petitioner. The
normal rule is that a prior judgment need be given no conclusive
effect at all unless it establishes one of the ultimate facts in
issue in the subsequent proceeding. So far as merely evidentiary or
"mediate" facts are concerned, the doctrine of collateral estoppel
is inoperative.
The Evergreens v. Nunan, 141 F.2d 927;
Restatement, Judgments § 68, comment
p. Whether there are
any circumstances in which the giving of limiting instructions such
as those requested here might be necessary or proper we need not
now determine.
Cf. Bordonaro Bros. Theatres, Inc. v. Paramount
Pictures, Inc., 203 F.2d 676, 678. It is sufficient for us to
hold that, in this case, the matters of fact and mixed fact and law
necessarily determined by the prior judgment, limited as they were
to the year 1927, were so remote from the issues as to justify
their exclusion from evidence in the discretion of the trial
judge.
Since there must be a new trial, we have not found it necessary
to deal with the contentions of the petitioners as to the fairness
of the trial already held. The judgment of the Court of Appeals is
reversed, and the case remanded to the District Court for further
proceedings consistent with this opinion.
It is so ordered.
* Together with No. 7,
Schneiderman v. United States,
and No. 8,
Richmond et al. v. United States, also on
certiorari to the same Court.
[
Footnote 1]
The Smith Act, as enacted in 1940, provided in pertinent part as
follows:
"SEC. 2. (a) It shall be unlawful for any person --"
"(1) to knowingly or willfully advocate, abet, advise, or teach
the duty, necessity, desirability, or propriety of overthrowing or
destroying any government in the United States by force or violence
. . . ;"
"(2) with the intent to cause the overthrow or destruction of
any government in the United States, to print, publish, edit,
issue, circulate, sell, distribute, or publicly display any written
or printed matter advocating, advising, or teaching the duty,
necessity, desirability, or propriety of overthrowing or destroying
any government in the United States by force or violence;"
"(3) to organize or help to organize any society, group, or
assembly of persons who teach, advocate, or encourage the overthrow
or destruction of any government in the United States by force or
violence; or to be or become a member of, or affiliate with, any
such society, group, or assembly of persons, knowing the purposes
thereof."
"
* * * *"
"SEC. 3. It shall be unlawful for any person to attempt to
commit, or to conspire to commit, any of the acts prohibited by the
provisions of this title."
"
* * * *"
"SEC. 5. (a) Any person who violates any of the provisions of
this title shall, upon conviction thereof, be fined not more than
$10,000 or imprisoned for not more than ten years, or both."
Effective September 1, 1948, the Smith Act was repealed, and
substantially reenacted as 18 U.S.C. § 2385, as part of the 1948
recodification. 62 Stat. 808. Section 2385 provided in pertinent
part as follows:
"Whoever knowingly or willfully advocates, abets, advises, or
teaches the duty, necessity, desirability, or propriety of
overthrowing or destroying the government of the United States . .
. by force or violence . . . ; or"
"Whoever, with intent to cause the overthrow or destruction of
any such government, prints, publishes, edits, issues, circulates,
sells, distributes, or publicly displays any written or printed
matter advocating, advising, or teaching the duty, necessity,
desirability, or propriety of overthrowing or destroying any
government in the United States by force or violence . . . ;
or"
"Whoever organizes or helps or attempts to organize any society,
group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any such government by force or
violence; or becomes or is a member of, or affiliates with, any
such society, group, or assembly of persons, knowing the purposes
thereof --"
"Shall be fined not more than $10,000 or imprisoned not more
than ten years, or both. . . ."
For convenience, the original Smith Act and § 2385 will both be
referred to in this opinion as "the Smith Act."
It will be noted that the recodification did not carry into §
2385 the conspiracy section of the Smith Act (§ 3). The latter
provision, however, was in substance restored to § 2385 on July 24,
1956, to apply to offenses committed on or after that date. 70
Stat. 623.
The conspiracy charged in this case was laid under § 3 of the
Smith Act for the period 1940 to September 1, 1948, and for the
period thereafter, down to the filing of the indictment in 1951,
under the general conspiracy statute, 18 U.S.C. § 371, providing in
pertinent part as follows:
"If two or more persons conspire . . . to commit any offense
against the United States, . . . and one or more of such persons do
any act to effect the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more than five years, or
both."
[
Footnote 2]
We find it unnecessary to consider the petitioners' contention
with respect to the District Court's alleged failure to apply the
"clear and present danger" rule, as well as the contention that
their motions for a new trial and a continuance were erroneously
denied.
[
Footnote 3]
See note 1
supra, at p.
354 U. S.
302.
[
Footnote 4]
Except where otherwise indicated, throughout this opinion,
"Communist Party" refers to the present Communist Party of the
United States.
[
Footnote 5]
It is not disputed that the Communist Party, as referred to in
the indictment, came into being no later than July, 1945, when the
Communist Political Association was disbanded and reconstituted as
the Communist Party of the United States. The original Party was
founded in this country in 1919.
[
Footnote 6]
62 Stat. 828, 18 U.S.C. § 3282.
[
Footnote 7]
Both petitioners and the Government cite the following
definitions of "organize" from Webster's New International
Dictionary (2d ed.):
"1. To furnish with organs; to give an organic structure to. . .
. 2. To arrange or constitute in interdependent parts, each having
a special function, act, office, or relation with respect to the
whole; to systematize; to get into working order; as, to organize
an army; to organize recruits."
The Government also gives us the following from Funk &
Wagnall's New Standard Dictionary (1947):
"1. To bring into systematic connection and cooperation as parts
of a whole, or to bring the various parts of into effective
correlation and cooperation; as, to organize the peasants into an
army."
And petitioners cite Black's Law Dictionary, as follows:
"To establish or furnish with organs; to systematize; to put
into working order; to arrange in order for the normal exercise of
its appropriate functions."
[
Footnote 8]
Representative John W. McCormack, one of the leading proponents
of the Smith Act, stated before the Subcommittee of the Committee
on the Judiciary, House of Representatives:
"And, by the way, this bill is not alone aimed at Communists;
this bill is aimed at anyone who advocates the overthrow of
Government by violence and force."
Hearing before Subcommittee No. 2 of the House Committee on the
Judiciary on H.R. 4313 and H.R. 6427, 74th Cong., 1st Sess., May
22, 1935, Serial 5, p. 3.
[
Footnote 9]
Id., passim.
[
Footnote 10]
The "organizing" section,
supra, n 1, also makes it an offense "to be or become a
member of, or affiliate with, any such society, group, or assembly
of persons, knowing the purposes thereof."
[
Footnote 11]
Cal.Stat. 1919, c. 188, West's Ann. Cal.Codes, Penal Code, §
11401.
[
Footnote 12]
See People v. Thurman, 62 Cal. App. 147, 216 P. 394;
People v. Thornton, 63 Cal. App. 724, 219 P. 1020;
People v. Ware, 67 Cal. App. 81, 226 P. 956.
[
Footnote 13]
N.Y.Laws 1902, c. 371, McKinney's N.Y.Laws, Penal Law, §
161.
[
Footnote 14]
In other contexts, state courts have given the term that
meaning.
See State ex rel. Childs v. School District, 54
Minn. 213, 55 N.W. 1122;
Whitmire v. Cass, 213 S.C. 230,
236, 49 S.E.2d 1, 3;
Warren v. Barber Asphalt Pav. Co.,
115 Mo. 572, 576-577, 22 S.W. 490-491;
Commonwealth v. Wm. Mann
Co., 150 Pa. 64, 70, 24 A. 601, 602.
[
Footnote 15]
Following the decision of the Court of Appeals for the Ninth
Circuit in this case, "organize" has been given its wider meaning
by two District Courts in that circuit,
United States v.
Fujimoto, reported on another point, 107 F.
Supp. 865, and
United States v. Huff, as yet
unreported, now pending on appeal to the Court of Appeals. The
Court of Appeals for the Sixth Circuit, following the Ninth
Circuit, has likewise given the term its broader meaning.
Wellman v. United States, 227 F.2d 757.
[
Footnote 16]
The trial court did no more on this score than to charge, in the
language of the indictment, that the conspiracy had two objects,
namely, to advocate and teach forcible overthrow and to organize
the Communist Party as a vehicle for that purpose, and then
instruct the jury that it must find that "the conspiracy charged in
the indictment" had been proved beyond a reasonable doubt.
[
Footnote 17]
Of the 23 overt acts charged, 20 alleged attendance of various
defendants at meetings or conventions, and 3 alleged the issuance
and circulation of "directives" by certain of the defendants. Only
two of the acts alleged were proved. Both were Party meetings
unmarked by any advocacy of the type that the petitioners were
allegedly conspiring to promote.
[
Footnote 18]
The trial court charged:
"As used in the Smith Act and the indictment: "
"(1) the word 'advocate' means to urge or 'to plead in favor of;
. . . to support, vindicate, or recommend publicly . . . ';"
"(2) the word 'teach' means 'to instruct . . . show how . . . to
guide the studies of . . . ';"
"
* * * *"
"The holding of a belief or opinion does not constitute advocacy
or teaching. Hence, the Smith Act does not prohibit persons who may
believe that the violent overthrow and destruction of the
Government of the United States is probable or inevitable from
expressing that belief. Whether such belief be reasonable or
unreasonable is immaterial. Prediction or prophecy is not
advocacy."
"Any advocacy or teaching which does not include the urging of
force and violence as the means of overthrowing and destroying the
Government of the United States is not within the issue of the
indictment here, and can constitute no basis for any finding
against the defendants."
"The kind of advocacy and teaching which is charged and upon
which your verdict must be reached is not merely a desirability,
but a necessity that the Government of the United States be
overthrown and destroyed by force and violence, and not merely a
propriety, but a duty to overthrow and destroy the Government of
the United States by force and violence."
"
* * * *"
"The word 'willfully,' as used in the indictment, means a
statement or declaration made or other act done with the specific
intent to cause or bring about the overthrow and destruction of the
Government of the United States by force and violence as speedily
as circumstances would permit."
"The defendants, in common with all other persons living under
our Constitution, have a general right protected by the First
Amendment to hold, express, teach and advocate opinions, even
though their opinions are rejected by the overwhelming majority of
the American people, and have the further right to organize or
combine peaceably with other persons for the purpose of spreading
and promoting their opinions more effectively."
"Whether you agree with these opinions or whether they seem to
you reasonable, unreasonable, absurd, distasteful or hateful has no
bearing whatever on the right of other persons to maintain them and
to seek to persuade others of their validity."
"No inference that any of the defendants knowingly and willfully
conspired as charged in the indictment, or intended to cause or
bring about the overthrow and destruction of the Government of the
United States by force and violence as speedily as circumstances
would permit, may be drawn from the advocacy or teaching of
socialism or other economic or political or social doctrines, by
reason of any unpopularity of such doctrines or by reason of any
opinion you may hold with respect to whether such doctrines, or the
opinions or beliefs of any of the defendants, are unreasonable,
distasteful, absurd or hateful."
"The defendants, in common with other persons living under our
Constitution, have the right protected by the First Amendment to
criticize our system of Government and the Government itself, even
though the speaking or writing of such criticism may undermine
confidence in the Government or cause or increase discontent. They
have the right also to criticize the foreign policy of the United
States and the role being played by this country in international
affairs, and to praise the foreign policy of other governments and
the role being played by those governments in international
affairs."
"The right of the defendants to enjoy such freedom of expression
is unaffected by whether or not the opinions spoken or published
may seem to you to be crudely intemperate, or to contain
falsehoods, or to be designed to embarrass the Government. No
inference of conspiracy to advocate and teach the necessity and
duty of overthrow and destruction of the Government of the United
States by force and violence, or of intent to cause or bring about
the overthrow and destruction of the Government of the United
States by force and violence as speedily as circumstances would
permit, may be drawn from such expressions alone."
[
Footnote 19]
Petitioners' proposed instructions were:
"Where the Smith Act, the statute which these defendants are
charged with conspiring to violate, speaks of advocating and
teaching the duty and necessity of overthrowing the Government by
force and violence, this refers only to statements which, in the
language of incitement to action, urge immediate action to
overthrow the then existing government under the then existing
circumstances. A statement, on the other hand, that, if our form of
government should change in the future, violent overthrow of the
government would then become necessary and right, is not within the
Smith Act's prohibition, and would not constitute any basis for a
finding against the defendants here."
"
* * * *"
"For purposes of this trial, a person can be said to teach or
advocate the overthrow and destruction of the Government of the
United States by force and violence only when his expressions are
designed to induce action, rather than discussion or belief, and
only when they are expressed in language which, under the
circumstances in which it is used, is reasonably and ordinarily
calculated to incite persons to such action, rather than merely to
discussion or belief."
"
* * * *"
"The burden is on the prosecution to show beyond a reasonable
doubt that a common understanding existed among the alleged
coconspirators as to the specific content of expressions amounting
to advocacy of the overthrow and destruction of the Government by
force and violence. The Government must further show that this
understanding included an understanding that such advocacy would be
in language amounting to incitement to action, and that it would
take place under circumstances such as to lead to a probability
that it would inspire persons to take action toward violent
overthrow."
"The Government's burden is not met by proof that the defendant
shared certain beliefs and made joint efforts to persuade other
persons to adopt them, no matter what you may find the content of
such beliefs to have been, or whether you may agree or disagree
with such beliefs."
The Government's proposed instruction was:
"In further construction and interpretation of the statute, I
charge you that it is not the abstract doctrine of overthrowing or
destroying organized government by unlawful means which is
denounced by this law, but the teaching and advocacy of action for
the accomplishment of that purpose, by language reasonably and
ordinarily calculated to incite persons to such action.
Accordingly, you cannot find the defendants or any of them guilty
of the crime charged unless you are satisfied beyond a reasonable
doubt that they conspired to organize a society, group and assembly
of persons who teach and advocate the overthrow or destruction of
the Government of the United States by force and violence and to
advocate and teach the duty and necessity of overthrowing or
destroying the Government of the United States by force and
violence, with the intent that such teaching and advocacy be of a
rule or principle of action, and by language reasonably and
ordinarily calculated to incite persons to such action, all with
the intent to cause the overthrow or destruction of the Government
of the United States by force and violence as speedily as
circumstances would permit."
[
Footnote 20]
The Government's proposed instruction was that given by the
trial court in the
Dennis case,
341 U. S. 341 U.S.
494.
See p.
354 U. S. 326,
infra.
[
Footnote 21]
Having stated that all advocacy and teaching of forcible
overthrow of Government was punishable "whether it is language of
incitement or not," so long as it was done with the requisite
intent, the court added,
"It seems to me this question of 'incitement to' is involved
around the question of sufficiency of evidence to indicate intent.
The language used is language of philosophy and theory and academic
treatment, rather than language . . . [of] 'incitement to action.'
If the jury should convict on that sort of language, [the] argument
would be the evidence was insufficient to sustain the conviction .
. . ."
[
Footnote 22]
For discussion of the principal cases in this Court on the
subject,
see the several opinions in
Dennis v. United
States, supra.
[
Footnote 23]
The New York Criminal Anarchy Act,
note 13 supra.
[
Footnote 24]
See Dennis v. United States, supra, at
341 U. S.
541.
[
Footnote 25]
Hearings on H.R. 4313 and H.R. 6427, May 22, 1935, at pp. 5, 6,
cited in
note 8
supra.
[
Footnote 26]
At the hearing cited in
note
8 supra, Representative McCormack repeatedly
emphasized that the proscribed advocacy was inciting advocacy. For
example, he stated: ". . . the word
advocacy' means `in a
manner to incite,' as construed by the Supreme Court in the
Gitlow case. . . ." (P. 5.)
". . . Government has a right to make it a crime for a person to
use language specifically inciting to the commission of illegal
acts. . . . [I]t is advocacy in the manner to incite, knowingly to
advocate in a manner to incite to the overthrow of the Government.
. . ."
(P. 15.)
See also pp. 4, 8, 11.
[
Footnote 27]
See p.
354 U. S. 326,
infra.
[
Footnote 28]
See United States v. Schneiderman, 106 F.
Supp. 906, 923.
[
Footnote 29]
The writ of certiorari in
Dennis did not bring up the
sufficiency of the evidence. 340 U.S. 863.
[
Footnote 30]
See note 1
supra.
[
Footnote 31]
The Court of Appeals stated, 225 F.2d at 151:
"Finally [referring to
Dennis], the opinion of the
Court of Appeals and a concurring opinion in the Supreme Court gave
approval of instructions of the trial judge in
Dennis
requiring the jury to find 'language of incitement' was used by the
conspirators there. Another phrase given approval is that the
doctrine of destruction had become a 'rule of action.' In
conjunction with an indictment based upon such a statute
proscribing organization for the purpose of teaching and advocating
overthrow, but which required neither proof of overt acts nor a
specifically planned objective, such precautionary instructions
were well enough. But these expressions of the judges in
instructions in connection with the original statute established no
unalterable requirement that such phrases themselves be used
ipsissimis verbis where the changes in the basic law and
an entirely different indictment predicated upon the conspiracy
statute have rendered admonitions to a jury in such language
supererogatory."
And further, at p. 162:
"The gist of the substantive crime of conspiracy is that an
unlawful combination and agreement becomes a positive crime only
when some of the proved conspirators enter the field of action
pursuant to the criminal design. Therefore, if the conspiracy did
not become a rule of action pursuant to the proscribed intent,
there would have been no violation of the conspiracy statute. The
use of such phrases [as incitement] in instructions might have been
well enough where a violation of the Smith Act alone was charged in
its original form. It would be folly to command imperatively that
these specific phrases be each used in instructions after a trial
on an indictment such as the present one."
It may also be noted that, for the period 1940 to September 1,
1948 (
see note 1
supra), the conspiracy charge here was laid under the old
Smith Act.
[
Footnote 32]
See pp.
354 U. S.
317-318,
supra.
[
Footnote 33]
See note 19
supra.
[
Footnote 34]
The record consists of some 14,000 typewritten pages.
[
Footnote 35]
64 Stat. 987, 50 U.S.C. § 783(f):
"Neither the holding of office nor membership in any Communist
organization by any person shall constitute
per se a
violation of subsection (a) or subsection (c) of this section or of
any other criminal statute."
[
Footnote 36]
While there was evidence that might tend to link petitioner
Richmond to "the conspiracy,"
i.e., evidence of
association by him with other petitioners, and with an individual
who might be found by the jury to have engaged during the same
period in the proscribed advocacy,
see pp.
354 U. S.
332-333,
infra we think that, without more,
such evidence would not justify refusal to direct an acquittal.
MR. JUSTICE BURTON, concurring in the result.
I agree with the result reached by the Court, and with the
opinion of the Court except as to its interpretation of the term
"organize" as used in the Smith Act. As to that, I agree with the
interpretation given it by the Court of Appeals. 225 F.2d 146.
MR. JUSTICE BRENNAN and MR. JUSTICE WHITTAKER took no part in
the consideration or decision of this case.
Page 354 U. S. 339
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
concurring in part and dissenting in part.
I
I would reverse every one of these convictions, and direct that
all the defendants be acquitted. In my judgment, the statutory
provisions on which these prosecutions are based abridge freedom of
speech, press and assembly in violation of the First Amendment to
the United States Constitution.
See my dissent and that of
MR. JUSTICE DOUGLAS in
Dennis v. United States,
341 U. S. 494,
341 U. S. 579,
341 U. S. 581.
Also see my opinion in
American Communications Assn.
v. Douds, 339 U. S. 382,
339 U. S.
445.
The kind of trials conducted here are wholly dissimilar to
normal criminal trials. Ordinarily, these "Smith Act" trials are
prolonged affairs lasting for months. In part, this is attributable
to the routine introduction in evidence of massive collections of
books, tracts, pamphlets, newspapers, and manifestoes discussing
Communism, Socialism, Capitalism, Feudalism and governmental
institutions in general, which, it is not too much to say, are
turgid, diffuse, abstruse, and just plain dull. Of course, no juror
can or is expected to plow his way through this jungle of verbiage.
The testimony of witnesses is comparatively insignificant. Guilt or
innocence may turn on what Marx or Engels or someone else wrote or
advocated as much as a hundred or more years ago. Elaborate,
refined distinctions are drawn between "Communism," "Marxism,"
"Leninism," "Trotskyism," and "Stalinism." When the propriety of
obnoxious or unorthodox views about government is in reality made
the crucial issue, as it must be in cases of this kind, prejudice
makes conviction inevitable except in the rarest circumstances.
Page 354 U. S. 340
II
Since the Court proceeds on the assumption that the statutory
provisions involved are valid, however, I feel free to express my
views about the issues it considers.
First. -- I agree with
354 U. S. that
deals with the statutory term, "organize" and holds that the
organizing charge in the indictment was barred by the three-year
statute of limitations.
Second. -- I also agree with the Court insofar as it
holds that the trial judge erred in instructing that persons could
be punished under the Smith Act for teaching and advocating
forceful overthrow as an abstract principle. But, on the other
hand, I cannot agree that the instruction which the Court indicates
it might approve is constitutionally permissible. The Court says
that persons can be punished for advocating action to overthrow the
Government by force and violence where those to whom the advocacy
is addressed are urged "to do something, now or in the future,
rather than merely to believe in something." Under the Court's
approach, defendants could still be convicted simply for agreeing
to talk, as distinguished from agreeing to act. I believe that the
First Amendment forbids Congress to punish people for talking about
public affairs, whether or not such discussion incites to action,
legal or illegal.
See Meiklejohn, Free Speech and Its
Relation to Self-Government.
Cf. Chafee, Book Review, 62
Harv.L.Rev. 891. As the Virginia Assembly said in 1785, in its
"Statute for Religious Liberty," written by Thomas Jefferson,
"it is time enough for the rightful purposes of civil government
for its officers to interfere when principles break out into overt
acts against peace and good order. . . .*
Cf. Giboney v. Empire
Storage & Ice Co., 336 U. S. 490,
336 U. S.
501-502;
Labor
Page 354 U. S. 341
Board v. Virginia Electric & P. Co., 314 U. S.
469,
314 U. S. 476-480;
Virginia Electric & P. Co. v. Labor Board,
319 U. S.
533,
319 U. S. 539."
Third. -- I also agree with the Court that petitioners,
Connelly, Kusnitz, Richmond, Spector, and Steinberg, should be
ordered acquitted, since there is no evidence that they have ever
engaged in anything but "wholly lawful activities." But, in
contrast to the Court, I think the same action should also be taken
as to the remaining nine defendants. The Court's opinion summarizes
the strongest evidence offered against these defendants. This
summary reveals a pitiful inadequacy of proof to show beyond a
reasonable doubt that the defendants were guilty of conspiring to
incite persons to act to overthrow the Government. The Court
says:
"In short, while the record contains evidence of little more
than a general program of educational activity by the Communist
Party which included advocacy of violence as a theoretical matter,
we are not prepared to say, at this stage of the case, that it
would be impossible for a jury, resolving all conflicts in favor of
the Government and giving the evidence as to these San Francisco
and Los Angeles episodes its utmost sweep, to find that advocacy of
action was also engaged in when the group involved was thought
particularly trustworthy, dedicated, and suited for violent
tasks."
It seems unjust to compel these nine defendants, who have just
been through one four-month trial, to go through the ordeal of
another trial on the basis of such flimsy evidence. As the Court's
summary demonstrates, the evidence introduced during the trial
against these defendants was insufficient to support their
conviction. Under such circumstances, it was the duty of the trial
judge to direct a verdict of acquittal. If the jury had
Page 354 U. S. 342
been discharged so that the Government could gather additional
evidence in an attempt to convict, such a discharge would have been
a sound basis for plea of former jeopardy in a second trial.
See Wade v. Hunter, 336 U. S. 684, and
cases cited there. I cannot agree that "justice" requires this
Court to send these cases back to put these defendants in jeopardy
again in violation of the spirit, if not the letter, of the Fifth
Amendment's provision against double jeopardy.
Fourth. -- The section under which this conspiracy
indictment was brought, 18 U.S.C. § 371, requires proof of an overt
act done "to effect the object of the conspiracy." Originally, 11
such overt acts were charged here. These 11 have now dwindled to 2,
and, as the Court says:
"Each was a public meeting held under Party auspices at which
speeches were made by one or more of the petitioners extolling
leaders of the Soviet Union and criticizing various aspects of the
foreign policy of the United States. At one of the meetings ,an
appeal for funds was made. Petitioners contend that these meetings
do not satisfy the requirement of the statute that there be shown
an act done by one of the conspirators 'to effect the object of the
conspiracy.' The Government concedes that nothing unlawful was
shown to have been said or done at these meetings, but contends
that these occurrences nonetheless sufficed as overt acts under the
jury's findings."
The Court holds that attendance at these lawful and orderly
meetings constitutes an "overt act" sufficient to meet the
statutory requirements. I disagree.
The requirement of proof of an overt act in conspiracy cases is
no mere formality, particularly in prosecutions like these, which,
in many respects are akin to trials for treason. Article III, § 3,
of the Constitution provides
Page 354 U. S. 343
that
"No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open
Court."
One of the objects of this provision was to keep people from
being convicted of disloyalty to government during periods of
excitement, when passions and prejudices ran high, merely because
they expressed "unacceptable" views.
See Cramer v. United
States, 325 U. S. 1,
325 U. S. 48. The
same reasons that make proof of overt acts so important in treason
cases apply here. The only overt act which is now charged against
these defendants is that they went to a constitutionally protected
public assembly where they took part in lawful discussion of public
questions, and where neither they nor anyone else advocated or
suggested overthrow of the United States Government. Many years
ago, this Court said that
"The very idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for
consultation in respect to public affairs and to petition for a
redress of grievances."
United States v. Cruikshank, 92 U. S.
542,
92 U. S. 552.
And see De Jonge v. Oregon, 299 U.
S. 353,
299 U. S.
364-365. In my judgment, defendants' attendance at these
public meetings cannot be viewed as an overt act to effectuate the
object of the conspiracy charged.
III
In essence, petitioners were tried upon the charge that they
believe in and want to foist upon this country a different, and, to
us, a despicable, form of authoritarian government in which voices
criticizing the existing order are summarily silenced. I fear that
the present type of prosecutions are more in line with the
philosophy of authoritarian government than with that expressed by
our First Amendment.
Doubtlessly, dictators have to stamp out causes and beliefs
which they deem subversive to their evil regimes.
Page 354 U. S. 344
But governmental suppression of causes and beliefs seems to me
to be the very antithesis of what our Constitution stands for. The
choice expressed in the First Amendment in favor of free expression
was made against a turbulent background by men such as Jefferson,
Madison, and Mason -- men who believed that loyalty to the
provisions of this Amendment was the best way to assure a long life
for this new nation and its Government. Unless there is complete
freedom for expression of all ideas, whether we like them or not,
concerning the way government should be run and who shall run it, I
doubt if any views, in the long run, can be secured against the
censor. The First Amendment provides the only kind of security
system that can preserve a free government -- one that leaves the
way wide open for people to favor, discuss, advocate, or incite
causes and doctrines however obnoxious and antagonistic such views
may be to the rest of us.
* 12 Hening's Stat. (Virginia 1823), c. 34, p. 85.
MR. JUSTICE CLARK, dissenting.
The petitioners, principal organizers and leaders of the
Communist Party in California, have been convicted for a conspiracy
covering the period 1940 to 1951. They were engaged in this
conspiracy with the defendants in
Dennis v. United States,
341 U. S. 494
(1951). The
Dennis defendants, named as coconspirators but
not indicted with the defendants here, were convicted in New York
under the former conspiracy provisions of the Smith Act, 54 Stat.
671, 18 U.S.C. (1946 ed.) § 11. They have served or are now serving
prison terms as a result of their convictions.
The conspiracy charged here is the same as in
Dennis,
except that here it is geared to California conditions, and
brought, for the period 1948 to 1951, under the general conspiracy
statute, 18 U.S.C. § 371, rather than the old conspiracy section of
the Smith Act. The indictment
Page 354 U. S. 345
charges petitioners with a conspiracy to violate two sections of
the Smith Act, as recodified in 18 U.S.C. § 2385, by knowingly and
willfully (1) teaching and advocating the violent overthrow of the
Government of the United States, and (2) organizing in California
through the creation of groups, cells, schools, assemblies of
persons, and the like, the Communist Party, a society which teaches
or advocates violent overthrow of the Government.
The conspiracy includes the same group of defendants as in the
Dennis case, though petitioners here occupied a lower
echelon in the party hierarchy. They nevertheless served in the
same army and were engaged in the same mission. The convictions
here were based upon evidence closely paralleling that adduced in
Dennis and in
United States v. Flynn, 216 F.2d
354 (C.A.2d Cir.1954), both of which resulted in convictions. This
Court laid down in
Dennis the principles governing such
prosecutions, and they were closely adhered to here, although the
nature of the two cases did not permit identical handling.
I would affirm the convictions. However, the Court has freed
five of the convicted petitioners and ordered new trials for the
remaining nine. As to the five, it says that the evidence is
"clearly insufficient." I agree with the Court of Appeals, the
District Court, and the jury that the evidence showed guilt beyond
a reasonable doubt. [
Footnote 2/1]
It paralleled that in
Dennis and
Flynn, and
was
Page 354 U. S. 346
equally as strong. In any event, this Court should not acquit
anyone here. In its long history, I find no case in which an
acquittal has been ordered by this Court solely on the facts. It is
somewhat late to start in now usurping the function of the jury,
especially where new trials are to be held covering the same
charges. It may be -- although, after today's opinion ,it is
somewhat doubtful -- that, under the new theories announced by the
Court
Page 354 U. S. 347
for Smith Act prosecutions sufficient evidence might be
available on remand. To say the least, the Government should have
an opportunity to present its evidence under these changed
conditions.
I cannot agree that half of the indictment against the remaining
nine petitioners should be quashed as barred by the statute of
limitations. I agree with my Brother BURTON that the Court has
incorrectly interpreted the
Page 354 U. S. 348
term "organize" as used in the Smith Act. The Court concludes
that the plain words of the Act, [
Footnote 2/2] "Whoever organizes or
helps or
attempts to organize any society, group, or assembly of
persons" (emphasis added) embodies only those "acts entering into
the creation of a new organization." As applied to the Communist
Party, the Court holds that it refers only to the reconstitution of
the Party in 1945, and a part of the prosecution here is therefore
barred by the three-year statute of limitations. This construction
frustrates the purpose of the Congress, for the Act was passed in
1940 primarily to curb the growing strength and activity of the
Party. [
Footnote 2/3] Under such an
interpretation, all prosecution would have been barred at the very
time of the adoption of the Act, for the Party was formed in 1919.
If the Congress had been concerned with the initial establishment
of the Party, it would not have used the words "helps or attempts,"
nor the phrase "group,
Page 354 U. S. 349
or assembly of persons." It was concerned with the new Communist
fronts, cells, schools, and other groups, as well as assemblies of
persons, which were being created nearly every day under the aegis
of the Party to carry on its purposes. This is what the indictment
here charges and the proof shows beyond doubt was, in fact, done.
The decision today prevents for all time any prosecution of Party
members under this subparagraph of the Act.
While the holding of the Court requires a reversal of the case
and a retrial, the Court very properly considers the instructions
given by the trial judge. I do not agree with the conclusion of the
Court regarding the instructions, but I am highly pleased to see
that it disposes of this problem, so that, on the new trial,
instructions will be given that will at least meet the views of the
Court. I have studied the section of the opinion concerning the
instructions, and, frankly, its "artillery of words" leaves me
confused as to why the majority concludes that the charge as given
was insufficient. I thought that
Dennis merely held that a
charge was sufficient where it requires a finding that
"the Party advocates the theory that there is a duty and
necessity to overthrow the Government by force and violence. . . .
, not as a prophetic insight or as a bit of . . . speculation, but
as a program for winning adherents and as a policy to be translated
into action"
as soon as the circumstances permit. 341 U.S. at
341 U. S.
546-547 (concurring opinion). I notice however that, to
the majority,
"The essence of the
Dennis holding was that
indoctrination of a group in preparation for future violent action,
as well as exhortation to immediate action, by advocacy found to be
directed to 'action for the accomplishment' of forcible overthrow,
to violence 'as a rule or principle of action,' and employing
'language of incitement,'
id. at
341 U. S.
511-512, is not constitutionally protected when the
group is of sufficient
Page 354 U. S. 350
size and cohesiveness, is sufficiently oriented towards action,
and other circumstances are such as reasonably to justify
apprehension that action will occur."
I have read this statement over and over, but do not seem to
grasp its meaning, for I see no resemblance between it and what the
respected Chief Justice wrote in
Dennis, nor do I find any
such theory in the concurring opinions. As I see it, the trial
judge charged, in essence, all that was required under the
Dennis opinions, whether one takes the view of the Chief
Justice or of those concurring in the judgment. Apparently what
disturbs the Court now is that the trial judge here did not give
the
Dennis charge, although both the prosecution and the
defense asked that it be given. Since he refused to grant these
requests, I suppose the majority feels that there must be some
difference between the two charges, else the one that was given in
Dennis would have been followed here. While there may be
some distinctions between the charges, as I view them, they are
without material difference. I find, as the majority intimates,
that the distinctions are too "subtle and difficult to grasp."
However, in view of the fact that the case must be retried
regardless of the disposition made here on the charges, I see no
reason to engage in what becomes nothing more than an exercise in
semantics with the majority about this phase of the case.
Certainly, if I had been sitting at the trial I would have given
the
Dennis charge, not because I consider it any more
correct, but simply because it had the stamp of approval of this
Court. Perhaps this approach is too practical. But I am sure the
trial judge realizes now that practicality often pays.
I should perhaps add that I am in agreement with the Court in
its holding that petitioner Schneiderman can find no aid from the
doctrine of collateral estoppel.
[
Footnote 2/1]
Petitioners Richmond, Connelly, Kusnitz, Steinberg, and Spector
are set free.
Richmond, at the time of his indictment, had for many years been
the editor-in-chief of the Daily People's World, the official organ
of the Party on the West Coast. He had joined the Party in 1931,
and received his indoctrination in Communist technique at the
offices of the Daily Worker, the official Party paper on the East
Coast. In 1937, he was chosen by the Party's Central Committee to
be managing editor of the Daily People's World, and was transferred
to California. From 1946 through 1948, he regularly attended secret
meetings of the state and county boards of the Party, admission to
which was by identification from a special list of Party members
prepared by the Party chairman or its security chief. Party
strategy was mapped out at "very secret meetings" attended by
Richmond and the core of the Party machinery, including at least
seven of the petitioners here. Richmond served on a special
committee to help develop "preconvention discussion" with
petitioner Yates; he represented the state committee at the 1950
convention; he addressed many Party meetings preaching the
"vanguard role" of the Party and the importance of the People's
World in the Communist movement, and his articles in the paper
urged the "Leninist and Marxist approach."
Connelly, a Party member since at least 1938, was the Los
Angeles editor of the People's World. During the mobilization
effort early in World War II, he devoted his efforts to "building
up sentiment against . . . the war effort" among steel, aircraft,
and shipyard workers. He attended the same secret meetings attended
by Richmond.
There can be no question that the proof sustained the charges
against Richmond and Connelly in the conspiracy. Their newspaper
was the conduit through which the Party announced its aims,
policies, and decisions, sought its funds, and recruited its
members. It is the height of naivete to claim that the People's
World does not publish appeals to its readers to follow Party
doctrine in seeking the overthrow of the Government by force, but
it is stark reality to conclude that such a publication provides an
incomparable means of promoting the Party's aim of forcible seizure
when the time is ripe.
Petitioner Spector has been active in the California Party since
the early 1930's. He taught "Marxism-Leninism" in Party schools and
was "division organizer" in Los Angeles County. He attended
"underground meetings" with petitioners Lambert, Dobbs, Healy,
Carlson, and Schneiderman. The witness Rosser testified that these
meetings were "so hid that you couldn't get to them unless you were
invited and taken there." In 1946, he "conducted classes" for Party
members in Hollywood, and in 1947, as a member of a committee of
three Party officials, examined the witness Russell, a student in
one of his classes, on charges of being a Party "police spy."
Petitioner Kusnitz, following an organizational indoctrination
period in New York City, became a Party leader in California in
1946, served as "section organizer," and later as "organizational
secretary" in Los Angeles. Her position was directly below that of
the local chairman in Party hierarchy. She attended many secret
meetings, and was present at a Party meeting with petitioner Yates
when Yates advocated the necessity of "Soviet support" and
"Marxist-Leninist training" as a means of bringing about the Soviet
"type of government . . . all over the world." She contributed
articles to Communist publications, and was very active in the
"regrouping of . . . clubs into smaller units"; conducting a "six
session leadership training seminar"; carrying on campaigns for
subscriptions to the People's World, and leading the "Party
Building drive" for the recruitment of members.
Petitioner Henry Steinberg, active in the Young Communist
League, and associated with the Party since 1936, was the
"educational director." He took part in the creation of the program
for the Party's training schools in Los Angeles County. His
"education department" sponsored several meetings, one honoring the
25th anniversary of the death of Lenin. He worked with petitioner
Schneiderman, the Party Chairman in California, attended meetings
regularly, was active in circulation drives for the People's World,
and was the principal speaker at many meetings.
[
Footnote 2/2]
18 U.S.C. § 2385.
[
Footnote 2/3]
Congressman McCormack's remarks on the floor of the House of
Representatives on July 29, 1939, during the debate on the Smith
Act, reflect the underlying purpose behind that Act. He stated,
inter alia:
"We all know that the Communist movement has as its ultimate
objective the overthrow of government by force and violence or by
any means, legal or illegal, or a combination of both. That
testimony was indisputably produced before the special committee of
which I was chairman, and came from the lips not of those who gave
hearsay testimony, but of the actual official records of the
Communist Party of the United States, presented to our committee by
the executive secretary of the Communist Party and the leader of
the Communist Party in the United States, Earl Browder. . . .
Therefore, a Communist is one who intends knowingly or willfully to
participate in any actions, legal or illegal, or a combination of
both, that will bring about the ultimate overthrow of our
Government.
He is the one we are aiming at. . . ."
(Emphasis added.) 84 Cong.Rec. 10454.
See also Hearings before Subcommittee No. 3 of the House
Committee on the Judiciary on H.R. 5138, 76th Cong., 1st Sess.
84.