Petitioner was convicted of violating the so-called membership
clause of the Smith Act, which makes a felony the acquisition or
holding of membership in any organization which advocates the
overthrow of the Government of the United States by force or
violence, knowing the purposes thereof. The indictment charged that
from January, 1946, to the date of its filing in 1954, the
Communist Party of the United States was such an organization, and
that, throughout that period, petitioner was a member thereof with
knowledge of the Party's illegal purpose and a specific intent to
accomplish overthrow of the Government "as speedily as
circumstances would permit." The jury was instructed that it could
not convict unless it found that, within the 3-year limitation
period, (1) the Party advocated the violent overthrow of the
Government, in the sense of present "advocacy of action" to
accomplish that end as soon as circumstances were propitious, and
(2) petitioner was an "active" member of the Party, and not merely
"a nominal, passive, inactive or purely technical" member, with
knowledge of the Party's illegal advocacy and a specific intent to
bring about violent overthrow "as speedily as circumstances would
permit."
Held: A judgment of the Court of Appeals sustaining the
conviction is affirmed. Pp.
367 U. S.
205-259.
1. Section 4(f) of the Internal Security Act of 1950, which
provides, in part, that neither "the holding of office nor
membership in any Communist organization by any person shall
constitute
per se a violation" of that or any other
criminal statute, did not repeal
pro tanto the membership
clause of the Smith Act by excluding from the reach of that clause
membership in any Communist organization. Pp.
367 U. S.
206-219.
2. Petitioner's challenge to the constitutionality of the
membership clause of the Smith Act must be overruled. Pp.
367 U. S.
219-230.
(a) The statute was correctly interpreted by the two lower
courts. Pp.
367 U. S.
221-224.
(b) As construed and applied, the membership clause of the Smith
Act does not violate the Fifth Amendment by impermissibly
Page 367 U. S. 204
imputing guilt to an individual merely on the basis of his
associations and sympathies, rather than because of some concrete
personal involvement in criminal conduct. Pp.
367 U. S.
224-228.
(c) As construed and applied, the membership clause of the Smith
Act does not infringe freedom of political expression and
association in violation of the First Amendment. Pp.
367 U. S.
228-230.
3. The evidence was sufficient to sustain the conviction. Pp.
367 U. S.
230-255.
4. None of the trial errors alleged by petitioner raises points
meriting reversal. Pp.
367 U. S.
255-259.
(a) The admission of evidence about the Party's program for
inciting the Negro population in the South to revolt and the
admission of a pamphlet called "I Saw the Truth in Korea," which
contained a very gruesome description of alleged American
atrocities in Korea, were not prejudicial errors warranting
reversal of the conviction. Pp.
367 U. S.
255-257.
(b) The so-called Jencks Act, 18 U.S.C. § 3500, is not
unconstitutional, and its application to petitioner in this case
did not invalidate his conviction. Pp.
367 U. S.
257-258.
(c) Petitioner has made no showing to sustain his contention
that congressional findings as to the character of the Communist
Party contained in the Communist Control Act of 1954 and the
Internal Security Act of 1950 deprived him of a fair trial on that
issue. Pp.
367 U. S.
258-259.
(d) By his failure to comply with Rule 12 of the Federal Rules
of Criminal Procedure, petitioner waived any right he might have
had to question the method of choosing grand jurors, and no
impropriety in the method of choosing grand jurors has been shown.
P.
367 U. S.
259.
260 F.2d 21, affirmed.
Page 367 U. S. 205
MR. JUSTICE HARLAN delivered the opinion of the Court.
Our writ issued in this case (358 U.S. 917) to review a judgment
of the Court of Appeals (260 F.2d 21) affirming petitioner's
conviction under the so-called membership clause of the Smith Act.
18 U.S.C. § 2385. The Act, among other things, makes a felony the
acquisition or holding of knowing membership in any organization
which advocates the overthrow of the Government of the United
States by force or violence. [
Footnote 1] The indictment charged that from January,
1946, to the date of its filing (November 18, 1954), the Communist
Party of the United States was such an organization, and that
petitioner
Page 367 U. S. 206
throughout that period was a member thereof, with knowledge of
the Party's illegal purpose and a specific intent to accomplish
overthrow "as speedily as circumstances would permit."
The validity of this conviction is challenged on statutory,
constitutional, and evidentiary grounds, and further on the basis
of certain alleged trial and procedural errors. We decide the
issues raised upon the fullest consideration, the case having had
an unusually long history in this Court. [
Footnote 2] For reasons given in this opinion, we
affirm the Court of Appeals.
I
STATUTORY CHALLENGE
Petitioner contends that the indictment fails to state an
offense against the United States. The claim is that § 4(f) of the
Internal Security Act of 1950, 64 Stat. 987,
Page 367 U. S. 207
50 U.S.C. § 781
et seq., constitutes a
pro
tanto repeal of the membership clause of the Smith Act by
excluding from the reach of that clause membership in any Communist
organization. Section 4(f) provides:
"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. The fact of the registration of any
person under section 7 or section 8 of this title as an officer or
member of any Communist organization shall not be received in
evidence against such person in any prosecution for any alleged
violation of subsection (a) or subsection (c) of this section or
for any alleged violation of any other criminal statute."
To prevail in his contention, petitioner must, of course, bring
himself within the first sentence of this provision, since the
second sentence manifestly refers only to exclusion from evidence
of the fact of registration, thus assuming that a prosecution may
take place.
We turn first to the provision itself, and find that, as to
petitioner's construction of it, the language is, at best,
ambiguous, if not suggestive of a contrary conclusion. Section 4(f)
provides that membership or office-holding in a Communist
organization shall not constitute "per se a violation of subsection
(a) or subsection (c) of this section or of any other criminal
statute." Petitioner would most plainly be correct if the statute
under which he was indicted purported to proscribe membership in
Communist organizations, as such, and to punish membership
per
se in an organization engaging in proscribed advocacy. But the
membership clause of the Smith Act, on its face, much less as we
construe it in this case, does not do this, for it neither
proscribes membership in Communist organizations, as such, but only
in organizations engaging in advocacy of violent overthrow, nor
punishes membership
Page 367 U. S. 208
in that kind of organization except as to one "knowing the
purposes thereof," and, as we have interpreted the clause, with a
specific intent to further those purposes (
infra pp.
367 U. S.
219-222). We have also held that the proscribed
membership must be active, and not nominal, passive, or theoretical
(
infra pp.
367 U. S.
222-224). Thus, the words of the first sentence of §
4(f) by no means unequivocally demand the result for which
petitioner argues. When we turn from those words to their context,
both in the section as a whole and in the scheme of the Act of
which they are a part, whatever ambiguity there may be must be
resolved, in our view, against the petitioner's contention.
In the context of § 4 as a whole, the first sentence of
subsection (f) does not appear to be a provision repealing in whole
or in part any other provision of the Internal Security Act.
Subsection (a) of § 4 makes it a crime
"for any person knowingly to combine, conspire, or agree with
any other person to perform any act which would substantially
contribute to the establishment within the United States of a
totalitarian dictatorship . . . the direction and control of which
is to be vested in, or exercised by or under the domination or
control of, any foreign government, foreign organization or foreign
individual. . . ."
Subsection (c) makes it a crime for any officer or member of a
"Communist organization" to obtain classified information. We
should hesitate long before holding that subsection (f) operates to
repeal
pro tanto either one of these provisions which are
found in the same section of which subsection (f) is a part, and
indeed the petitioner does not argue for any such quixotic result.
The natural tendency of the first sentence of subsection (f) as to
the criminal provisions specifically mentioned is to provide
clarification of the meaning of those provisions, that is, that an
offense is not made out on proof of
mere membership
Page 367 U. S. 209
in a Communist organization. As to these particularly mentioned
criminal provisions, immunity, such as there is, is specifically
granted in the second sentence only, where it is said that the fact
of registration shall not be admitted in evidence. Yet petitioner
argues that, when we come to the last phrase of the first sentence,
the tag "or . . . any other criminal statute," the operative part
of the sentence, "membership . . . shall [not] constitute per se a
violation," has an altogether different purport and effect. What
operated as a clarification and guide to construction to the
specifically identified provisions is, petitioner argues, a partial
repealer as to the statutes referred to in the omnibus clause at
the end of the sentence.
It seems apparent from the foregoing that the language of §
4(f), in its natural import and context, should not be taken to
immunize members of Communist organizations from the membership
clause of the Smith Act, but rather as a mandate to the courts
charged with the construction of subsections (a) and (c) "or . . .
any other criminal statute" that neither those two named criminal
provisions nor any other shall be construed so as to make
"membership" in a Communist organization "per se a violation."
Indeed, as we read the first sentence of § 4(f), even if the
membership clause of the Smith Act could be taken as punishing
naked Communist Party membership, it would then be our duty under §
4(f) to construe it in accordance with that mandate, certainly not
to strike it down. Although we think that the membership clause, on
its face, goes beyond making mere Party membership a violation, in
that it requires a showing both of illegal Party purposes and of a
member's knowledge of such purposes, we regard the first sentence
of § 4(f) as a clear warrant for construing the clause as requiring
not only knowing membership, but active and purposive membership,
purposive that is as to the organization's criminal ends.
(
Infra, pp.
367 U. S.
219-224.) By its terms, then, subsection (f) does
not
Page 367 U. S. 210
effect a
pro tanto repeal of the membership clause; at
most, it modifies it.
Petitioner argues that, if the § 4(f) provision does not bar
this prosecution under the membership clause, then the phrase "or
of any other criminal statute" becomes meaningless, for there is no
other federal criminal statute that makes this sort of membership a
crime. But the argument assumes the answer. The first sentence was
intended to clarify, not repeal, § 4(a) of the Internal Security
Act. By a parity of reasoning, its effect on "any other criminal
statute" is also clarification, not repeal.
Petitioner's contentions do not stop, however, with the words of
§ 4(f) itself. The supposed partial repeal of the membership clause
by that provision, it is claimed, is a consequence of the latter's
purpose in the whole scheme of the Internal Security Act of 1950,
as illuminated by its legislative history. The argument runs as
follows: the core of the Internal Security Act is its registration
provisions (§§ 7 and 8), requiring disclosure of membership in the
Communist Party following a valid final determination of the
Subversive Activities Control Board as to the status of the Party.
See No. 12,
ante, p.
367 U. S. 1. The
registration requirement would be rendered nugatory by a plea of
self-incrimination, and could only be saved by a valid grant of
immunity from prosecution by reason of any such disclosure.
However, the immunity provided by the second sentence of § 4(f) is
insufficient, in that it forbids only the use of the "fact of . . .
registration" as evidence in any future prosecution, and not also
its employment as a "lead" to other evidence.
See Counselman v.
Hitchcock, 142 U. S. 547;
Blau v. United States, 340 U. S. 332.
Therefore to effectuate the congressional purpose, it becomes
necessary to consider the first sentence of § 4(f) a
pro
tanto repealer of the membership clause of the Smith Act,
thereby assuring effective immunity from the criminal consequences
of registration in this instance.
Page 367 U. S. 211
Although this Court will often strain to construe legislation so
as to save it against constitutional attack, it must not and will
not carry this to the point of perverting the purpose of a statute.
Certainly the section before us cannot be construed as petitioner
argues. The fact of registration may provide a significant
investigatory lead not only in prosecutions under the membership
clause of the Smith Act, but equally probably to prosecutions under
§ 4(a) of the Internal Security Act, let alone § 4(c). Thus, if we
accepted petitioner's argument that § 4(f) must be read as a
partial repealer of the membership clause, we would be led to the
extraordinary conclusion that Congress also intended to immunize
under § 4(f) what it prohibited in these other subsections which it
passed at the same time. Furthermore, the thrust of petitioner's
argument cannot be limited to the membership clause, for it is
equally applicable to any prosecution under any of a host of
criminal provisions where Communist Party membership might provide
an investigatory lead as to the elements of the crime. [
Footnote 3] We cannot attribute any
such sweeping purpose to Congress on the basis of the attenuated
inference offered by petitioner.
Presented as we are with every indication in the statute itself
that Congress had no purpose to bar a prosecution such as this, we
turn to the legislative history of the Internal Security Act of
1950 to see if a different conclusion is indicated.
Section 4(f) is the product of the fusion of provisions
contained in measures conceived by the House and the Senate to deal
with the problem which is the subject of
Page 367 U. S. 212
the present Internal Security Act. Primarily, however, § 4 is
the result of the Senate's efforts. In 1949, Senator Mundt
reintroduced in the Senate a bill, the Mundt-Nixon bill, which had
died in committee the year before. S. 2311, 81st Cong., 1st Sess.
The bill, which was referred to the Committee on the Judiciary,
contained registration provisions similar to those in the present
statute, and a § 4(a), a criminal provision identical to that of
the present § 4(a). In response to an enquiry, the Committee
received a letter from an eminent lawyer, the late John W. Davis of
New York, to the effect that, although the primary purpose of the
bill appears to be "ventilation, rather than prohibition," there
was a question whether
"
mere membership in a Communist political organization,
which is . . . required to register [might] constitute an act such
as section 4(a) proscribes? If so,"
the letter continued,
"is there not inherent contradiction between these sections, and
might not a person called on to register as a member claim that he
would involuntarily incriminate himself by so doing?"
(Emphasis supplied.) S.Rep. No. 1358, 81st Cong., 1st Sess., pp.
43-44. Thus, the Davis letter seemed to address itself only to
self-incrimination under the proscriptions of § 4(a), and only to
the extent that the membership disclosed by registration would,
without more, constitute a violation of § 4(a).
In response to this narrow objection, the Committee drafted the
predecessor of the present § 4(f). That section, also numbered §
4(f), provided that:
"Neither the holding of office nor membership in any Communist
organization by any person shall constitute a violation of
subsection (a) . . . of this section. The fact of the registration
of any person . . . shall not be received in evidence against such
person in any prosecution for any alleged violation of subsection
(a). . . ."
S. 2311, as amended.
Page 367 U. S. 213
The Committee, in reporting the bill out to the Senate, made it
abundantly clear that whatever objections might be made could, in
its view, be overcome by the clarification of § 4(a) contained in §
4(f), to-wit: that
"
mere membership in an organization required to
register is not an overt act such as to bring a person within the
prohibitions of section 4. This amendment was inserted to make
clear the intent of Congress that registration . . . was not
evidence of a violation of section 4 of the bill. [
Footnote 4]"
(Emphasis supplied.) S.Rep. No. 1358,
supra, p. 2. To
the drafters of the original version of the section, then, the
perforce limited immunity of the second sentence of § 4(f),
together with the clarification of the meaning of § 4(a) in the
first sentence, was adequate to deal with the self-incrimination
problem under § 4(a), raised by the Davis letter. There is no
mention of the Smith Act or any other criminal statute as yet, but
the problem of the necessary scope of immunity is no different in
relation to § 4(a) than it would be to such other statutes.
The subsequent history of the section in the Senate reinforces
the conclusion that there was no intent to grant a broad immunity
such as would meet the reasoning of
Counselman v.
Hitchcock. The Mundt-Nixon bill was incorporated in the body
of an omnibus measure, the McCarran bill. S. 4037, 81st Cong., 2d
Sess. When this bill was reported out to the Senate, no further
mention was made in the majority report of the Judiciary
Page 367 U. S. 214
Committee of the sections under consideration. However, Senator
Kilgore's minority report squarely presented two questions as to
the insufficiency of the immunity provisions of § 4(f): (1) that
the immunity was inadequate to meet the
Counselman rule,
and (2) that, in any case, there was no immunity of any sort
granted in respect of the Smith Act. S.Rep. No. 2369, 81st Cong.,
2d Sess., Pt. 2, pp. 12-13. These grounds were urged against the
bill also in debate by its opponents. Senator Humphrey read into
the Record a "brief" prepared by the Justice Department which, in
effect, restated the objections of the minority report. 96
Cong.Rec. 14475, at 14479. Senator Lehman stated the same
objections, and also suggested that the membership clause of the
Smith Act as well as § 4(a) made Communist membership
per
se a crime. This latter contention was vigorously denied by
the proponents of the measure. [
Footnote 5] Thus, the Senate passed
Page 367 U. S. 215
its predecessor version of § 4(f), even though it had had
clearly presented to it constitutional objections to that provision
which are the same as the objections petitioner now makes to a
natural and literal reading of the present statute. There was no
immunity of any kind against Smith Act prosecutions, and only
limited immunity against prosecutions under the comparable
provisions of § 4(a).
The history of the original House measure is likewise relevant
to the issue under consideration. That measure,
Page 367 U. S. 216
the Wood bill, which also provided for registration, contained
no provision similar to § 4(a), but did have a provision similar to
the present § 4(c), forbidding members of Communist organizations
from obtaining classified information. H.R. 9490, 81st Cong., 2d
Sess. The bill included an immunity provision in the same
subsection as the predecessor to present § 4(c), which declared
that:
". . . the fact of the registration of any person . . . shall
not be received in evidence against such person in any prosecution
for any alleged violation . . . of this section."
Once again, the Wood bill demonstrates the same narrow view of
the self-incrimination problem as was evidenced by the Senate bill.
In debate, Congressmen Celler and Marcantonio, opposing the bill,
pointed to the two-fold inadequacy of the immunity provision: its
failure to meet
Counselman and its not reaching other
criminal statutes. 96 Cong.Rec. 13739-13740. The House responded to
these objections by adding the words "or for any alleged violation
of any other . . . criminal statute" at the end of the above-quoted
provision. 96 Cong.Rec. 13761. It is, therefore, even clearer than
in the case of the Senate's action that there was no attempt to
grant complete immunity or to repeal any other statute at least as
to prosecution of Communist Party members, since the House's
immunity provision in terms only dealt with the admission into
evidence of the fact of registration, having no provision
comparable to the first sentence of present § 4(f). That there was
no such provision may perhaps be explained by the fact that there
was no equivalent to § 4(a) in need of clarification.
In conference, the substance of the Senate bill was accepted by
the conferees, including the criminal provision of the present §
4(a). The Senate version of § 4(f) was amended to its present form
by the addition of the
Page 367 U. S. 217
House "or any other criminal statute" language to both the first
and second sentences of the subsection, and by the addition of
"
per se" to the first sentence. Thus, we are asked by
petitioner to hold that, although neither House in its
pre-conference bills evidenced any purpose to repeal the Smith Act
insofar as Communist Party membership was concerned, let alone
other possibly applicable statutes under which registration as a
Party member might produce an investigatory lead (
see
note 3 supra), the
amalgamation of these two bills was intended, though without any
notification by the conferees to either House in their conference
reports, to have this result. Nor does the addition of the words
"
per se" advance petitioner's argument. On its face, the
addition would seem simply to make more explicit the clarifying
purpose of the sentence. In its context of worries that § 4(a) or
the Smith Act makes Communist membership
per se criminal,
and of statements by the proponents of the bills that this was an
unfounded fear as to both provisions, the purely clarifying purpose
of
per se is apparent. Furthermore, we are asked to
attribute this purpose to the conferees, although neither they nor
the proponents of the measure as it finally emerged from conference
said a word about such an important departure from the original
purposes of the two Houses. [
Footnote 6]
Page 367 U. S. 218
Finally, it is worth noting that, after the conference measure
returned to the floor of the Senate, it was attacked by Senator
Kefauver on precisely the same grounds as had been urged against it
in both Houses prior to conference: that the immunity conferred by
the present § 4(f) was too narrowly drawn to save the registration
provisions against an attack under Counselman. 96 Cong.Rec.
15198-15199. This same attack was renewed after the President's
veto, which was overridden by Congress. [
Footnote 7] 96 Cong.Rec. 15553-15554.
Page 367 U. S. 219
The legislative history of § 4(f), therefore, far from weakening
the conclusion flowing from analysis of the terms of the statute
itself, fortifies that analysis at every point. To conclude that
Congress' desire to protect the registration provisions of the
Internal Security Act against pleas of self-incrimination should
prevail over its advertent failure to assure that result at the
expense of wiping out the membership clause of the Smith Act, as
applied to Communists, would require a disregard by this Court of
the evident congressional purpose. Whatever may be the consequences
of that failure upon the Internal Security Act, we are concerned
here solely with the question whether Congress ,by § 4(f), intended
a partial repeal of the membership clause of the Smith Act. We
conclude that it did not, and hold that this prosecution is not
barred by § 4(f) of the Internal Security Act of 1950.
II
CONSTITUTIONAL CHALLENGE TO THE MEMBERSHIP
CLAUSE ON ITS FACE.
Petitioner's constitutional attack goes both to the statute on
its face and as applied. At this point, we deal with the first
aspect of the challenge and with one part
Page 367 U. S. 220
of its second aspect. The balance of the latter, which
essentially concerns the sufficiency of the evidence, is discussed
in the next section of this opinion.
It will bring the constitutional issues into clearer focus to
notice first the premises on which the case was submitted to the
jury. The jury was instructed that, in order to convict, it must
find that, within the three-year limitations period, [
Footnote 8] (1) the Communist Party advocated
the violent overthrow of the Government, in the sense of present
"advocacy of action" to accomplish that end as soon as
circumstances were propitious, and (2) petitioner was an "active"
member of the Party, and not merely "a nominal, passive, inactive
or purely technical" member, with knowledge of the Party's illegal
advocacy and a specific intent to bring about violent overthrow "as
speedily as circumstances would permit."
The constitutional attack upon the membership clause, as thus
construed, is that the statute offends (1) the Fifth Amendment,
[
Footnote 9] in that it
impermissibly imputes guilt to an individual merely on the basis of
his associations and sympathies, rather than because of some
concrete personal involvement in criminal conduct, and (2) the
First Amendment, [
Footnote
10] in that it infringes on free political expression and
association. Subsidiarily, it is argued that the statute cannot be
interpreted as including a requirement of a specific intent to
accomplish violent overthrow, or as requiring that membership in a
proscribed organization must be "active" membership, in the absence
of both or either of which it is said the statute becomes
a
fortiori unconstitutional. [
Footnote 11]
Page 367 U. S. 221
It is further contended that, even if the adjective "active" may
properly be implied as a qualification upon the term "member,"
petitioner's conviction would nonetheless be unconstitutional
because, so construed, the statute would be impermissibly vague
under the Fifth and Sixth Amendments, [
Footnote 12] and, so applied, would, in any event,
infringe the Sixth Amendment, in that the indictment charged only
that Scales was a "member," not an "active" member, of the
Communist Party.
1. Statutory Construction
Before reaching petitioner's constitutional claims, we should
first ascertain whether the membership clause permissibly bears the
construction put upon it below. We think it does.
The trial court's definition of the kind of organizational
advocacy that is proscribed was fully in accord with what was held
in
Yates v. United States, 354 U.
S. 298. [
Footnote
13] And the statute itself requires that a defendant must have
knowledge of the organization's illegal advocacy.
The only two elements of the crime, as defined below, about
which there is controversy are therefore "specific intent" and
"active" membership. As to the former, this Court held in
Dennis v. United States, 341 U. S. 494,
341 U. S.
499-500, that, even though the "advocacy" and
"organizing" provisions of the Smith Act, unlike the "literature"
section (
note 1
supra), did not expressly contain such a specific intent
element, such a requirement was fairly to be implied. We think that
the reasoning of
Dennis
Page 367 U. S. 222
applies equally to the membership clause, and are left
unpersuaded by the distinctions petitioner seeks to draw between
this clause and the advocacy and organizing provisions of the Smith
Act.
We find hardly greater difficulty in interpreting the membership
clause to reach only "active" members. We decline to attribute to
Congress a purpose to punish nominal membership, even though
accompanied by "knowledge" and "intent," not merely because of the
close constitutional questions that such a purpose would raise
(
cf. infra p.
367 U. S. 228;
Yates, supra, at
354 U. S.
319), but also for two other reasons: it is not to be
lightly inferred that Congress intended to visit upon mere passive
members the heavy penalties imposed by the Smith Act. [
Footnote 14] Nor can we assume that
it was Congress' purpose to allow the quality of the punishable
membership to be measured solely by the varying standards of that
relationship as subjectively viewed by different organizations. It
is more reasonable to believe that Congress contemplated an
objective standard fixed by the law itself, thereby assuring an
evenhanded application of the statute.
This Court, in passing on a similar provision requiring the
deportation of aliens who have become members of the Communist
Party -- a provision which rested on Congress' far more plenary
power over aliens, and hence did not press nearly so closely on the
limits of constitutionality as this enactment -- had no difficulty
in interpreting "membership" there as meaning more than the mere
voluntary listing of a person's name on Party rolls.
Galvan v.
Press, 347 U. S. 522;
Rowoldt v. Perfetto, 355 U. S. 115;
Page 367 U. S. 223
see Bridges v. Wixon, 326 U. S. 135. A
similar construction is called for here. [
Footnote 15]
Petitioner's particular constitutional objections to this
construction are misconceived. The indictment was not defective in
failing to charge that Scales was an "active" member of the Party,
for that factor was not, in itself, a discrete element of the
crime, but an inherent quality of the membership element. As such,
it was a matter not for the indictment, but for elucidating
instructions to the jury on what the term "member" in the statute
meant. Nor do we think that the objection on the score of vagueness
is a tenable one. The distinction between "active" and "nominal"
membership is well understood in common parlance (
cf. Boyce
Motor Lines v. United States, 342 U.
S. 337;
United States v. Petrillo, 332 U. S.
1;
Sproles v. Binford, 286 U.
S. 374), and the point at which one shades into the
other is something that goes not to the sufficiency of the statute,
but to the adequacy of the trial court's guidance to the jury by
way of instructions in a particular case.
See note 29 infra. Moreover,
whatever abstract doubts might exist on the matter, this case
presents no such problem. For petitioner's actions on behalf of the
Communist Party most certainly amounted to active membership by
whatever standards one could reasonably anticipate, and he can
therefore hardly be considered to have acted unadvisedly on this
score.
We find no substance in the further suggestion that petitioner
could not be expected to anticipate a construction of the statute
that included within its elements activity and specific intent, and
hence that he was not
Page 367 U. S. 224
duly warned of what the statute made criminal. It is, of course,
clear that the lower courts' construction was narrower, not
broader, than the one for which petitioner argues in defining the
character of the forbidden conduct and that therefore, according to
petitioner's own construction, his actions were forbidden by the
statute. The contention must then be that petitioner had a right to
rely on the statute's, as he construed it, being held
unconstitutional. Assuming,
arguendo, that petitioner's
construction was not unreasonable, no more can be said than that --
in light of the courts' traditional avoidance of constructions of
dubious constitutionality and in light of their role in construing
the purpose of a statute -- there were two ways one could
reasonably anticipate this statute's being construed, and that
petitioner had clear warning that his actions were in violation of
both constructions. There is no additional constitutional
requirement that petitioner should be entitled to rely upon the
statute's being construed in such a way as possibly to render it
unconstitutional. In sum, this argument of a "right" to a literal
construction simply boils down to a claim that the view of the
statute taken below did violence to the congressional purpose. Of
course, a litigant is always prejudiced when a court errs, but
whether or not the lower courts erred in their construction is an
issue which can only be met on its merits, and not by reference to
a "right" to a particular interpretation.
We hold that the statute was correctly interpreted by the two
lower courts, and now turn to petitioner's basic constitutional
challenge.
2. Fifth Amendment
In our jurisprudence guilt is personal, and when the imposition
of punishment on a status or on conduct can only be justified by
reference to the relationship of that
Page 367 U. S. 225
status or conduct to other concededly criminal activity (here
advocacy of violent overthrow), that relationship must be
sufficiently substantial to satisfy the concept of personal guilt
in order to withstand attack under the Due Process Clause of the
Fifth Amendment. Membership, without more, in an organization
engaged in illegal advocacy, it is now said, has not heretofore
been recognized by this Court to be such a relationship. [
Footnote 16] This claim stands, and
we shall examine it, independently of the claim made under the
First Amendment.
Any thought that due process puts beyond the reach of the
criminal law all individual associational relationships, unless
accompanied by the commission of specific acts of criminality, is
dispelled by familiar concepts of the law of conspiracy and
complicity. While both are commonplace in the landscape of the
criminal law, they are not natural features. Rather, they are
particular legal concepts manifesting the more general principle
that society, having the power to punish dangerous behavior, cannot
be powerless against those who work to bring about that behavior.
[
Footnote 17]
Page 367 U. S. 226
The fact that Congress has not resorted to either of these
familiar concepts means only that the enquiry here must direct
itself to an analysis of the relationship between the fact of
membership and the underlying substantive illegal conduct, in order
to determine whether that relationship is indeed too tenuous to
permit its use as the basis of criminal liability. In this
instance, it is an organization which engages in criminal activity,
[
Footnote 18] and we can
Page 367 U. S. 227
perceive no reason why one who actively and knowingly works in
the ranks of that organization, intending to contribute to the
success of those specifically illegal activities, should be any
more immune from prosecution than he to whom the organization has
assigned the task of carrying out the substantive criminal act. Nor
should the fact that Congress has focussed here on "membership,"
the characteristic relationship between an individual and the type
of conspiratorial
quasi-political associations with the
criminal aspect of whose activities Congress was concerned, of
itself require the conclusion that the legislature has traveled
outside the familiar and permissible bounds of criminal
imputability. In truth, the specificity of the proscribed
relationship is not necessarily a vice; it provides instruction and
warning. [
Footnote 19]
What must be met, then, is the argument that membership, even
when accompanied by the elements of knowledge and specific intent,
affords an insufficient quantum of participation in the
organization's alleged criminal activity, that is, an
insufficiently significant form of aid and encouragement to permit
the imposition of criminal sanctions on that basis. It must indeed
be recognized that a person who merely becomes a member of an
illegal organization, by that "act" alone need be doing nothing
more than signifying his assent to its purposes and activities on
one hand, and providing, on the other, only the sort of moral
encouragement which comes from the knowledge that others believe in
what the organization is doing. It may indeed be argued that such
assent and encouragement do fall short of the concrete, practical
impetus given to a criminal enterprise which is lent, for instance,
by a
Page 367 U. S. 228
commitment on the part of a conspirator to act in furtherance of
that enterprise. A member, as distinguished from a conspirator, may
indicate his approval of a criminal enterprise by the very fact of
his membership without thereby necessarily committing himself to
further it by any act or course of conduct whatever.
In an area of the criminal law which this Court has indicated
more than once demands its watchful scrutiny (
see Dennis,
supra, at
341 U. S. 516;
Yates, supra, at
354 U. S. 328,
and
see also Noto v. United States, decided today,
post, p.
367 U. S. 290),
these factors have weight [
Footnote 20] and must be found to be overborne in a total
constitutional assessment of the statute. We think, however, they
are duly met when the statute is found to reach only "active"
members having also a guilty knowledge and intent, and which
therefore prevents a conviction on what otherwise might be regarded
as merely an expression of sympathy with the alleged criminal
enterprise, unaccompanied by any significant action in its support
or any commitment to undertake such action.
Thus, given the construction of the membership clause already
discussed, we think the factors called for in rendering members
criminally responsible for the illegal advocacy of the organization
fall within established, and therefore presumably constitutional,
standards of criminal imputability.
3. First Amendment
Little remains to be said concerning the claim that the statute
infringes First Amendment freedoms. It was settled in
Dennis that the advocacy with which we are here concerned
is not constitutionally protected speech, and it was further
established that a combination to promote
Page 367 U. S. 229
such advocacy, albeit under the aegis of what purports to be a
political party, is not such association as is protected by the
First Amendment. We can discern no reason why membership, when it
constitutes a purposeful form of complicity in a group engaging in
this same forbidden advocacy, should receive any greater degree of
protection from the guarantees of that Amendment.
If it is said that the mere existence of such an enactment tends
to inhibit the exercise of constitutionally protected rights, in
that it engenders an unhealthy fear that one may find himself
unwittingly embroiled in criminal liability, the answer surely is
that the statute provides that a defendant must be proven to have
knowledge of the proscribed advocacy before he may be convicted. It
is, of course, true that
quasi-political parties or other
groups that may embrace both legal and illegal aims differ from a
technical conspiracy, which is defined by its criminal purpose, so
that all knowing association with the conspiracy is a proper
subject for criminal proscription as far as First Amendment
liberties are concerned. If there were a similar blanket
prohibition of association with a group having both legal and
illegal aims, there would indeed be a real danger that legitimate
political expression or association would be impaired, but the
membership clause, as here construed, does not cut deeper into the
freedom of association than is necessary to deal with "the
substantive evils that Congress has a right to prevent."
Schenck v. United States, 249 U. S.
47,
249 U. S. 52.
The clause does not make criminal all association with an
organization which has been shown to engage in illegal advocacy.
There must be clear proof that a defendant "specifically intend[s]
to accomplish [the aims of the organization] by resort to
violence."
Noto v. United States, post at p.
367 U. S. 299.
Thus, the member for whom the organization is a vehicle for the
advancement of legitimate aims and policies does not fall within
the ban of the statute: he
Page 367 U. S. 230
lacks the requisite specific intent "to bring about the
overthrow of the government as speedily as circumstances would
permit." Such a person may be foolish, deluded, or perhaps merely
optimistic, but he is not by this statute made a criminal.
We conclude that petitioner's constitutional challenge must be
overruled. [
Footnote 21]
III
EVIDENTIARY CHALLENGE
Only in rare instances will this Court review the general
sufficiency of the evidence to support a criminal conviction, for
ordinarily that is a function which properly belongs to and ends
with the Court of Appeals. We do so in this case and in No. 9,
Noto v. United States, post, p.
367 U. S. 290 --
our first review of convictions under the membership clause of the
Smith Act -- not only to make sure that substantive constitutional
standards have not been thwarted, but also to provide guidance for
the future to the lower courts in an area which borders so closely
upon constitutionally protected rights.
On this phase of the case, petitioner's principal contention is
that the evidence was insufficient to establish that the Communist
Party was engaged in present advocacy of violent overthrow of the
Government in the sense required by the Smith Act, that is, in
"advocacy of action" for the accomplishment of such overthrow
either immediately or as soon as circumstances proved propitious,
and uttered in terms reasonably calculated to "incite" to such
action.
See Yates v. United States, supra, 367 U. S.
318-322. This contention rests largely on the
proposition that the
Page 367 U. S. 231
evidence on this aspect of the case does not differ materially
from that which the Court in
Yates stated was inadequate
to establish that sort of Party advocacy there.
In
Yates, the Government sought to use the Communist
Party, or at least the California branch of the Party, as the
conspiratorial nexus between various individuals charged, among
other things, with a conspiracy to engage in illegal advocacy. Upon
reversal here for error in the trial court's charge on the nature
of the advocacy proscribed by the Smith Act, this Court, in the
exercise of its powers under 28 U.S.C. § 2106, [
Footnote 22] went on to consider the
adequacy of the evidence for the purpose of determining as to which
defendants an acquittal should be ordered, and as to which ones the
way for a new trial should be left open. In the process, it was
stated that the Government's "Party conspiratorial nexus" theory
was unavailing because the evidence fell short of establishing that
the Party's advocacy constituted "a call to forcible action" for
the accomplishment of immediate or future overthrow, in contrast to
the teaching of mere "abstract doctrine" favoring that end. 354
U.S. at
354 U. S. 329.
At the same time, however, it was found that the record reflected
certain episodes which, it was considered, might permissibly lend
themselves to an inference of illegal advocacy by particular Party
members (
see id. at
354 U. S.
331-333). It was concluded, however, that these and
similar episodes were too "sporadic" and remote (
id.,
354 U. S. 330)
to justify their attribution to the Party, possibly casting its
abstract teaching of the "Communist classics" in a different mold.
Accordingly, the Court directed an acquittal of those defendants
who had not themselves been connected with such episodes.
Page 367 U. S. 232
We agree with petitioner that the evidentiary question here is
controlled in large part by
Yates. The decision in
Yates rested on the view (not articulated in the opinion,
though perhaps it should have been) that the Smith Act offenses,
involving as they do subtler elements than are present in most
other crimes, call for strict standards in assessing the adequacy
of the proof needed to make out a case of illegal advocacy. This
premise is as applicable to prosecutions under the membership
clause of the Smith Act as it is to conspiracy prosecutions under
that statute as we had in
Yates.
The impact of
Yates with respect to this petitioner's
evidentiary challenge is not limited, however, to that decision's
requirement of strict standards of proof.
Yates also
articulates general criteria for the evaluation of evidence in
determining whether this requirement is met. The
Yates
opinion, through its characterizations of large portions of the
evidence which were either described in detail or referred to by
reference to the record, indicates what type of evidence is needed
to permit a jury to find that (a) there was "advocacy of action"
and (b) the Party was responsible for such advocacy.
First,
Yates makes clear what type of evidence is not,
in itself, sufficient to show illegal advocacy. This category
includes evidence of the following: the teaching of
Marxism-Leninism and the connected use of Marxist "classics" as
textbooks; the official general resolutions and pronouncements of
the Party at past conventions; dissemination of the Party's general
literature, including the standard outlines on Marxism; the Party's
history and organizational structure; the secrecy of meetings and
the clandestine nature of the Party generally; statements by
officials evidencing sympathy for and alliance with the U.S.S. R.
It was the predominance of evidence of this type which led the
Court to order the acquittal of several
Yates defendants,
with the comment that they had
Page 367 U. S. 233
not themselves "made a single remark or been present when
someone else made a remark which would tend to prove the charges
against them." However, this kind of evidence, while insufficient,
in itself, to sustain a conviction, is not irrelevant. Such
evidence, in the context of other evidence, may be of value in
showing illegal advocacy.
Second, the
Yates opinion also indicates what kind of
evidence is sufficient. There, the Court pointed to two series of
events which justified the denial of directed acquittals as to nine
of the
Yates defendants. The Court noted that with respect
to seven of the defendants, meetings in San Francisco which were
described by the witness Foard might be considered to be "the
systematic teaching and advocacy of illegal action which is
condemned by the statute." 354 U.S. at
354 U. S. 331.
In those meetings, a small group of members were not only taught
that violent revolution was inevitable, but they were also taught
techniques for achieving that end. For example, the
Yates
record reveals that members were directed to be prepared to convert
a general strike into a revolution and to deal with Negroes so as
to prepare them specifically for revolution. In addition to the San
Francsico meetings, the Court referred to certain activities in the
Los Angeles area "which might be considered to amount to
advocacy of action'" and with which two Yates
defendants were linked. Id. 354 U. S.
331-332. Here again, the participants did not stop with
teaching of the inevitability of eventual revolution, but went on
to explain techniques, both legal and illegal, to be employed in
preparation for or in connection with the revolution. Thus, one
member was "surreptitiously indoctrinated in methods . . . of
moving `masses of people in time of crisis' "; others were told to
adopt such Russian pre-revolutionary techniques as the development
of a special communication system through a newspaper similar to
Pravda. Id. 354 U. S. 332.
Viewed together,
Page 367 U. S. 234
these events described in
Yates indicate at least two
patterns of evidence sufficient to show illegal advocacy: (a) the
teaching of forceful overthrow, accompanied by directions as to the
type of illegal action which must be taken when the time for the
revolution is reached, and (b) the teaching of forceful overthrow,
accompanied by a contemporary, though legal, course of conduct
clearly undertaken for the specific purpose of rendering effective
the later illegal activity which is advocated.
Compare Noto v.
United States, post at
367 U. S.
297-299.
Finally,
Yates is also relevant here in indicating, at
least by implication, the type and quantum of evidence necessary to
attach liability for illegal advocacy to the Party. In discussing
the Government's "conspiratorial nexus theory" the Court found that
the evidence there was insufficient because the incidents of
illegal advocacy were infrequent, sporadic, and not fairly related
to the period covered by the indictment. In addition, the Court
indicated that the illegal advocacy was not sufficiently tied to
officials who spoke for the Party as such.
Thus, in short,
Yates imposes a strict standard of
proof, and indicates the kind of evidence that is insufficient to
show illegal advocacy under that standard, the kind of evidence
that is sufficient, and what pattern of evidence is necessary to
hold the Party responsible for such advocacy. With these criteria
in mind, we now proceed to an examination of the evidence in this
case.
We begin with what was also present in
Yates, the
general evidence as to the doctrines, organization, and tactical
procedures of the Communist Party, exposited by Lautner, the
Government's foundational witness both here and in
Yates.
Together with documentary evidence, Lautner's testimony, based on
high-level participation in Party affairs from 1929 to 1950,
furnished the necessary background in Party theory and terminology
which is
Page 367 U. S. 235
crucial to the proper appreciation of the tenor of Party
pronouncements, for these pronouncements, taken out of this larger
context, might appear harmless and peaceable without in reality
being so. The distinction that was drawn in
Yates between
theoretical advocacy and advocacy of violence as a rule of action
is, of course, basic, but when the teaching is carried out in a
special vocabulary, knowledge of that vocabulary is at least
relevant to an understanding of the quality and tenor of the
teaching.
Lautner's testimony, having covered the pre-war history of the
Party, passed to the 1945 reconstitution of the organization. Prior
to that time the Party, as the Communist Political Association, had
adhered to the position that the change to a Communist society
could be achieved through peaceful, democratic means. The
reconstitution, which was finally approved at a National Convention
in July of 1945, involved a return to the principles of
Marxism-Leninism. As found in the so-called Communist classics, the
adoption of a program of industrial concentration, the increased
effort among Negroes, especially in the South, the complete
repudiation of the former Party leader, Browder, and his doctrine
of "revisionism," all signified, so Lautner testified, that the
United States was henceforth to be regarded as no exception to the
teachings of Lenin that communism could only be achieved in an
industrialized nation such as this by resort to violent revolution,
and that a belief in peaceful means was foolishness or treachery.
Lautner testified that the industrial concentration program, as
well as the emphasis on the Negro minority, was an articulation of
this doctrine, in that it involved a concentration on those
elements in society which the Party believed could do most damage,
in time of crisis, to the existing social fabric in relation to
their numbers, and that victory at the polls was not its concern.
Lautner testified that it was further resolved at the 1945 National
Convention that, in order to implement
Page 367 U. S. 236
the principles of the reconstitution, a program of thorough
reeducation of the whole Party membership should be undertaken, and
Lautner himself was charged with the duty of carrying out this
reeducation as a District Organizer and State Chairman. The balance
of Lautner's testimony was devoted to a detailed description of the
elaborate underground "apparatus" which he and others were charged
with setting up in the various portions of the country assigned to
them.
Mrs. Hartle testified as to her activities in the Party,
primarily in the Pacific Northwest area, from 1934 to approximately
1952. Mrs. Hartle confirmed, in many respects, Lautner's testimony
as to Party teaching and doctrine throughout this period. After the
1945 reconstitution, she was sent to the National Training School
in New York, where thirty "officers and functionaries" from various
parts of the country were "re-educated" in accordance with the
decisions and resolutions of the 1945 Convention. She was taught
about "dialectical materialism," and the theory of struggle between
the capitalist class and the working class. They were taught
"and reference was made to a quotation . . . that it is the duty
of a revolutionary not to try to gloss over this class struggle or
to try to compromise it, but to unravel it, to allow this class
struggle and help this class struggle to unfold, the clash to
proceed."
The class was told that "it is the duty of a Marxist-Leninist to
be a revolutionary, and not a reformist." They were further
instructed "that the United States . . . was objectively at the
stage for Proletarian revolution," that the time for the
proletariat revolution would come when the objective conditions of
political or economic crisis coincided with the "subjective
condition" of a Communist Party which was large enough, with enough
"influence" among the working classes, "to give the necessary
leadership to lead to the seizure of power."
Page 367 U. S. 237
Much of the testimony summarized so far may indeed be considered
to relate to the mere theory of revolution, abstract advocacy.
However, the teaching at the National Training School also
descended to a lower level of generality. Mrs. Hartle was told that
the "role" of the Communist Party was "preparing the workers and
the people to be ready to be able to take power, to know how to
take power" when a "revolutionary situation arose." At that time,
"the plan and program of the Party would be to lead the working
class to seize power" and "to smash the Bourgeois state machine."
With respect to this latter task, the class was told:
". . . the Bourgeois state machine is not smashed after the
seizure of power, but in the course of seizing power that the
armies, the police, the prisons have to be dealt with and smashed
up and rendered inoperative in the course of the seizure of power,
that other matters, that some other matters in replacing the, a
state, such as the, some of the administrative apparatus and some
other matters would take a longer period of time, but the forcible
elements of the capitalist state must be smashed in the course of
taking power, but some other things like reorganizing the banking
system, or some matters like that, could be done in a somewhat
longer process."
In pressing toward the fulfillment of the "subjective
conditions" necessary for such action, Mrs. Hartle was taught that
"the struggles and activities of the Communist Party prepare the
working class for this act of seizure of power," and the history of
the Russian Communist Party and Revolution was taught in the school
and the events and principles of this history were constantly
related to contemporary conditions in the United States. Thus, for
example, the class was told that the coalition of workers and
peasants which had proved so successful
Page 367 U. S. 238
in Russia should have its counterpart in America in a coalition
of workers and Negroes, especially in the South. Following her
classes at the National Training School, Mrs. Hartle returned to
Washington, where she helped to recruit and organize in
"underground fashion" the employees of the Boeing Aircraft Plant in
that State. At the same time, Mrs. Hartle was active in Party
schools in her area. She testified that she had both been
instructed and had herself taught:
". . . the means by which the ultimate goal might be attained
was that those means would be forcible. The teaching was that any
teaching, any theory of a peaceful road to socialism, or a growing
over from capitalism to socialism was a betrayal of the working
class and that the Communist Party leading the working class would
have to arm it in the first place with the theory that the workers
must know and must be prepared to know that they can only take
power forcibly."
"
* * * *"
"The action that Communist Party members should take in
preparing for the ultimate goal that I was taught and that I taught
were to build the Communist Party as the vanguard party of the
working class, a theoretically equipped party, equipped with the
theory of Marxism-Leninism, a highly organized party that could act
as a unit, as a monolithic whole, with democratic centralism, the
principle guiding it . . . , and that the Communist Party should be
the connection between the vanguard and the working class millions
in this preparation by working with and winning the confidence of
the working class and allies of the working class, such as, the
Negro people, the poor farmers, other national groups, and in this
way, in the course of struggle, constant struggle taking the forms
of strikes
Page 367 U. S. 239
and demonstrations and picket lines and marches and various
kinds of activities to train the working class and the people for
revolutionary battie."
The witness Duran, who attended a Party School in Los Angeles in
1951, described what he had been taught by one Moreau, a member of
the National Education Commission of the Communist Party:
"He divided in his explanation the . . . Proletariat . . . as
being divided into two groups. Those in industry that would lead
the revolution, and those in agriculture that would follow, and
speaking about the revolution, Professor Moreau stated to the class
in a very emotional manner that he could see himself carrying a gun
against the capitalist S.O.B.'s and explained to the class it was
all based on the science of Marx and Lenin."
"
* * * *"
"In discussing the Proletarian Revolution more thoroughly,
Professor Moreau explained throughout the school that the
Proletarian Revolution would only come about if a Bolshevik rank
and file, the sincere Communists, would get out and teach, and
teach the people, the desirability of changing the system and the
necessity of changing them, and in doing that, we had to teach the
people that you cannot change the capitalist system to a Socialist
system to socialism successfully, the peaceful way; it had to be
erupted from, and had to be taken away by force and violence, away
from them and the entire state machinery of the Bourgeoisie
smashed, the F.B.I., the courts and the Army and the Navy, whatever
was on it, what -- the entire instrumentality of the Bourgeoisie
had to be smashed and substituted by the Proletarian
machinery."
". . . and during the period of the revolution the transition,
the violent transition, we had to make
Page 367 U. S. 240
mass work to get the masses away from the Bourgeoisie so they
would not join a counterrevolution movement."
"It meant, after the people of the Communist Party, the
vanguard, had become satisfied, that the Bourgeoisie machinery was
smashed, and they were in control, then they also had to collect
guns from the people and control the people themselves."
"Q. Do I understand, Mr. Moreau [
sic] that, during this
period of revolution, the people, that is, the masses of the
people, would be carrying guns?"
"A. Yes, sir."
"Q. And after the revolution do I understand that the Party
would go around and collect these guns and take them away from the
people?"
"A. Yes, sir; take them away from those that helped them
overthrow the capitalist system in order to assure the revolution
itself. . . ."
"Immediately after the overthrow of the capitalist system and
establishment of the dictatorship of the Proletariat, it became
necessary for a Communist to establish Red Army in this country,
not only to secure and maintain the dictatorship of the
Proletariat, but control the people as well, and those people that
did help overthrow the Government would not have any civil rights
whatsoever, no voting rights, or anything; they would be dished out
to them according to the way they felt, way they fell in with the
Communist office by the dictatorship."
"Q. Now, Mr. Duran, what, if anything, did Mr. Moreau teach you
in this school about the role that would be played by the Communist
Party during this period of revolution when the Government would be
overthrown by force and violence?"
"A. The role of the Communist Party, and specifically within the
Communist Party, the Bolsheviks
Page 367 U. S. 241
was to play a vanguard role, a leading role; that is explained
scientifically in that so that first we teach the people the
desirability of overthrowing them and teach them the, it could only
be done through the Proletarian Revolution, and then, when the time
is ripe, we could stampede them against the capitalist class."
Duran also testified to what he had been taught by Art Berry,
District Organizer for seven States, in a Colorado school in
1952:
". . . we were discussing the scientific application of Marx and
Lenin to the transition period between capitalism and socialism,
and he demonstrated this with the kettle of water, that you could
put a quantitative amount of water in a kettle and set it
somewhere, nothing would happen, just like the masses, nothing does
happen."
". . . [he] said, however, if you get that same amount, same
kettle with the same amount of water in it, and put fire underneath
it, then you begin to get quantitative changes, and eventually it
reaches a nodule point to where it has a qualitative and abrupt
transition into steam. He continued, same applied to the
development of the revolution in this sense, the American people
will not and cannot make a successful change over from capitalism
to socialism by themselves, like the fire underneath the water, the
Communist Party teaches and leads them to where when the society
reaches that nodule point, the Communist people teaches the people
before and then leads them to make that abrupt change into the
society of socialism."
"
* * * *"
"Substantially, within the same explanation of violent overthrow
of the Government . . . , he stated
Page 367 U. S. 242
that not only would it be that, but that we would have to set up
barricades, establish a central point from where we would
participate from; he stated the 'we,' literally speaking, 'we,'
would have to have a central point, because, during the revolution,
it may become necessary to ebb, retreat in certain battles, and we
would have to learn to retreat in an organizational way and a
correct way. It was essential to learn to ebb as it was to flow on
the revolution."
"In the ebbing, we were to see that we ebb before the enemy
wiped everybody out. Ebbing to the central point that had been
barricaded, reorganization, and then at the correct time start
flowing forward in the revolution."
The witness Obadiah Jones testified concerning a Party Training
School in St. Louis which he attended in 1947. Jones was taught
"that the only way the national problem could be solved would be in
connection with the Proletariat Revolution." Jones was also
instructed as to the nature of a Communist army:
"A. He said general staff of an army was different from the
Communist Party . . . general staff of an army operated from a safe
spot from behind the line and led the army from a far distance, and
that the Communist Party went forth and fought with the
workers."
"Q. Did he say anything with reference to the techniques?"
"A. Yes, he said that you couldn't be a good leader without
knowing all of the techniques of fighting."
"Q. Did he say anything with respect to carrying out
instructions?"
"A. Yes, sir."
"Q. What did he say in that connection?"
"A. He said that capitalists in the army did not
Page 367 U. S. 243
carry out the instructions in full, but the Communists did,
irregardless of what the cost would be, they would carry out
instructions completely."
At the final session, the students were required by the
instructor to take a pledge:
"The pledge was each of us are Communists or members of the
Party and each of us have a responsibility and we must carry out
our responsibility and work for the interests of the Party and its
recipients and carry out the full will of the Party even though it
meant to fight and to kill, we must carry out the demands of the
Party and all of them."
The witnesses Clontz, Childs, and Reavis testified primarily as
to their dealings with petitioner Scales. We regard this testimony,
which finds no counterpart in the
Yates record with
respect to any of the defendants whose acquittal was directed, as
being of special importance in two ways: it supplies some of the
strongest and most unequivocal evidence against the Party based on
the statements and activities of a man whose words and deeds, by
virtue of his high Party position, carry special weight in
determining the character of the Party from the standpoint of the
Smith Act, and it appears clearly dispositive as to the quality of
petitioner's Party membership, and his knowledge and intent, when
we come to consider him not as a Party official, but as the
defendant in this case. [
Footnote 23]
Page 367 U. S. 244
In 1948, Ralph C. Clontz, Jr., then a student at Duke Law
School, undertook to furnish the F.B.I. with information he had
gained about Communist Party activities in North Carolina, and to
volunteer his services in attempting to penetrate the Party to
acquire further information. As a result, in September of that
year, Clontz sent a postcard to petitioner, informing him that he
was a law student and that he was interested in communism.
Petitioner replied by sending Clontz "a large cardboard box filled
with Communist literature." An accompanying letter, headed
"Carolina District Communist Party U.S.A." with the notation
"Junius Scales, Chairman," explained:
"Under separate cover, I have already sent you a rather varied
sample of our literature. I hope you will give it close attention.
If I can discuss any matter relating to my Party and its program
with you in person, I will be glad to do so."
Several days later, Clontz went to visit petitioner, and thus
began a relationship which was to bring him into intimate contact
with the Communist Party, its teachings, purposes and
activities.
At an early meeting between the two, petitioner told Clontz that
it was impossible for the Communist Party to succeed to power
through educating the people in this country and gaining their
votes at the polls, but that a forceful revolution would be
necessary. At a later meeting, the discussion was not limited to
the theoretical inevitability of revolution, but went beyond the
theory itself to an explanation of "basic strategy" which the
Page 367 U. S. 245
Communist Party was using to give concrete foundation to the
theory,
i.e., to bringing about the revolution:
"The defendant [petitioner] explained that basically their
strategy was bottomed on a concept that there were two classes of
people in this country, that could be used by the Communist Party
to foment a revolution."
"The first class he termed the working class or Proletariat,
working class, he said, had as its natural born leaders or
vanguard, the Communist Party."
"The second class, he described, in this country was what he
termed the Negro nation. The Negro nation he described as a
separate nation in what he termed the Black Belt, including
thirteen Southern States, and the strategy of the Communist Party
was to bring the working class, led by the Communist Party, and
what he termed the Negro nation, together, to bring about a
forceful overthrow of the Government."
"Now Scales and the Communist Party taught that the basic
strategy of the Communist Party would never change, but that
tactics might be altered as the situation changed."
On petitioner's invitation, Clontz joined the Communist Party on
January 17, 1950. He was not assigned to a particular group, but
became a member "at large," in order to continue his instruction
under petitioner. In the course of this instruction, petitioner
repeatedly told Clontz of the necessity for revolution to bring
about the Dictatorship of the Proletariat. Scales analogized the
situation in the United States to that, in Russia prior to the 1917
Revolution. He pointed out that revolution would be "easier" in
this country than it had been in Russia:
"that, while in the Soviet Union there had been no one to help
the Soviet Party, that, in this country,
Page 367 U. S. 246
when the revolution started, we would have the benefit of the
help from the mother country, Russia, in bringing about our own
revolution, because part of the purposes of the Communist Party in
the Soviet Union was international in scope, and that we naturally
would continue to receive help in all circumstances from the Soviet
Party when the revolution was started here in this country."
Petitioner explained that the Soviet Union could not be expected
to land troops to start a revolution here. A similar procedure had
been unsuccessful in China. Rather, he said "that we Communists in
this country would have to start the revolution, and we would have
to continue fighting it," but that the Soviet Union would aid the
Communist Party in this endeavor by furnishing it "with experienced
revolutionaries from Russia." [
Footnote 24] He added that,
"if the United States declared war on the Communists in their
revolution, then the Soviet Union would land troops, and he said
that would be a bloody time for all."
When asked
Page 367 U. S. 247
by Clontz when all this would occur, Scales noted that a
"depression would greatly accelerate the coming of the revolution"
if the Communists used it properly to prepare the masses of the
people.
Petitioner arranged for Clontz to be awarded a scholarship to
study in New York at the Jefferson School of Social Science, an
official Communist Party School, during the month of August, 1950.
Because Clontz arrived at a time when few scheduled courses were
being offered, the bulk of his training at the school was received
in private instruction from Doxey A. Wilkerson, the teacher with
whom petitioner had communicated in arranging Clontz' scholarship.
[
Footnote 25] Wilkerson,
like petitioner, told
Page 367 U. S. 248
Clontz,
"that the Communist Party recognized and expressed to themselves
that the only kind of means would be proper means, which would be
forceful means, that no longer was there any even pretense among
intelligent Communists that any voting system or any people's
election could bring this government."
He also stated, as Scales had, that
"the revolution basically would come about by combining the
forces of what had been already identified as the Negro nation and
the working class as the vanguard."
In line with this strategy, Wilkerson advised Clontz that he
should not let his membership in the Communist Party become known,
that, by remaining "under cover," he "would be much more helpful to
the Party when the revolution came." As part of his undercover
activity, Clontz was directed to attempt to infiltrate various
organizations of the working class in order to achieve "a
background of respectability" and to be able to lead such
organizations
"toward the goal of the Communist Party, . . . the undermining
of the Government and overthrowing the Government, bringing
communism in the United States."
But Clontz was not to lose contact with the Party, for if he
"got isolated without Party direction . . . , [his] efforts would
be pretty
Page 367 U. S. 249
largely wasted." In connection with these instructions,
Wilkerson mentioned
"one of the things that frightened the United States leaders was
they knew that not only did they have to contend with China and the
other Communist-dominated countries, but that also in every
capitalist country the working class party, the Communists, would
be working from within."
When Clontz returned to North Carolina, he reported to
petitioner on his activities at the Jefferson School. He also
informed petitioner, under instructions from the F.B.I., that he
wished to move to New York. Petitioner arranged for Clontz to
remain under his direction and to pay dues to him, while in New
York, rather than effecting a formal transfer. Clontz moved to New
York in March of 1951. While there Scales directed him to "get in
with the A.C.L.U. organization to report on what value they might
have in the coming struggle. . . ." Clontz had also been advised by
an associate of petitioner to "infiltrate . . . the Civilian
Defense setup."
The witnesses Childs and Reavis also testified to their
relationship with Scales, who, among other things, arranged for
their attendance at Party schools where their instruction followed
much the same pattern as that described by Clontz. [
Footnote 26] In 1952, Childs attended a
"Party
Page 367 U. S. 250
Training School" of which petitioner was a director. The school
was given "for outstanding cadres in the North and South Carolina
and Virginia Districts of the Communist Party." It was held on a
farm and strict security measures were taken. The District
Organizer of Virginia instructed at the school. He told the
students that "the role of the Communist Party is to lead the
working masses to the overthrow of the capitalist government." With
respect to the preliminary task of gaining the "broad coalition"
necessary to achieve this task, he stated that,
". . . the Communist Party has a program of industrial
concentration in which they try to get people, that is, people who
are Communist Party members, into key shops or key industries which
the Party has determined or designated to be industrial
concentration industries or plants. This is so that the Communist
Party members in a particular plant will be able to have a cell, or
a Communist Party group in which they will be able to more
effectively plan for such things as attempting to control the union
in that particular plant."
And, in a compulsory recreation period, this same instructor
gave a demonstration of jujitsu and, explaining that the students
"might be able to use this on a picket line," how to kill a person
with a pencil. According to Childs' testimony,
"what he showed us to do was to take our pencil, . . . just take
the pencil and place it simply in the palm of your hand so that the
back will rest against the base of the thumb, and then we were to
take it, and the person, and give a quick jab so that it would
penetrate through here [demonstrating], and enter the
Page 367 U. S. 251
heart, and then if we could not do that, we just take it and
grab it at the base of the throat."
Reavis attended the Party's New York Jefferson School in 1942.
In a course on "Negro History," the students, drawn primarily from
the South, were taught that
". . . the Negro people was the only revolutionary group within
the United States that we could align themselves [
sic]
with, and hope to reach their [
sic] gains through the
avenue of force and violence, by overthrow of the Government, by
Proletariat faction. . . ."
Reavis was later advised to seek employment at the Western
Electric Plant in Winston-Salem. He stated:
"I bumped into Mr. Scales at Harvey's home and I -- the report
said . . . the advice I'd been getting was confirmed by him. I
advanced the question on what I should do in case I did get
employment there at Western Electric, and I knew it was a,
Government work, what I should do in case I was asked to sign
certain papers, and I was told to do the same, that they had when
signing a Taft-Hartley affidavit, to go ahead and sign them, that,
before they did, the defendant asked me if I had signed any papers
that might be used as proof that I was in the Party, and I didn't
remember any."
We conclude that this evidence sufficed to make a case for the
jury on the issue of illegal Party advocacy.
Dennis and
Yates have definitely laid at rest any doubt that present
advocacy of
future action for violent overthrow satisfies
statutory and constitutional requirements equally with advocacy of
immediate action to that end. 341 U.S. at
341 U. S. 509;
354 U.S. at
354 U. S. 321.
Hence, this record cannot be considered deficient because it
contains no evidence of advocacy for immediate overthrow.
Since the evidence amply showed that Party leaders were
continuously preaching during the indictment period
Page 367 U. S. 252
the inevitability of eventual forcible overthrow, the first and
basic question is a narrow one: whether the jury could permissibly
infer that such preaching, in whole or in part,
"was aimed at building up a seditious group and maintaining it
in readiness for action at a propitious time . . . the kind of
indoctrination preparatory to action which was condemned in
Dennis."
Yates, supra at
354 U. S.
321-322. On this score, we think that the jury, under
instructions which fully satisfied the requirements of Yates,
[
Footnote 27] was entitled
to infer from this
Page 367 U. S. 253
systematic preaching that, where the explicitness and
concreteness, of the sort described previously, seemed necessary
and prudent, the doctrine of violent revolution -- elsewhere more a
theory of historical predictability that a rule of conduct -- was
put forward as a guide to future action, in whatever tone, be it
emotional or calculating, that the audience and occasion required;
in short, that "advocacy of action" was engaged in.
The only other question on this phase of the case is whether
such advocacy was sufficiently broadly based to permit its
attribution to the Party. We think it was. The advocacy of action
was not "sporadic" (
cf. p.
367 U. S. 226,
supra), the instances of it being neither infrequent,
remote in time, nor casual. [
Footnote 28] It cannot be said that
Page 367 U. S. 254
the jury could not have found that the criminal advocacy was
fully authorized and condoned by the Party. We regard the testimony
of the witnesses, whose credibility, of course, is not for us, as
indicating a sufficiently systematic and substantial course of
utterances and conduct on the part of those high in the councils of
the Party, including the petitioner himself, to entitle the jury to
infer that such activities reflected tenets of the Party. The
testimony described activities in various States, including the
teaching at some seven schools, among them the national Party
school. The witnesses told of advocacy by high Party officials,
including that of leaders of the Party in nine States. Further,
there was testimony that the Party followed the principle of
"democratic centralism" whereby a position once adopted by the
Party must be unquestionably adhered to by the whole membership.
The conformity of the views expressed and the terms employed in
advocating violent overthrow in such States as Washington, North
Carolina, Missouri, Colorado and Virginia could reasonably be taken
by the jury as a practical manifestation of "democratic
centralism." Another concrete illustration of this principle could
have been found in the circumstance that, in almost every instance
where a speaker engaged in advocacy of violent overthrow, he not
only advocated violence to his audience but urged others to go out
and do likewise. All of these factors combine to justify the
inference that the illegal individual advocacy as to which
testimony was adduced was in truth the expression of Party policy
and purpose.
The requirement of Party imputability is adequately met in the
record. (
See note
18 supra.)
The sufficiency of the evidence as to other elements of the
crime requires no exposition. Scales' "active" membership in the
Party is indisputable, and that issue was properly submitted to the
jury under instructions that
Page 367 U. S. 255
were entirely adequate. [
Footnote 29] The elements of petitioner's "knowledge" and
"specific intent" (
ante, p.
367 U. S. 220)
require no further discussion of the evidence beyond that already
given as to Scales' utterances and activities.
Compare Noto v.
United States, post at
367 U. S.
299-300. They bear little resemblance to the fragmentary
and equivocal utterances and conduct which were found insufficient
in
Nowak v. United States, 356 U.
S. 660,
356 U. S.
666-667, and in
Maisenberg v. United States,
356 U. S. 670,
356 U. S.
673.
We hold that this prosecution does not fail for insufficiency of
the proof.
IV
ALLEGED TRIAL ERROR
Petitioner contends that a number of errors were committed,
having the effect of vitiating the fairness of his trial. For
reasons substantially similar to those given by the Court of
Appeals (260 F.2d 386), we find that none of petitioner's
contentions raise points meriting reversal.
1. Admission of Remote or Prejudicial
Evidence
Petitioner complains as to the admission of certain evidence
relating to the Party's general or specific purposes. In
particular, he objects to the admission of evidence about the
Party's program in the so-called "Black Belt," and especially to
the admission of a pamphlet called "I Saw the Truth in Korea,"
which contained
Page 367 U. S. 256
a very gruesome description of alleged American atrocities in
Korea. There can be no doubt that this matter, and particularly the
latter, would not have reflected well on the petitioner or the
Party in the eyes of the jury, but if it was relevant to an element
of the crime, then whether its asserted prejudicial effect so far
outweighed its probative value as to require exclusion of the
evidence, was a decision which rested in the sound discretion of
the trial judge. Particularly in light of the fact that the most
damaging of this material emanated from petitioner himself (260
F.2d at 38), we cannot say that its admission involved an abuse of
discretion which would warrant our reversal of the conclusions of
the trial judge and the Court of Appeals on this score.
We therefore need only consider whether the complained-of
evidence was legally relevant and therefore admissible. As we have
pointed out in our review of the record, the jury could have
inferred that part of the Communist Party's program for violent
revolution was the winning of favor with the Negro population in
the South, which it thought was particularly susceptible to
revolutionary propaganda and action. Surely, then, the evidence of
the Party's teaching that the Negro population should be given the
right to form a separate nation is not irrelevant to the issue of
whether or not the Party's program as a whole constituted a call to
stand in readiness for violent action, when this particular plank
in the platform was intended as bait for one of the substantial
battalions in the hoped-for revolutionary array. Of course, the
preaching that the Negro population in the South has the right to
form a separate nation does not, of itself, constitute illegal
advocacy. But neither does the teaching of the abstract theory of
Marxism-Leninism, which we have held cannot, alone, form the basis
for a conviction for violation of the Smith Act,
Yates v.
United States, supra; yet it cannot be seriously urged
Page 367 U. S. 257
that evidence of such teaching is legally irrelevant to the
charge. Similarly, the evidence of the pamphlet on alleged American
atrocities in Korea cannot be said to be irrelevant to the issue of
illegal advocacy by the Party. Once again, the pamphlet may not, in
itself, constitute such an incitement to violence as would justify
a finding that the Party advocated violent overthrow, but it is
possible to infer from it that it was the purpose of the Party to
undermine the Government in the eyes of the people in time of war
as a preparatory measure, albeit legal in itself, to the teaching
and sympathetic reception of illegal advocacy to violent
revolution.
Petitioner also argues that this and other evidence was not
connected up with him or his activities. Whether it was or not,
since it is necessary under the membership clause to prove the
advocacy of the Party as an independent element of the offense,
this renders admissible evidence not connected up with the
defendant in the accepted conspiracy sense. (
See note 23 supra.) Doubtless
because of this there is a special need to make sure that the
evidence establishing a defendant's personal knowledge of illegal
Party advocacy and his intent in becoming or remaining a Party
member to accomplish violent overthrow is cogent and adequately
brought home to him. But, having said that, we have said all, in
respect to petitioner's claim on this point.
2. The "Jencks" Claim
When this case was first before us, we reversed the conviction,
355 U. S. 1, on the
authority of our decision in
Jencks v. United States,
353 U. S. 657.
Before the second trial, Congress enacted the so-called Jencks
statute, 18 U.S.C. § 3500. Petitioner, as we understand him, does
not now argue that that statute was incorrectly applied in his
case; rather, he attacks, on constitutional grounds, the statute
itself. That the procedure set forth in the statute
Page 367 U. S. 258
does not violate the Constitution, and that the procedure
required by the decision of this Court in
Jencks was not
required by the Constitution was assumed by us in
Palermo v.
United States, 360 U. S. 343. It
is enough to say here that there can be no complaint by a criminal
defendant that he has been denied the opportunity to examine
statements by government witnesses which do not relate to the
subject matter of their testimony, for such statements bear no
greater relevance to that testimony which he seeks to impeach than
would statements by persons unconnected with the prosecution.
Whether the statements so relate to prosecution testimony is a
decision which is vested not in the Government, but in the trial
judge, with full opportunity for appellate review. Once this
question has been determined, whether the statements may be useful
for purposes of impeachment is a decision which rests, of course,
with the defendant himself.
Petitioner also objects to the limitation of the Act to written
statements signed or adopted by the witness or to any form of
substantially verbatim transcription of an oral statement by the
witness. However, petitioner does not assert that he has been
prejudiced by this provision, or that any statement or document
requested by him was withheld on the authority of the statute. In
these circumstances, we perceive no basis for this aspect of
petitioner's claims.
3. Congressional Findings in the Communist Control
Act
of 1954 and the Internal Security Act of
1950
Petitioner asserts that the congressional findings as to the
character of the Communist Party contained in both statutes
deprived him of a fair trial on the issue of the character of e
Party. That legislative action may have the effect of precluding a
fair trial is not impossible,
see Delaney v. United
States, 199 F.2d 107, but petitioner's claim here appears to
be no more than an afterthought.
Page 367 U. S. 259
There is no showing of any prejudice, nor that, during the
voire dire examination of jurors, petitioner attempted to
ascertain whether any juror had even heard of these enactments,
much less that petitioner attempted to have any juror disqualified
on that ground. We cannot on this record regard this as a
substantial contention.
Finally, for the reasons stated by the Court of Appeals, 260
F.2d at 44-46, we think that petitioner waived any right he might
have had to question the method of choosing grand jurors by his
failure to comply with Rule 12, Fed.Rules Crim.Proc., and further
that no impropriety in the method of choosing grand jurors has been
shown.
The judgment of the Court of Appeals must be
Affirmed.
[
Footnote 1]
Section 2385 (whose membership clause we place in italics)
reads:
"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 or
the government of any State, Territory, District or Possession
thereof, or the government of any political subdivision therein, by
force or violence, or by the assassination of any officer of any
such government; 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 attempts
to do so; 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 $20,000 or imprisoned not more
than twenty years, or both, and shall be ineligible for employment
by the United States or any department or agency thereof, for the
five years next following his conviction."
"If two or more persons conspire to commit any offense named in
this section, each shall be fined not more than $20,000 or
imprisoned not more than twenty years, or both, and shall be
ineligible for employment by the United States or any department or
agency thereof, for the five years next following his
conviction."
[
Footnote 2]
Petitioner was first convicted before a jury in the Middle
District of North Carolina in 1955. The conviction was upheld by
the Court of Appeals, 227 F.2d 581, and we granted certiorari at
the 1955 Term. 350 U.S. 992. The case was first heard here at the
1956 Term, and was later set for reargument at the 1957 Term.
Before reargument, the judgment of conviction was reversed upon the
Solicitor General's concession that this Court's intervening
decision in
Jencks v. United States, 353 U.
S. 657, in any event, entitled Scales to a new trial.
Scales was retried, and again convicted in 1958. The Court of
Appeals again affirmed, 260 F.2d 21, and we again brought the case
here. 358 U.S. 917. Argument on the present writ was first heard at
the 1958 Term, the case being set for reargument at the following
Term under an order in which the Court propounded certain questions
to which counsel were requested particularly to address themselves.
360 U. S. 924.
Before reargument was had, certiorari was granted (361 U.S. 951) in
Communist Party v. Subversive Activities Control Board
(No. 12, decided today,
ante p.
367 U. S. 1),
certain of the statutory and constitutional issues in which were
closely related to some of those in the
Scales case.
Because of this interrelation of the two cases, the Court deemed it
advisable that they should be heard and considered together, and
accordingly put over this case for argument with the
Communist
Party case at the present Term.
361 U.
S. 952.
[
Footnote 3]
E.g., 18 U.S.C. § 2385 (the remaining provisions of the
Smith Act); 29 U.S.C. § 159(h), repealed by the Labor-Management
Reporting and Disclosure Act of 1959, 73 Stat. 519, § 201(d)
(non-Communist affidavits to be filed by union officers); or any of
the offenses created by the Internal Security Act of 1950, for
instance, under §§ 4, 5 or 6.
[
Footnote 4]
The report also stated:
"Nowhere does the bill restrict or impair the constitutional
privilege against self-incrimination under the fifth amendment. . .
. As to whether any registration itself infringes upon the
privilege of self-incrimination, . . . [w]ith respect to individual
members, a person may be compelled to register, keep records, make
reports or statements, etc., concerning any activity which the
State properly may regulate, and he is not protected therefrom by
the privilege. . . . This becomes purely academic, however, in the
light of the specific bar to self-incrimination written into
section 4(f)."
Id. at pp. 20-21.
[
Footnote 5]
Senator Lehman, arguing that the bill required
self-incrimination, stated:
"We already have on the statute books more than 20 laws to
control and penalize subversive activities. . . . We also have the
Smith Act, recently upheld by the Court of Appeals, which makes
membership in the Communist Party
prima facie evidence of
criminal intent. . . ."
". . . [R]egistration would constitute self-incrimination, if
not under the terms of this law, then under the terms of the Smith
Act."
96 Cong.Rec. 14190.
As the debate continued, Senator Long said:
"I was under the impression from hearing the Senator from New
York yesterday that he said that, under a previous statute, it was
unlawful to belong to an organization that advocated the overthrow
of the United States government by force . . . , that there was a
previous act . . . which made it unlawful for one to be a member of
[such] an organization. . . ."
"
* * * *"
"Senator Ferguson. Is it not true that Judge Medina, in his
charge to the jury in the trial of the 11 Communists, told them
that mere membership in the Communist Party was not sufficient to
warrant the jury in convicting them under the Smith Act? [The
petitioner in the present case correctly notes that this reference
was to the
Dennis case involving an indictment for
conspiracy to advocate, not the membership clause of the Smith
Act.]"
"Mr. Mundt [who was one of the proponents of the original bill].
Precisely."
"Mr. Ferguson. So that it could not apply to that law."
"Mr. Mundt. It could not conceivably apply. . . . [I]t would
still be an incorrect interpretation of the [Smith] Act. . . ."
96 Cong.Rec. 14235.
Senator McCarran, whose name the new omnibus Senate measure
bore, stated in connection with the Smith Act:
"It was arresting to hear the Senator from New York declare on
Tuesday that '[t]he Smith Act . . . makes membership in the
Communist Party
prima facie evidence of criminal
intent.'"
". . . [O]f course, the statement about the Smith Act making
membership in the Communist Party
prima facie evidence of
criminal intent simply has no foundation in fact."
". . . Of course, in order to make a statement like the one he
made, a man must not have read Judge Medina's scholarly charge to
the jury, in which he specifically pointed out that the Communist
membership or affiliation of the 11 defendants was not . . . a part
of the charged offense. . . ."
"
* * * *"
"Mr. President, subsection 4(f) provides as follows: 'neither
the holding of office nor membership . . . shall constitute a
violation of subsection (a). . . .'"
". . . I hope the Senator from New York may find time to read
[the section as a whole], and then I hope he may see fit to tell
the Senate whether he still thinks Communists,
as such,
would obviously be indictable and subject to imprisonment under
section 4(a)."
96 Cong.Rec. 14442-14443. (Emphasis supplied.)
[
Footnote 6]
Perhaps the closest we come to any suggestion that § 4(f)
repeals,
pro tanto, the Smith Act is the statement by
Representative Multer of New York, an opponent of the measure,
during the debate on the final version of the bill:
"Another very bad provision in this bill is the new -- to this
House -- first sentence [of § 4(f)]. . . ."
"I venture to predict that, if this bill becomes law, you not
only vitiate one of the most important parts of the Smith law, but
you will give a new argument and defense to the 11 Communists
recently convicted in the Federal court in New York of crimes
against the United States, as proscribed in the Smith law,"
96 Cong.Rec. 15289, or a similar argument against the bill by
Senator Kilgore, 96 Cong.Rec. 15192.
[
Footnote 7]
Petitioner makes reference to the legislative history of an
amendment to the Communist Control Act of 1954, S. 3706, 83d Cong.,
2d Sess., introduced and passed with modifications in a hurried and
confused debate in both Houses. The amendment, proposed by Senator
Humphrey, provided that it would be criminal knowingly and
willfully to become or remain a member of the Communist Party, or
any other organization whose purpose is to overthrow the government
by force and violence. The amendment was opposed by the proponents
of the Internal Security Act of 1950, among others, on the grounds
that it would impair the effectiveness of § 4(f) of the 1950 Act,
possibly rendering the registration provisions of that Act
unconstitutional. But it seems clear that this result was conceived
to flow from the fact that the amendment mentioned the Communist
Party by name, thus making registration tantamount to an admission
of the crime itself. As Representative Halleck, the then majority
leader who opposed the amendment, put it:
". . . [W]e have the Internal Security Act of 1950, which was
worked out after the most careful consideration . . . , and the
Smith Act, under which we have had more than 100 indictments and
sixty-some convictions, all of Communist leaders. . . . Those acts
we have on the books . . . ; they have established themselves."
". . . [T]he Attorney General . . . [s]peaking of the Internal
Security Act . . . said:"
"Essential to the validity of this careful plan, however, is the
provision of section 4(f) of the act. . . . It is apparent that the
enactment of legislation making membership in the Communist Party
per se a crime would be in direct conflict with these
provisions of the Internal Security Act. If membership alone is
made criminal, to require him to declare his membership is to
require him to give self-incriminating evidence. By nullifying this
portion of the act, its entire operation would be jeopardized. . .
."
"In other words, what we are doing permits outlawing the
Communist Party, and maintaining the Internal Security Act, the
Smith Act, and all other acts by which we deal realistically with
the Communist conspiracy."
100 Cong.Rec. 14658.
There is no doubt that the Humphrey amendment is, in many
respects, similar to the membership clause. But it was assumed by
many of.the proponents of the 1950 Act, perhaps illogically and
under a misapprehension as to the law, that the amendment should be
defeated to preserve the integrity of the 1950 Act and the Smith
Act. Certainly it was considered by no one that the membership
clause had been repealed, or its application to Communists barred
by § 4(f) of the 1950 Act.
[
Footnote 8]
November 18, 1951, to November 18, 1954.
See 18 U.S.C.
§ 3282.
[
Footnote 9]
"No person shall . . . be deprived of life, liberty or property,
without due process of law. . . ."
[
Footnote 10]
"Congress shall make no law . . . abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances."
[
Footnote 11]
While the Government undertakes to defend the statute in the
absence of either or both of such elements, its ultimate
constitutional position rests on the presence of both.
[
Footnote 12]
"In all criminal prosecutions, the accused shall enjoy the right
. . . to be informed of the nature and cause of the accusation. . .
."
[
Footnote 13]
See note 27
infra.
[
Footnote 14]
The statute allows a fine of not more than $10,000 and
imprisonment for not more than ten years to be imposed, and makes
one convicted under the statute ineligible for employment by the
United States or any department or agency thereof for five years
following conviction. Petitioner was sentenced to imprisonment for
six years.
[
Footnote 15]
The element of "activity" in the proscribed membership stands
apart from the ingredient of guilty "knowledge" in that the former
may be shown by a defendant's participation in general Party
affairs, whereas the latter requires linking him with the
organization's illegal activities.
[
Footnote 16]
But compare Whitney v. California, 274 U.
S. 357;
Burns v. United States, 274 U.
S. 328, sustaining state convictions under the
organizing and membership provisions of the California Criminal
Syndicalism Act.
[
Footnote 17]
Complicity has been defined thus:
"A person is an accomplice of another person in commission of a
crime if: "
"(a) with the purpose of promoting or facilitating the
commission of the crime, he"
"(1) commanded, requested, encouraged or provoked such other
person to commit it; or"
"(2) aided, agreed to aid or attempted to aid such other person
in planning or committing it . . ."
"
* * * *"
"(b) acting with knowledge that such other person was committing
or had the purpose of committing the crime, he knowingly,
substantially facilitated its commission. . . ."
American Law Institute, Model Penal Code § 2.04(3), tentative
draft No. 1 (1953). The formulation restates the statutory
provisions generally found in jurisdictions in the United States.
See, e.g., 18 U.S.C. § 2(a); Ariz.Code Ann., 1939, §
43-116; Vernon's Texas Stat., 1952, Pen.Code, Art. 70;
cf.
Criminal Code of Canada, Tremeear's, 1944, § 69. It should be noted
that the membership clause as here construed is more limited than
subsection (b) of this provision, since it is not enough that one
has knowingly facilitated the substantive criminal conduct, but
there must also be present the specific purpose of facilitating
it.
There is, of course, considerable overlap between the law of
complicity and the law of conspiracy, and genuine problems arise as
to whether a conspirator is, by reason of his conspiracy, to be
considered an accomplice and therefore guilty also of the
substantive offense.
See ALI, Model Penal Code, tentative
draft No. 1 (1953), at pp. 20 33; Developments in the Law --
Criminal Conspiracy, 72 Harv.L.Rev. 922, 993-1000 (1959). But we
are solely concerned here with pointing up the accepted limits of
imputation of guilt, not with exploring the problems created by the
various provisions by which such imputation is effected.
[
Footnote 18]
The problems in attributing criminal behavior to an abstract
entity, rather than to specified individuals, though perhaps
difficult theoretically, as a practical matter, resolve themselves
into problems of proof. Whether it has been successfully shown that
a particular group engages in forbidden advocacy must depend on the
nature of the organization, the occasions on which such advocacy
took place, the frequency of such occasions, and the position
within the group of the persons engaging in the advocacy.
(
See pp.
367 U. S.
253-254,
infra.) Understood in this way, there
is no great difference between a charge of being a member in a
group which engages in criminal conduct and being a member of a
large conspiracy, many of whose participants are unknown or not
before the court. Whatever difficulties might be thought to inhere
in ascribing a course of criminal conduct to an abstract entity are
certainly cured, so far as any particular defendant is concerned,
by the requirement of proof that he knew that the organization
engages in criminal advocacy, and that it was his purpose to
further that criminal advocacy.
[
Footnote 19]
See generally Hart, The Aims of the Criminal Law, 23
Law & Contemp.Prob. 401 (1958).
[
Footnote 20]
Compare concurring opinion of Mr. Justice Brandeis in
Whitney v. California, 274 U. S. 357,
274 U. S. 372,
274 U. S.
373.
[
Footnote 21]
As both sides appear to agree that the "clear and present
danger" doctrine, as viewed and applied in
Dennis, supra,
at
341 U. S.
508-511, also reaches the membership clause of the Smith
Act, and since the petition for certiorari tenders no issue as to
the method of applying it here, we do not consider either
question.
[
Footnote 22]
That statute gives the Court power upon review to "direct the
entry of such appropriate judgment . . . as may be just under the
circumstances ."
[
Footnote 23]
Petitioner complains that the evidence as to Party activities
emanating from such witnesses as Lautner, Hartle, Duran, and Jones,
was inadmissible because not tied up with him. This confuses the
nature of the offense Congress has created, for it is important as
a preliminary matter, without adverting to the particular defendant
in the prosecution, to prove the character of the organization of
which he is charged with being a member. The other side of
petitioner's claim on this score would entail giving greater or
conclusive weight to petitioner's admissions as to the nature of
the Party merely because he is the defendant in this case. But that
would be as illogical on the preliminary question as would be
excluding evidence not connected up with petitioner. The evidence
as to Scales' words and deeds is weighty and strong against the
Party only because of his position in the Party, not because he is
the defendant here.
[
Footnote 24]
As stated by Clontz:
"Scales said that we could not expect the Soviet Union to land
troops to start our revolution and finish it."
"Scales further said that experience had taught the Communists
that that sort of approach was disastrous, . . . that they in
China, the Communists, had sent in Russian generals, and the only
result had been that the Chinese Communists had been licked
completely, that the new approach, of the Soviet Union, was shown
in the example of Mao, who was then Mao-Tse-Tung, who was then the
leader in the Communist Chinese Government."
"He pointed out that Mao had never even been to Russia, but
instead, the Soviet Union and the Soviet Communist Party had sent
over military leaders to instruct Mao, and his leaders, and had
sent over professional revolutionaries that could aid them in
bringing about their revolution."
"He said that we could count on drawing on the experience of the
Soviet Union, and that they also would furnish us when the
revolution came with experienced revolutionaries from Russia."
[
Footnote 25]
At one point in the course of instructing Clontz, Wilkerson
wrote out the formula "M-L=F&V" which he told Clontz
illustrated the position adopted by the appellate courts in the
United States that Marxist-Leninist teaching equalled force and
violence. Clontz testified:
"Doxey Wilkerson explained to me that, since that formula had
been established, action had had to be taken by the National Party
to conceal the fact that their principles and their goal and their
aims and their doctrines included forceful and violent revolution.
He pointed out, for example, that an official statement had been
issued by the Education Commission of the Communist Party U.S.A.
disowning or disclaiming certain study outlines, certain texts,
certain publications put out by the Communist Party."
"In fact, the order had ordered all Communist Party members to
turn those in, and the statement, he said, after that particular
date -- I don't recall the exact date -- had said henceforth, we
will not recognize these as official Party publications."
"He said, by doing that, they accomplished two things. They,
first of all, established a technicality for Communists on trial
and their attorneys, that the Party no longer accepted
Marxism-Leninism, because, he said, all Marxism-Leninism included
in its teachings and in its concept the basis of a violent
revolution."
"He said, secondly, that it did not unduly hamper the Communist
Party, that, in the future, many things would be left unsaid that
previously had been said, many things would be left unwritten that
previously had been written, that, for example, in teaching a more
bare outline, would be given, and the instructor would fill in the
revolutionary part, or the students would be sent into the
Marxist-Leninist works as references to find the revolution,
without having it spelled out in the outline."
"He said, that, naturally, would not change the basic Party goal
or the basic aims of the Communist Party, but that it would make it
more difficult for Communists to be convicted."
"
* * * *"
"One thing I recall during our discussion, he had given me a
pamphlet, a study outline entitled White Chauvinism, and he pointed
out to me, he said,"
"Now I have been instructing you from that outline, but
technically it is illegal because we Communists have disclaimed it,
so that you are holding an illegal document there, actually."
[
Footnote 26]
One of Childs' early tasks, assigned him by the District
Organizer, as a Communist Party member was to serve as bodyguard
for a visiting official of the Civil Rights Congress. The official,
accompanied by Childs and petitioner, spoke in Chapel Hill in
February of 1951 on the Korean War. His theme, according to Childs,
was
"that the Korean War was being used by the capitalists as a
means of oppressing the Negro people . . . that the capitalists are
sending the Negroes to Korea to fight the Korean people who are
trying to fight for their rights, the same as the Negro people are
in the South."
Childs took notes on the speech, and testified that the
official's "exact words" were:
"In Korea, they are still called niggers. Niggers are
court-martialed for refusing to have their men slaughtered.
Lieutenant Gilbert is one example. They say that the nigger is
yellow. Yellow, give the niggers in North Carolina and Georgia
rifles and tell them to fight for their rights. Yellow, man, you
will see fighting like you have never seen before."
[
Footnote 27]
The trial court charged:
"Moreover, the teaching in the abstract or teaching objectively,
that is, teaching, discussing, explaining, or expounding what is
meant by the aim or purpose of any author, group, or society of
overthrowing the Government by force and violence is not criminal.
For example, study and discussion by the Communist Party or by any
other group in classrooms, or in study groups, or public or private
meetings with the object of informing the participants or the
audience of the aims and purposes of the doctrines of Marx, Lenin,
Stalin, or the Communist Party is entirely lawful. Furthermore,
without being criminal, the Communist Part could privately or
publicly endeavor to persuade its members that they should adopt
and espouse the belief that the Government of the United States
should be overthrown by force and violence as speedily as
circumstances will permit. This is no more than advocating an idea,
and advocating an idea is no crime. Moreover, without transgressing
the Smith Act, the Party might even instruct its members that it
would be for their good and benefit, if this belief or idea were
carried into effect."
"All of this is permissible because such utterances are
protected by the First Amendment of the Federal Constitution,
guaranteeing freedom of speech."
"However, if the Party went further, and with the intention of
overthrowing the Government by force and violence, it taught, or
advocated a rule or principle of action which both, one, called on
its members to take forcible and concrete action at some
advantageous time thereafter to overthrow the Government by force
and violence, and, two, expressed that call in such written or oral
words as would reasonably and ordinarily be calculated to incite
its members to take concrete and forcible action for such
overthrow; then, if the Communist Party did that, the Party became
such a society or group, as was outlawed by the Smith Act."
"To be criminal, the teaching or advocacy, or the call to action
just described need not be for immediate action, that is, for
action today, tomorrow, next month, or next year. It is criminal,
nonetheless, if the action is to be at an unnamed time in the
future, to be fixed by the circumstances or on signal from the
Party."
"It is criminal if it is a call upon the members to be ready, or
to stand in readiness for action, or for a summons to action at a
favorable, or opportune time in the future, or as speedily as
circumstances will permit, provided always that the urging of such
readiness be by words which would reasonably and ordinarily be
calculated to spur a person to ready himself for, and to take
action towards, the overthrow of the Government. But those to whom
the advocacy or urging is addressed must be urged to do something
now or in the future, rather than merely to believe in something.
In other words, the advocacy must be of concrete action, and not
merely a belief in abstract doctrine. However, the immediate
concrete action urged should be intended to lead towards the
forcible overthrow, and be so understood by those to whom the
advocacy is addressed."
[
Footnote 28]
Although most of the particularized evidence related to events
not within the limitations period, it was of course open to the
jury, under proper instructions which were given, to infer that
such events reflected the character of Party advocacy during the
limitations period. Petitioner does not contend to the
contrary.
[
Footnote 29]
The trial court charged:
"The defendant admits that he was a member of the Party. For his
membership to be criminal, however, it is not sufficient that he be
simply a member. It must be more than a nominal, passive, inactive,
or purely technical membership. In determining whether he was an
active or inactive member, consider how much of his time and
efforts he devoted to the Party. To be active he must have devoted
all, or a substantial part, of his time and efforts to the
Party."
MR. JUSTICE BLACK, dissenting.
Petitioner was convicted for violation of the "membership
clause" of the Smith Act which imposes a penalty of up to twenty
years' imprisonment together with a fine of $20,000 upon anyone
who
"becomes or is a member of, or affiliates with, any . . .
society, group, or assembly of persons [who teach, advocate, or
encourage the overthrow of the existing government by force or
violence], knowing the purposes thereof. . . . [
Footnote 2/1]"
Rejecting numerous contentions urged for reversal, the Court
upholds a six-year sentence imposed upon petitioner under the
authority of its prior decisions in
Dennis v. United
States [
Footnote 2/2] and
Yates v. United States. [
Footnote 2/3] My reasons for dissenting from this
decision are primarily those set out by MR. JUSTICE BRENNAN -- that
§ 4(f) of the Subversive Activities Control Act [
Footnote 2/4] bars prosecutions under the
membership clause of the Smith Act -- and MR. JUSTICE DOUGLAS --
that the
Page 367 U. S. 260
First Amendment absolutely forbids Congress to outlaw membership
in a political party or similar association merely because one of
the philosophical tenets of that group is that the existing
government should be overthrown by force at some distant time in
the future when circumstances may permit. There are, however, two
additional points that I think should also be mentioned. In an
attempt to bring the issue of the constitutionality of the
membership clause of the Smith Act within the authority of the
Dennis and
Yates cases, the Court has practically
rewritten the statute under which petitioner stands convicted by
treating the requirements of "activity" and "specific intent" as
implicit in words that plainly do not include them. Petitioner's
conviction is upheld just as though the membership clause had
always contained these requirements. It seems clear to me that
neither petitioner nor anyone else could ever have guessed that
this law would be held to mean what this Court now holds it does
mean. For that reason, it appears that petitioner has been
convicted under a law that is, at best, unconstitutionally vague
and, at worst,
ex post facto. [
Footnote 2/5] He has therefore been deprived of his
right to
Page 367 U. S. 261
be tried under a clearly defined, preexisting "law of the land"
as guaranteed by the Due Process Clause, and I think his conviction
should be reversed on that ground. [
Footnote 2/6]
Secondly, I think it is important to point out the manner in
which this case reemphasizes the freedom-destroying nature of the
"balancing test" presently in use by the Court to justify its
refusal to apply specific constitutional protections of the Bill of
Rights. In some of the recent cases in which it has "balanced" away
the protections of the First Amendment, the Court has suggested
that it was justified in the application of this "test" because no
direct abridgment of First Amendment freedoms was involved, the
abridgment in each of these cases being, in the Court's opinion,
nothing more than "an incident of the informed exercise of a valid
governmental function." [
Footnote
2/7] A possible implication of that suggestion was that, if the
Court were confronted with what it would call a direct abridgment
of speech, it would not apply the "balancing test," but would
enforce the protections of the First Amendment according to its own
terms. This case causes me to doubt that such an implication is
justified. Petitioner is being sent to jail for the express reason
that he has associated with people who have entertained unlawful
ideas and said unlawful things, and that, of course, is a direct
abridgment of his freedoms of speech and assembly
Page 367 U. S. 262
-- under any definition that has ever been used for that term.
Nevertheless, even as to this admittedly direct abridgment, the
Court relies upon its prior decisions to the effect that the
Government has power to abridge speech and assembly if its interest
in doing so is sufficient to outweigh the interest in protecting
these First Amendment freedoms. [
Footnote 2/8]
This, I think, demonstrates the unlimited breadth and danger of
the "balancing test" as it is currently being applied by a majority
of this Court. Under that "test," the question in every case in
which a First Amendment right is asserted is not whether there has
been an abridgment of that right, not whether the abridgment of
that right was intentional on the part of the Government, and not
whether there is any other way in which the Government could
accomplish a lawful aim without an invasion of the constitutionally
guaranteed rights of the people. It is, rather, simply whether the
Government has an interest in abridging the right involved and, if
so, whether that interest is of sufficient importance, in the
opinion of a majority of this Court, to justify the Government's
action in doing so. This doctrine, to say the very least, is
capable of being used to justify almost any action Government may
wish to take to suppress First Amendment freedoms.
[
Footnote 2/1]
18 U.S.C. § 2385.
[
Footnote 2/2]
341 U. S. 341 U.S.
494.
[
Footnote 2/3]
354 U. S. 354 U.S.
298.
[
Footnote 2/4]
50 U.S.C. § 783(f).
[
Footnote 2/5]
The fact that the Court's rewriting of the statute has, in this
case, narrowed the statute, rather than broadened it does not
change this conclusion. Petitioner has a right to have the
constitutionality of the statute considered on the basis upon which
it was originally written, for that was the condition of the
statute when he violated it. The danger of the practice in which
the Court is engaging is pointed up by its decision in the
companion case,
Communist Party v. Subversive Activities
Control Board, ante p.
367 U. S. 1, in
which it imposes the burden upon the members of that Party to guess
as to what sections of the Subversive Activities Control Act will
be held unconstitutional. The difficulty of that burden is
tremendously increased by the decision in this case for they cannot
know how many and what kind of additional requirements will be
found to be "implied" and placed into the "balance" by which the
constitutionality of questionable provisions of that Act will be
determined.
[
Footnote 2/6]
Cohen v. Hurley, 366 U. S. 117,
366 U. S. 131
(dissenting opinion).
See also Konigsberg v. State Bar of
California, 366 U. S. 36,
366 U. S. 56
(dissenting opinion).
[
Footnote 2/7]
Konigsberg v. State Bar of California, 366 U. S.
36,
366 U. S. 51.
See also Uphaus v. Wyman, 360 U. S.
72;
Barenblatt v. United States, 360 U.
S. 109;
Uphaus v. Wyman, 364 U.
S. 388;
Willinson v. United States,
365 U. S. 399;
Braden v. United States, 365 U. S. 431;
In re Anastaplo, 366 U. S. 82. In
each of these cases, I disagreed, as I still do, with the
majority's characterization of the abridgment involved as
"incidental," as I understand that term to have significance in
First Amendment cases.
See particularly my dissenting
opinion in the
Konigsberg case,
supra, at
366 U. S.
68-71.
[
Footnote 2/8]
The decisions in both of the cases upon which the Court here
relies were rested on the "balancing test."
See Dennis v.
United States, supra, at
341 U. S.
506-511;
Yates v. United States, supra, at
354 U. S.
321.
MR JUSTICE DOUGLAS, dissenting.
When we allow petitioner to be sentenced to prison for six years
for being a "member"of the Communist Party, we make a sharp break
with traditional concepts of First Amendment rights and make
serious Mark Twain's lighthearted comment that
"It is by the goodness of God that, in our country, we have
those three unspeakably precious
Page 367 U. S. 263
things: freedom of speech, freedom of conscience, and the
prudence never to practice either of them. [
Footnote 3/1]"
Even the Alien and Sedition Laws -- shameful reminders of an
early chapter in intolerance -- never went so far as we go today.
They were aimed at conspiracy and advocacy of insurrection and at
the publication of "false, scandalous and malicious" writing
against the Government, 1 Stat. 596. The Government then sought
control over the press "in order to strike at one of the chief
sources of disaffection and sedition." Miller, Crisis in Freedom
(1951), p. 56. There is here no charge of conspiracy, no charge of
any overt act to overthrow the Government by force and violence, no
charge of any other criminal act. The charge is being a "member" of
the Communist Party, "well-knowing" that it advocated the overthrow
of the Government by force and violence, "said defendant intending
to bring about such overthrow by force and violence as speedily as
circumstances would permit." That falls far short of a charge of
conspiracy. Conspiracy rests not in intention alone, but in an
agreement with one or more others to promote an unlawful project.
United States v. Falcone, 311 U.
S. 205,
311 U. S. 210;
Direct Sales Co. v. United States, 319 U.
S. 703,
319 U. S. 713.
No charge of any kind or sort of agreement hitherto embraced in the
concept of a conspiracy is made here.
We legalize today guilt by association, sending a man to prison
when he committed no unlawful act. Today's break with tradition is
a serious one. It borrows from the totalitarian philosophy. As
stated by O'Brian, National Security and Individual Freedom (1955),
pp. 27-28:
"The Smith Act of 1940
made it unlawful for any person
to be or to become a member of or affiliate with any society,
group, or assembly which teaches,
Page 367 U. S. 264
advocates, or encourages the overthrow or destruction of any
government in the United States by force or violence. These
statutes [the Smith Act, together with a 1920 amendment to the
Immigration Law, Act of June 5, 1920, 41 Stat. 1008], therefore,
imported into our law the alien doctrine of guilt by association,
which, up to this time, had been regarded as abhorrent and which
had never been recognized either by the courts or by the Department
of Justice, even during the perils and excitements of the First
World War."
The case is not saved by showing that petitioner was an active
member. None of the activity constitutes a crime. The record
contains evidence that Scales was the Chairman of the North and
South Carolina Districts of the Communist Party. He recruited new
members into the Party, and promoted the advanced education of
selected young Party members in the theory of communism to be
undertaken at secret schools. He was a director of one such school.
He explained the principles of the Party to an FBI agent who posed
as someone interested in joining the Party, and furnished him
literature, including articles which criticized in vivid language
the American "aggression" in Korea and described American
"atrocities" committed on Korean citizens. He once remarked that
the Party was setting up underground means of communication, and in
1951 he himself "went underground." At the school of which Scales
was director, students were told (by someone else) that one of the
Party's weaknesses was in failing to place people in key industrial
positions. One witness told of a meeting arranged by Scales at
which the staff of the school urged him to remain in his position
in an industrial plant rather than return to college. In Scales'
presence, students at the school were once shown how to kill a
person with a pencil, a device which, it was said, might come in
handy
Page 367 U. S. 265
on a picket line. Other evidence showed Scales to have made
several statements or distributed literature containing implicating
passages. Among them were comments to the effect that the Party
line was that the Negroes in the South and the working classes
should be used to foment a violent revolution; that a Communist
government could not be voted into power in this country because
the Government controlled communication media, newspapers, the
military, and the educational systems, and that force was the only
way to achieve the revolution; that, if a depression were to come,
the Communist America would be closer at hand than predicted by
William Z. Foster; that the revolution would come within a
generation; that it would be easier in the United States than in
Russia to effectuate the revolution because of assistance and
advice from Russian Communists. Petitioner at different times said
or distributed literature which said that the goals of communism
could only be achieved by violent revolution that would have to
start internally with the working classes.
Not one single illegal act is charged to petitioner. That is why
the essence of the crime covered by the indictment is merely belief
[
Footnote 3/2] -- belief in the
proletarian revolution, belief in Communist creed.
Page 367 U. S. 266
Spinoza summed up in a sentence much of the history of the
struggle of man to think and speak what he believes:
"Laws which decree what everyone must believe, and forbid
utterance against this or that opinion, have too often been enacted
to confirm or enlarge the power of those who dared not suffer free
inquiry to be made, and have by a perversion of authority turned
the superstition of the mob into violence against opponents."
Tractatus Theologico-Politicus (London 1862) p.
349.
"The thought of man shall not be tried, for the devil himself
knoweth not the thought of man," said Chief Justice Brian in Y.B.
Pasch, 17 Edw. IV, f. 2, pl. 2. The crime of belief -- presently
prosecuted -- is a carryback to the old law of treason where men
were punished for compassing the death of the King. That law, which
had been employed for "suppression of political opposition or the
expression of ideas or beliefs distasteful to those in power,"
Hurst, Historic Background of the Treason Clause, 6 Fed.B.J. 305,
307, was rejected here, and the treason clause of our Constitution
was "most praised for the reason that it prevented the use of
treason trials as an instrument of political faction."
Id.
307. Sedition or treason in the realm of politics and heresy in the
ecclesiastical field had long centered on beliefs as the abhorrent
criminal act. The struggle on this side of the Atlantic was to get
rid of that concept and to punish men not for what they thought,
but for overt acts against the peace of the Nation.
Cramer v.
United States, 325 U. S. 1,
325 U. S. 28-30.
Montesquieu, who was a force in the thinking of those times
(
id., 15, n. 21), proclaimed against punishing thoughts or
words:
"There was a law passed in England under Henry VIII by which
whoever predicted the king's death
Page 367 U. S. 267
was declared guilty of high treason. This law was extremely
vague; the terror of despotic power is so great that it recoils
upon those who exercise it. In the king's last illness, the
physicians would not venture to say he was in danger, and surely
they acted very right. . . . Marsyas dreamed that he had cut
Dionysius' throat. Dionysius put him to death, pretending that he
would never have dreamed of such a thing by night if he had not
thought of it by day. This was a most tyrannical action: for though
it had been the subject of his thoughts, yet he had made no attempt
towards it. The laws do not take upon them to punish any other than
overt acts."
The Spirit of Laws (1949), Vol. 1, pp. 192-193. "Words do not
constitute an overt act; they remain only in idea."
Id.
193.
These were the notions that led to the restrictive definition of
treason, presently contained in Art. III, § 3, of the Constitution,
which requires overt acts.
Cramer v. United States, supra;
Haupt v. United States, 330 U. S. 631,
330 U. S. 645
(concurring opinion); Hurst, Treason in the United States, 58
Harv.L.Rev. 395. Our long and painful experience with the law of
treason, wholly apart from the First Amendment, should be enough
warning that we as a free people should not venture again into the
field of prosecuting beliefs.
That was the philosophy behind
Board of Education v.
Barnette, 319 U. S. 624,
319 U. S.
641-642:
"We can have intellectual individualism and the rich cultural
diversities that we owe to exceptional minds only at the price of
occasional eccentricity and abnormal attitudes. When they are so
harmless to others or to the State as those we deal with here, the
price is not too great. But freedom to differ is not limited to
things that do not matter much. That
Page 367 U. S. 268
would be a mere shadow of freedom. The test of its substance is
the right to differ as to things that touch the heart of the
existing order."
"If there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein. If there are any circumstances which permit an exception,
they do not now occur to us."
Nothing but beliefs is on trial in this case. They are
unpopular, and, to most of us, revolting. But they are nonetheless
ideas or dogmas or faiths within the broad framework of the First
Amendment.
See Barenblatt v. United States, 360 U.
S. 109,
360 U. S.
145-152 (dissent). The creed truer to our faith was
stated by the Bar Committee headed by Charles E. Hughes which, in
1920, protested the refusal of the New York Assembly to seat five
members of the Socialist Party: [
Footnote 3/3]
". . . it is of the essence of the institutions of liberty that
it be recognized that guilt is personal and cannot be attributed to
the holding of opinion or to mere intent in the absence of overt
acts. . . ."
Belief in the principle of revolution is deep in our traditions.
The Declaration of Independence [
Footnote 3/4] proclaims it:
"whenever any Form of Government becomes destructive of these
Ends, it is the Right of the People
Page 367 U. S. 269
to alter or to abolish it, and to institute new Government,
laying its Foundation on such Principles, and organizing its Powers
in such Form, as to them shall seem most likely to effect their
Safety and Happiness."
This right of revolution has been and is a part of the fabric of
our institutions. [
Footnote 3/5]
Last century, when Russia invaded Hungary and subdued her, Louis
Kossuth came here to enlist American support. On January 8, 1852,
Lincoln spoke in sympathy of the Hungarian cause and was a member
of a committee which, on January 9, 1852, submitted Resolutions in
Behalf of Hungarian Freedom. Among these resolutions was one that
read:
"That it is the right of any people, sufficiently numerous for
national independence, to throw off, to revolutionize, their
existing form of government, and to establish such other in its
stead as they may choose."
Basler, Vol. II, The Collected Works of Abraham Lincoln (1953),
p. 115.
On January 12, 1848, Lincoln, in an address before the United
States House of Representatives, stated:
"Any people anywhere, being inclined and having the power, have
the
right to rise up, and shake off the existing
government, and form a new one that suits them better. This is a
most valuable -- a most sacred right -- a right,
Page 367 U. S. 270
which we hope and believe, is to liberate the world."
Id., Vol. I, p. 438.
Of course, government can move against those who take up arms
against it. Of course, the constituted authority has the right of
self-preservation. But we deal in this prosecution of Scales only
with the legality of ideas and beliefs, not with overt acts. The
Court speaks of the prevention of "dangerous behavior" by punishing
those "who work to bring about that behavior." That formula returns
man to the dark days when government determined what behavior was
"dangerous" and then policed the dissidents for tell-tale signs of
advocacy. What is "dangerous behavior" that must be suppressed in
its talk stage has had a vivid history even on this continent. The
British colonial philosophy was summed up by Sir William Berkeley,
who served from 1641 to 1677 as Virginia's Governor:
". . . I thank God
there are no free schools nor
printing, and I hope we shall not have these hundred
years; for
learning has brought disobedience, and heresy,
and sects into the world, and
printing has divulged them,
and libels against the best government. God keep us from both!"
2 Hening's Stat.Va. 1660-1682, p. 517. The history is familiar;
much of it is reviewed in Chafee, The Blessings of Liberty (1956).
He states in one paragraph what I think is the Jeffersonian
conception of the First Amendment rights involved in the present
case:
"We must choose between freedom and fear -- we cannot have both.
If the citizens of the United States persist in being afraid, the
real rulers of this country will be fanatics fired with a zeal to
save grown men from objectionable ideas by putting them under the
care of official nursemaids."
Id. 156.
In recent years we have been departing, I think, from the theory
of government expressed in the First Amendment. We have too often
been "balancing" the right of
Page 367 U. S. 271
speech and association against other values in society to see if
we, the judges, feel that a particular need is more important than
those guaranteed by the Bill of Rights.
Dennis v. United
States, 341 U. S. 494,
341 U. S.
508-509;
Communications Assn. v. Douds,
339 U. S. 382,
339 U. S.
399-400;
NAACP v. Alabama, 357 U.
S. 449,
357 U. S.
463-466;
Uphaus v. Wyman, 360 U. S.
72,
360 U. S. 78-79;
Barenblatt v. United States, 360 U.
S. 109,
360 U. S.
126-134;
Bates v. Little Rock, 361 U.
S. 516,
361 U. S. 524;
Shelton v. Tucker, 364 U. S. 479;
Wilkinson v. United States, 365 U.
S. 399;
Braden v. United States, 365 U.
S. 431;
Konigsberg v. State Bar, 366 U. S.
36;
In re Anastaplo, 366 U. S.
82. This approach, which treats the commands of the
First Amendment as "no more than admonitions of moderation"
(
see Hand, The Spirit of Liberty (1960 ed.), p. 278), runs
counter to our prior decisions.
See Lovell v. Griffin,
303 U. S. 444,
303 U. S. 450;
Murdock v. Pennsylvania, 319 U. S. 105,
319 U. S. 108;
Board of Educational v. Barnette, 319 U.
S. 624,
319 U. S.
639.
It also runs counter to Madison's views of the First Amendment,
as we are advised by his eminent biographer, Irving Brant:
"When Madison wrote 'Congress shall make no law' infringing
these rights, he did not expect the Supreme Court to decide, on
balance, whether Congress could or could not make a law infringing
them. It was true, he observed in presenting his proposals, that
state legislative bodies had violated many of the most valuable
articles in bills of rights. But that furnished no basis for
judging the effectiveness of the proposed amendments: "
" If they are incorporated into the Constitution, independent
tribunals of justice will consider themselves in a peculiar manner
the guardians of those rights; they will be an impenetrable bulwark
against every assumption of power in the Legislative or
Page 367 U. S. 272
Executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the
Constitution by the declaration of rights."
"This statement by Madison, along with all the rest of his
speech, is so devastating to the 'balance theory' that efforts have
been and are being made to discredit its authenticity. The Annals
of Congress, it is said, is not an official document, but a
compilation of stenographic reports (by a shorthand reporter
admitted to the floor for that purpose) published in the press and
containing numerous errors. That is true, although the chief
complaint was that partially caught sentences were meaningless. In
general, that which was clearly reported was truly reported. In the
case of this all-important speech, Madison spoke from notes, and
the notes in his handwriting are in the Library of Congress. They
parallel the speech from end to end, scantily, but leaving no doubt
of the fundamental faithfulness of the report."
The Madison Heritage, 35 N.Y.U.L.Rev. 882, 899-900.
Brant goes on to relate how Madison opposed a resolution of
censure against societies creating the political turmoil that was
behind the Whiskey Rebellion.
Id. p. 900. He expressed in
the House the view that opinions are not objects of
legislation.
"If we advert to the nature of Republican Government, we shall
find that the censorial power is in the people over the Government,
and not in the Government over the people."
Id. p. 900.
The trend of history, as Jefferson noted, has been against the
rights of man. He wrote that "The natural progress of things is for
liberty to yield and government to gain ground." [
Footnote 3/6] The formula he prepared for a society
where ideas flourished was not punishment of the unorthodox
Page 367 U. S. 273
but education and enlightenment of the masses. Jefferson wrote
to Madison on December 20, 1787: [
Footnote 3/7]
"I own I am not a friend to a very energetic government. It is
always oppressive. It places the governors indeed more at their
ease, at the expense of the people. The late rebellion in
Massachusetts has given more alarm than I think it should have
done. Calculate that one rebellion in thirteen States in the course
of eleven years, is but one for each State in a century and a half.
No country should be so long without one. Nor will any degree of
power in the hands of government prevent insurrections. In England,
where the hand of power is heavier than with us, there are seldom
half a dozen years without an insurrection. In France, where it is
still heavier, but less despotic, as Montesquieu supposes, than in
some other countries, and where there are always two or three
hundred thousand men ready to crush insurrections, there have been
three in the course of the three years I have been here, in every
one of which greater numbers were engaged than in Massachusetts,
and a great deal more blood was spilt. In Turkey, where the sole
nod of the despot is death, insurrections are the events of every
day. Compare again the ferocious depredations of their insurgents,
with the order, the moderation and the almost self-extinguishment
of ours. And say, finally, whether peace is best preserved by
giving energy to the government, or information to the people. This
last is the most certain, and the most legitimate engine of
government. Educate and inform the whole mass of the people. Enable
them to see that it is their
Page 367 U. S. 274
interest to preserve peace and order, and they will preserve
them. And it requires no very high degree of education to convince
them of this. They are the only sure reliance for the preservation
of our liberty."
This is the only philosophy consistent with the First Amendment.
When belief in an idea is punished as it is today, we sacrifice
those ideals and substitute an alien, totalitarian philosophy in
their stead. [
Footnote 3/8]
Page 367 U. S. 275
"The most indifferent arguments," Bismarck said, "are good when
one has a majority of bayonets." That is also true when one has the
votes.
What we lose by majority vote today may be reclaimed at a future
time when the fear of advocacy, dissent, and nonconformity no
longer cast a shadow over us.
|
367
U.S. 203app|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS
The constitutions of 15 States have, at one time or another,
made specific provision for the right of revolution by reserving to
the people the right to "alter, reform or abolish" the existing
frame of government.
See Pennsylvania Const. of 1873, Art.
I, § 2; Maryland Const. of 1867, Dec. of Rights, Art. I; Virginia
Const. of 1902, Art. I, § 3; Alabama Const. of 1865, Art. I, § 2;
Arkansas Const. of 1874, Art. II, § 1; Idaho Const. of 1889, Art.
I, § 2; Kansas Const. of 1858, Art. I, § 2; Kentucky Const. of
1890, Bill of Rights, § 4; Ohio Const. of 1851, Art. I, § 2; Oregon
Const. of 1857, Art. I, § 1; Tennessee Const. of 1870, Art. I, § 1;
Texas Const. of 1876, Art. I, § 2; Vermont Const. of 1793, c. 1,
Art. 7; West Virginia Const. of 1872, Art. 3, § 3; Wyoming Const.
of 1889, Art. I, § 1. Some 24 other States have, or have had,
slightly varying forms of the same provision.
See New
Hampshire Const., Pt. I, Art. 10; Massachusetts Const.,
Page 367 U. S. 276
Part the First, Article VII; Connecticut Const., Article First,
§ 2; New Jersey Const., Art. I, 2; Delaware Const., Preamble; North
Carolina Const., Art. I, § 3; South Carolina Const., Art. 1, § 1;
Rhode Island Const., Art. I, § 1; California Const., Art. I, § 2;
Colorado Const., Art. II, § 2; Florida Const., Dec. of Rights, § 2;
Indiana Const., Art. I, § 1; Iowa Const., Art. I, § 2; Maine
Const., Art. I, § 2; Michigan Const. of 1835, Art. I, § 2;
Minnesota Const., Art. I, § 1; Mississippi Const., Art. 3, § 6;
Missouri Const., Art. I, § 3; Montana Const., Art. III, § 2; Nevada
Const., Art. I, § 2; North Dakota Const., Art. I, § 2; Oklahoma
Const., Art. II, § 1; South Dakota Const., Art. VI, § 26; Utah
Const., Art. I, § 2. The older constitutions often add a clause
which shows the roots of these provisions in the right of
revolution.
"The doctrine of nonresistance against arbitrary power and
oppression is absurd, slavish, and destructive of the good and
happiness of mankind,"
the New Hampshire Const., Pt. I, Art. 10, recites. The same
language may be found in Maryland Const., Dec. of Rights, Art. 6;
Tennessee Const., Art. I, § 2.
These provisions have been considered by several state courts.
It has been held that the general right of the people to alter or
abolish the government does not deprive state courts from passing
on the validity of constitutional amendments peacefully passed.
Wells v. Bain, 75 Pa. St. 39, 46-49;
Koehler &
Lange v. Hill, 60 Iowa 543, 614-617, 15 N.W. 614-616;
Bennett v. Jackson, 186 Ind. 533, 538-541, 116 N.E. 921,
922-923;
Erwin v. Nolan, 280 Mo. 401, 406-407, 217 S.W.
837, 838-839. More recently, several state courts have had occasion
to consider these provisions in connection with the persecution of
Communists.
See Commonwealth v. Widovich, 295 Pa. 311,
317-318, 145 A. 295, 297-298 (State Sedition Act);
Nelson v.
Wyman, 99 N.H. 33, 50-51, 105 A.2d 756, 770-771 (legislative
investigation);
Braverman v.
Page 367 U. S. 277
Bar Assn. of Balto., 209 Md. 328, 346-347, 121 A.2d
473, 481-482 (disbarment of a lawyer convicted under the Smith
Act). The last two of these decisions relied on language in the
decision of this Court in
Dennis v. United States,
341 U. S. 494,
341 U. S.
501:
"Whatever theoretical merit there may be to the argument that
there is a 'right' to rebellion against dictatorial governments is
without force where the existing structure of the government
provides for peaceful and orderly change."
Yet the right of revolution has always meant more than this.
"The words . . . ," said the court in
Wells v. Bain,
supra, 47,
"embrace but three known recognised modes by which the whole
people, the state, can give their consent to an alteration of an
existing lawful frame of government, viz.: "
"1. The mode provided in the existing constitution."
"2. A law, as the instrumental process of raising the body for
revision and conveying to it the powers of the people."
"3. A revolution."
"The first two are peaceful means through which the consent of
the people to alteration is obtained, and by which the existing
government consents to be displaced without revolution. The
government gives its consent, either by pursuing the mode provided
in the constitution or by passing a law to call a convention. If
consent be not so given by the existing government, the remedy of
the people is in the third mode -- revolution."
This does not mean the helplessness of the established
government in the face of armed resistance, for that government has
the duty of maintaining existing institutions.
Wells v. Bain,
supra, 49. But it does mean that the right of revolution is
ultimately reserved to the people themselves, whatever formal, but
useless, remedies the existing government may offer. This is shown
in the history of our own revolution. Legislatures and governments
have
Page 367 U. S. 278
the right to protect themselves. They may judge as to the
appropriate means of meeting force directed against them, but, as
to the propriety of the exercise of the ultimate right of
revolution, there, as John Locke says, "The people shall be judge."
Second Treatise on Civil Government, § 240. To forbid the teaching
of the propriety of revolution, even where the teacher believes his
own lesson, is to hinder the people in the free exercise of this
great sovereign right.
See Dennis v. United States,
341 U. S. 494,
341 U. S.
581-586 (dissenting opinion).
Lincoln's full statement, made in 1848 and already referred to,
reads:
"Any people anywhere, being inclined and having the power, have
the
right to rise up, and shake off the existing
government, and form a new one that suits them better. This is a
most valuable -- a most sacred right -- a right, which we hope and
believe, is to liberate the world. Nor is this right confined to
cases in which the whole people of an existing government may
choose to exercise it. Any portion of such people that
can,
may revolutionize, and make their own, of so much of the
teritory [
sic] as they inhabit. More than this, a
majority of any portion of such people may revolutionize,
putting down a
minority, intermingled with, or near about
them, who may oppose their movement. Such minority was precisely
the case of the tories of our own revolution. It is a quality of
revolutions not to go by
old lines, or
old laws,
but to break up both, and make new ones."
I Basler, The Collected Works of Abraham Lincoln (1953),
pp.438-439.
[
Footnote 3/1]
Following the Equator (1903), Vol. I, p. 198.
[
Footnote 3/2]
The prototype of the present prosecution is found in Communist
lands. The Communist Government in Czechoslovakia on October 6,
1948, promulgated a law, § 3 of which provided:
"(1) Whoever publicly or before several people instigates
against the Republic, against its independence, constitutional
unity, territorial integrity or its people's democratic system [of
government], its social or economic order, or against its national
character as guaranteed by the Constitution, shall be punished for
a minor crime by rigorous confinement for from three months to
three years."
"(2) The following shall be punished in like manner: whoever
intentionally or through gross negligence makes the dissemination
of the instigative statement specified in Subsection 1 possible or
easy."
[
Footnote 3/3]
N.Y.L.Doc., 143d Sess., 1920, Vol. 5, No. 30, p. 4.
[
Footnote 3/4]
"When honest men are impelled to withdraw their allegiance to
the established law or custom of the community, still more when
they are persuaded that such law or custom is too iniquitous to be
longer tolerated, they seek for some principle more generally
valid, some 'law' of higher authority, than the established law or
custom of the community. To this higher law or more generally valid
principle they then appeal in justification of actions which the
community condemns as immoral or criminal. They formulate the law
or principle in such a way that it is, or seems to them to be,
rationally defensible. To them, it is 'true' because it brings
their actions into harmony with a rightly ordered universe, and
enables them to think of themselves as having chosen the nobler
part, as having withdrawn from a corrupt world in order to serve
God or Humanity or a force that makes for the highest good."
Becker, The Declaration of Independence (1942), pp. 277-278.
[
Footnote 3/5]
See the Appendix to this opinion,
post, p.
367 U. S.
275.
[
Footnote 3/6]
7 The Writings of Thomas Jefferson (Memorial ed.1903) p. 37.
[
Footnote 3/7]
6 The Writings of Thomas Jefferson (Memorial ed.1903) pp.
391-392.
[
Footnote 3/8]
Gellhorn, American Rights (1960), in commenting on
Dennis v.
United States, 341 U. S. 494, and
Yates v. United States, 354 U. S. 298,
states:
"The aftermath of the
Yates case is interesting. By the
end of 1956, convictions of Communist leaders under the Smith Act
had numbered 114. Many of these cases were still pending in the
appellate courts when the
Yates decision was announced in
June of 1957. On one ground or another, convictions were set aside
and new trials were granted to many of these defendants. The
Department of Justice itself dropped the prosecution of a
considerable number, on the ground that they could not properly be
convicted on the basis of the evidence now available. Most
significantly of all, the cases against the nine remaining
defendants in
Yates, as to whom the Supreme Court had
refused to dismiss the charges, were abandoned by the prosecution
because there was insufficient evidence that they had advocated
action, as distinct from opinion. After all the clamor, after all
the expressed alarm about the peril into which the United States
was being plunged by this handful of misguided fanatics, the
prosecution felt itself unable to show persuasively that the
Communist spokesmen had engaged in the forbidden incitements to
illegality"
"This should stimulate a sober second look at the surface
attractions of programs of suppression and coercion. Occasionally
the supporters of these programs are scoundrels who falsely parade
themselves as upholders of democracy; but more often they are good
and sincere men. Men genuinely devoted to worthy ends sometimes
endorse efforts to force unanimity of sentiment not because they
consciously espouse authoritarianism, but because they hope thus to
assure maximum support for the nation and its people. No matter how
well intentioned they may be, however, those efforts themselves
create a graver danger than they overcome. The perils sought to be
suppressed are regularly overestimated. History shows in one
example after another how excessive have been the fears of earlier
generations, who shuddered at menaces that, with the benefit of
hindsight, we now know were mere shadows. This, in itself, should
induce the modern generation to view with prudent skepticism the
recurrent alarms about the fatal potentialities of dissent. In any
event, in a world torn between the merits of freedom and the
blandishments of totalitarian power, the lovers of freedom cannot
afford to sacrifice their moral superiority by adopting
totalitarian methods in order to create a self-deluding sense of
security. Suppression, once accepted as a way of life, is likely to
spread. It reinforces the herd urge toward orthodoxies of all kinds
-- religious, economic, and moral as well as political."
Pp. 82-83.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, dissenting.
I think that, in § 4(f) of the Internal Security Act, Congress
legislated immunity from prosecution under the
Page 367 U. S. 279
membership clause of the Smith Act. The first sentence of § 4(f)
is:
"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."
The immunity granted by that sentence is not, in my view,
restricted, as the Court holds, to
mere membership, that
is, to membership which is nominal, passive or theoretical. The
immunity also extends to "active and purposive membership,
purposive that is as to the organization's criminal ends," which is
the character of membership to which the Court today restricts the
application of the membership clause of the Smith Act.
In its approach to the relation of the first sentence of § 4(f)
to the membership clause of the Smith Act, I think the Court asks
the wrong question. The question is not whether the Congress meant
in § 4(f) to "repeal" the membership clause of the Smith Act. The
"repeal" of a statute connotes its erasure from the statute books.
The grant of immunity from prosecution under a criminal statute
merely suspends prosecution under the statute so long as the
immunity is not withdrawn. For example, when we recently decided in
Reina v. United States, 364 U. S. 507,
that the Narcotic Control Act of 1956 legislated immunity from
prosecution under state, as well as federal, narcotics laws, our
decision did not remotely suggest that the immunity effected the
"repeal" of either the state or the federal criminal statutes.
The Congress was faced with a dilemma in legislating the policy
of compulsory registration of Communists into the Internal Security
Act. This statute represented, in the words of the late John W.
Davis, a policy of "ventilation, rather than prohibition."
Communists were to be forced to expose themselves to public view in
order that the menace they present might be dealt with more
effectively. The registration provisions of the Act are the
Page 367 U. S. 280
very vitals of that measure. But compulsory disclosure of
membership would compel admission of a crime, or provide a link to
proof of a crime. Communists then could invoke their constitutional
right to silence and the registration provisions would be wrecked
on the rock of the Self-Incrimination Clause of the Fifth
Amendment. It is no disparagement of the Congress to say that their
deliberations reflect great uncertainty how to resolve the dilemma.
Congress wrote the Internal Security Act knowing that the privilege
against self-incrimination was a solid barrier against compulsory
self-incrimination by congressional fiat. The legislative history
of § 4(f) is murky, but I think there clearly emerges a
congressional decision to extend immunity from prosecution for any
membership in a Communist organization in order to safeguard
against constitutional frustration the policy of disclosure
embodied in the registration provisions. [
Footnote 4/1]
Page 367 U. S. 281
The purpose of the first sentence of § 4(f) seems clear in the
setting of the Act. In § 2 Congress describes the Communist Party
as a group bent on overthrowing the Government by force and
violence, such as is described in the Smith Act, and establishing a
totalitarian dictatorship in the United States. Section 4(a) makes
it a crime to conspire to that end. Sections 7 and 8 provide for
compulsory registration of Communist organizations and members.
Penalties for not registering are imposed. If members were required
to register under the 1950 Act and if membership were a crime under
the 1940 Act, then self-incrimination in violation of the Fifth
Amendment might be required by the registration requirements of the
1950 Act. Plainly it was with that problem that Congress dealt in §
4(f).
The bills introduced in the Eighty-first Congress [
Footnote 4/2] provided for compulsory
registration of members of the Communist Party, but afforded no
immunity for registering. When the House Committee reported out its
bill, [
Footnote 4/3] a
provision
Page 367 U. S. 282
was included which forbade receipt in evidence of the fact of
registration under the Internal Security Act. When the bill reached
the floor, Congressman Celler pointed out that the immunity
provision was constitutionally insufficient. In the first place,
that bill only provided that the fact of registration under the Act
should not be received in evidence against the registrant in
prosecutions under the Act. Congressman Celler pointed out that
there were other criminal statutes, including the Smith Act, for
which no immunity was granted. [
Footnote 4/4] He secondly pointed out that the immunity
to be constitutionally protective must be complete, and he
discussed
Counselman v. Hitchcock, 142 U.
S. 547, in support of that thesis. [
Footnote 4/5] During these debates and in response
to the challenge made by Congressman Celler, the manager of the
bill, Congressman Wood, offered an amendment extending the same
protection against prosecutions "for any alleged violation of any
other criminal statute." [
Footnote
4/6] It was adopted without discussion and the bill passed the
House.
At that juncture, it seems obvious that restricting the immunity
to use of the fact of registration in any criminal prosecution did
not satisfy the constitutional requirements. Such a limited
immunity was granted by statute in
Counselman v. Hitchcock,
supra. Yet, as the Court stated in that case, p.
142 U. S.
564:
"This, of course, protected him against the use of his testimony
against him or his property in any prosecution against him or his
property, in any criminal proceeding, in a court of the United
States. But it had only that effect. It could not, and would not,
prevent the use of his testimony to search out other testimony to
be used in evidence against him or his
Page 367 U. S. 283
property, in a criminal proceeding in such court. It could not
prevent the obtaining and the use of witnesses and evidence which
should be attributable directly to the testimony he might give
under compulsion, and on which he might be convicted, when
otherwise, and if he had refused to answer, he could not possibly
have been convicted."
Meanwhile, the Senate bill [
Footnote
4/7] was reported out. The late John W. Davis had stated in a
letter to the Senate Committee [
Footnote 4/8] that compulsory registration might make a
member "involuntarily incriminate himself." The Senate bill
accordingly provided that neither holding office nor membership in
the Communist Party should constitute a violation of certain
provisions of the bill, and it also provided that the fact of
registration should not be received in evidence against the
registrant in prosecutions under those provisions. Senator Kilgore,
in a minority report, [
Footnote
4/9] made the same point that Congressman Celler had made in
the House -- that this immunity provision did not even purport to
avoid self-incrimination in relation to the membership clause of
the Smith Act, and did not provide that complete immunity which
Counselman v. Hitchcock, supra, held essential.
Senator Lehman spoke to the same effect when the bill reached
the floor: [
Footnote 4/10]
"'In support of the statement made by the Senator from Illinois
that the real Communists would simply fail to register, and could
not be forced to register, and would be outside the control of the
law enforcement officials, is it not a fact that there would be
every reason why a real Communist should not register
Page 367 U. S. 284
-- because if he did register, would not he make himself liable
to incrimination under the Smith Act?'"
"Mr. DOUGLAS. 'Certainly.'"
"Mr. LEHMAN. 'So he would be virtually pleading guilty of a
penal offense; would he not?'"
"Mr. DOUGLAS. 'Yes; the real leaders would be.'"
Senator Lehman stated on another day of the debate: [
Footnote 4/11]
"What 'dyed in the wool' Communist will run to the nearest
registration office to list himself as such and expose himself to
the penalties contained in the Mundt-Ferguson bill? Obviously, if
he did, he would lose all his effectiveness as a Communist, besides
subjecting himself to the penalties set forth in this bill. He
would also expose himself to the penalties set forth in other laws,
such as the Smith Act, under which the 11 top Communist leaders
were recently convicted. In fact, registration would constitute
self-incrimination, if not under the terms of this law, then under
the terms of the Smith Act. Obviously, the Communists would not
register."
Senator Humphrey voiced the same objection: [
Footnote 4/12]
". . . his registration would be equivalent to testimony, and
under the interpretation of very prominent attorneys, [
Footnote 4/13] it could be that he could
be prosecuted under the Smith Act."
The answers to these objections were wide of the mark. Senator
McCarran said that the registrant was immunized
Page 367 U. S. 285
from prosecutions under § 4 of the bill. [
Footnote 4/14] The relevancy of the Smith Act was not
recognized. Senator Ferguson and Senator Mundt likewise did not
meet the point. They noted [
Footnote
4/15] that membership was held irrelevant to the Smith Act in
the prosecution of
Dennis v. United States, supra,
overlooking the fact that that case involved not membership, but a
conspiracy to practice the Communist dogma.
But no change in the bill was made in this respect before it
passed the Senate. The important changes in § 4(f) -- the ones that
are critical here -- took place in Conferences. [
Footnote 4/16] No contemporary statement of the
intended sweep of the revised § 4(f) is in the legislative record.
But I have set out enough history to indicate that the motivation
was clearly the fear that the immunity granted under the earlier
versions of the bill was not constitutionally sufficient to compel
registration, since it
Page 367 U. S. 286
did not extend to prosecutions under the membership clause of
the Smith Act.
When the bill came back from the Conference Committee,
Congressman Multer referred to § 4(f) in its new form and predicted
it would "vitiate one of the most important parts of the Smith
law." [
Footnote 4/17] No reply
was made to his comments. And only brief reference was made to §
4(f) in the Senate. Senator Kefauver said, [
Footnote 4/18]
"There is nothing in the bill which provides that, when a person
registers that fact shall not be used in evidence against him in
connection with the Smith Act. [
Footnote 4/19]"
But that statement is irrelevant to our problem, because the
Senator apparently did not realize that the bill had been amended
in Conference to include the words "or any other criminal statute."
Senator Kilgore stated that the Conference bill differed from the
one approved by the Judiciary Committee over his dissent, since it
nullified the Smith Act. [
Footnote
4/20] No one challenged the statement.
From this legislative history, it seems tolerably clear that one
purpose of § 4(f) was to protect registrants from prosecution under
the membership clause of the Smith Act.
The Court holds, however, that the first sentence of § 4(f) is
simply
"a mandate to the courts charged with the construction of
subsections (a) and (c) 'or . . . any other criminal statute' that
neither those two named criminal provisions nor any other shall be
construed so as to make 'membership . . .
per se a
violation.'"
If the phraseology were that immunity is extended only to
"membership
per se," there might be support for the
argument that the immunity granted by § 4(f) extends only
Page 367 U. S. 287
to nominal membership, excluding the type of active membership
which we have here. But the statute does not say "membership
per se." It provides that
"[n]either the holding of office nor membership in any Communist
organization shall constitute per se a violation of subsection (a)
or subsection (c) of this section or of any other criminal
statute."
The kind of membership given immunity is not restricted. It may
be nominal, short-term, long-term, dues-paying, non-dues-paying,
inactive, or active membership. Every type of membership is
included. What the Congress is saying is that no type of membership
shall violate alone or by itself (that is to say,
per se)
any criminal statute. When Congress said that membership "shall not
constitute per se" a violation of any criminal statute, it meant
that additional conduct besides membership, whatever its nature, is
necessary to constitute a violation. Only by transposing "per se"
in § 4(f) and making it modify "membership" can the Court's
argument be made plausible. That entails a substantial revision of
the Act and a drastic dilution of rights of immunity which have
been granted by it.
If the Court is correct in its view, the constitutionality of
registration provisions of the 1950 Act are called into question.
True, today's decision in
Communist Party of America v.
Subversive Activities Control Board, ante p.
367 U. S. 1, puts
off to another day the constitutionality of the registration
provisions in their conflict with the Fifth Amendment; I have noted
my dissent as to the provision of the registration requirements
that designated officials of the Party must complete, sign, and
file the Party's registration statement. But if "active membership"
remains a crime under the Smith Act, there would be a serious
question whether any Communist -- active or nominal -- could
constitutionally be compelled to register under the 1950 Act. For
it could be urged that the act of registering
Page 367 U. S. 288
would supply one link that might complete the chain of evidence
against him under the Smith Act. It is no answer to that contention
that mere membership would not support a conviction. As we said in
Blau v. United States, 340 U. S. 159,
340 U. S.
161:
"Whether such admissions by themselves would support a
conviction under a criminal statute is immaterial. Answers to the
questions asked by the grand jury would have furnished a link in
the chain of evidence needed in a prosecution of petitioner for
violation of (or conspiracy to violate) the Smith Act. Prior
decisions of this Court have clearly established that, under such
circumstances, the Constitution gives a witness the privilege of
remaining silent. The attempt by the courts below to compel
petitioner to testify runs counter to the Fifth Amendment as it has
been interpreted from the beginning."
This principle had been an established one ever since
Counselman v. Hitchcock, supra, was decided.
The registration provisions of the 1950 Act were the very heart
of that law. Disclosure of who the Communists were was the
provision from which all other controls stemmed. As the Senate
Report stated, [
Footnote 4/21]
the registration requirement is the "central provision" of the Act,
the purpose being
"(a) to expose the Communist movement and protect the public
against innocent and unwitting collaboration with it; (b) to
expose, and protect the public against, certain acts which are
declared unlawful."
A fair and literal reading of § 4(f) can save the 1950 Act
against this Fifth Amendment objection. By reading § 4(f) to
provide that being a member of the Communist Party shall not
"constitute per se" a crime, immunity from prosecution under the
membership clause of the
Page 367 U. S. 289
Smith Act is effected. And that is in full harmony with the
purpose to make something more than "membership" necessary for
conviction. That something more can be some kind of unlawful
activity. After the 1950 Act was passed, membership without other
activity was no longer sufficient for Smith Act prosecutions. That
seems to me to be the only fair way to read § 4(f). That conclusion
necessarily requires a dismissal of this indictment.
[
Footnote 4/1]
Senator McCarran, the floor manager of the bill in the Senate,
spoke of the exposure of Communists as one of the "principal
objectives" of the bill. 96 Cong.Rec. 14174.
The other principal objective was the definition of certain
conduct as criminal, it being the sense of Congress that existing
provisions to preserve the security of the Nation were inadequate
(H.R.Rep. No. 2980, 81st Cong., 2d Sess., p. 2; S.Rep. No. 1358,
81st Cong., 2d Sess., p. 7; 96 Cong.Rec. 14174-14175) and not
effective to combat the threat of subversion from within. The
criminal provisions of the Internal Security Act are broad and
comprehensive. Section 4(a) prohibits conspiracy to perform any act
which would substantially contribute to the establishment of a
totalitarian dictatorship under the direction and control of a
foreign power. Section 4(b) makes it unlawful for a government
employee without authorization to communicate classified
information to anyone whom he believes to be a representative of a
foreign government or member of a Communist organization, and §
4(c) prohibits the receipt of such information. Section 10
prohibits a Communist organization from using the mails or
broadcasting on any radio or television station without
designating, by printing on the envelope or announcement as the
case may be, that it is "a Communist organization." A member of a
Communist organization which is registered or ordered to register
by the Subversive Activities Control Board, who has knowledge or
notice of such registration or order, cannot fail to disclose his
membership when he is seeking or accepting employment by the United
States or at any defense facility. It is also unlawful for such a
person to hold employment under the United States, or in any
defense facility if he is a member of a Communist action
organization. § 5(a). Such a person cannot apply for or use a
passport. § 6(a). The Act also modified several existing statutes
dealing with subversives and espionage in order to expand their
coverage. These extensive criminal provisions belie the thought
that Congress regarded the Smith Act as the main gun in the arsenal
of anti-subversive weapons. The many allusions to the fact that
Communists were being more covert in their activities so as to
avoid coming within the provisions of the Smith Act make it clear
that that Act was not to be of major importance in the campaign
against domestic Communists.
[
Footnote 4/2]
S. 2311, 81st Cong., 2d Sess.; H.R. 9490, 81st Cong., 2d
Sess.
[
Footnote 4/3]
H.R. 9490, 81st Cong., 2d Sess.;
see H.R.Rep. No. 2980,
81st Cong., 2d Sess., p. 8.
[
Footnote 4/4]
96 Cong.Rec. 13739.
[
Footnote 4/5]
Id., 13740.
[
Footnote 4/6]
Id., 13761.
[
Footnote 4/7]
S. 4037, 81st Cong., 2d Sess.
[
Footnote 4/8]
S.Rep. No. 1358, 81st Cong., 1st Sess., pp. 43-44.
[
Footnote 4/9]
S.Rep. No. 2369, Pt. 2, 81st Cong., 2d Sess., pp. 12-13.
[
Footnote 4/10]
96 Cong.Rec. 14421.
[
Footnote 4/11]
Id., 14190.
[
Footnote 4/12]
Id., 14500.
[
Footnote 4/13]
This reference apparently was to Charles Evans Hughes, Jr. and
John W. Davis.
Id., 14500. The statement of Mr. Davis is
referred to in
367
U.S. 203fn4/8|>note 8,
supra. That of Mr. Hughes
can be found in Hearings on H.R. 5852, Senate Committee on the
Judiciary, 80th Cong., 2d Sess. 415-420.
[
Footnote 4/14]
"In the opinion of the chairman of the Committee on the
Judiciary, this provision leans over backward to protect Communists
against self-incrimination; but it is one of the many safeguards
written into the bill by the Judiciary Committee to assure the
complete constitutionality of the measure."
Id. 14175.
See also id., 14443.
[
Footnote 4/15]
"Mr. LONG. I was under the impression, from hearing the Senator
from New York [Sen. Lehman] yesterday, that he said that, under a
previous statute it was unlawful to belong to an organization that
advocated the overthrow of the United States Government by force. .
. ."
"
* * * *"
"Mr. FERGUSON. Is it not true that Judge Medina, in his charge
to the jury in the trial of the 11 Communists, told them that mere
membership in the Communist Party was not sufficient to warrant the
jury in convicting them under the Smith Act?"
"Mr. MUNDT. Precisely."
"Mr. FERGUSON. So that it could not apply to that law."
"Mr. MUNDT. It could not conceivably apply. Even if the
impression which the junior Senator from Louisiana had were
correct, it would still be an incorrect interpretation of the
act."
Id. 14235.
[
Footnote 4/16]
H.R.Conf.Rep. No. 3112, 81st Cong., 2d Sess., p. 49.
[
Footnote 4/17]
96 Cong.Rec. 15289.
[
Footnote 4/18]
Id., 15198.
[
Footnote 4/19]
Ibid.
[
Footnote 4/20]
Id., 15192.
[
Footnote 4/21]
S.Rep. No. 2369, 81st Cong., 2d Sess., p. 4.