SCALES v. UNITED STATES(1961)
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. 205-259.
Telford Taylor reargued the cause for petitioner. With him on the briefs was McNeill Smith.
John F. Davis reargued the cause for the United States. With him on the briefs were Solicitor General Rankin, Assistant Attorney General Yeagley, Kevin T. Maroney and Philip R. Monahan.
Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. [367 U.S. 203, 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. 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 [367 U.S. 203, 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. 2 For reasons given in this opinion we affirm the Court of Appeals.
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 [367 U.S. 203, 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. 219-222). We have also held that the proscribed membership must be active, and not nominal, passive or theoretical (infra, pp. 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
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. 219-224.) By its terms, then, subsection (f) does not [367 U.S. 203, 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. 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. [367 U.S. 203, 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. 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 [367 U.S. 203, 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:
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 [367 U.S. 203, 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. 5 Thus, the Senate passed [367 U.S. 203, 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, [367 U.S. 203, 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:
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 [367 U.S. 203, 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 preconference 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. 6 [367 U.S. 203, 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. 7 96 Cong. Rec. 15553-15554. [367 U.S. 203, 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.
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 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, 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, 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. 11 [367 U.S. 203, 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, 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.
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 . 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, 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 [367 U.S. 203, 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. 228; Yates, supra, at 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. 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 even-handed 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 ; [367 U.S. 203, 223] see Bridges v. Wixon, 326 U.S. 135 . A similar construction is called for here. 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 [367 U.S. 203, 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.
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. 17 [367 U.S. 203, 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, 18 and we can [367 U.S. 203, 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. 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 [367 U.S. 203, 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 516; Yates, supra, at 328; and see also Noto v. United States, decided today, post, p. 290), these factors have weight 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.
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, 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. 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 [367 U.S. 203, 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. 21
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, 318-322. This contention rests largely on the proposition that the [367 U.S. 203, 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, 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 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 331-333). It was concluded, however, that these and similar episodes were too "sporadic" and remote (id., 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. [367 U.S. 203, 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 [367 U.S. 203, 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 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 Francisco 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., 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 prerevolutionary techniques as the development of a special communication system through a newspaper similar to Pravda. Id., 332. Viewed together, [367 U.S. 203, 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 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 [367 U.S. 203, 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 [367 U.S. 203, 236] the principles of the reconstitution, a program of thorough re-education of the whole Party membership should be undertaken, and Lautner himself was charged with the duty of carrying out this re-education 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." [367 U.S. 203, 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:
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:
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:
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 [367 U.S. 203, 245] Communist Party was using to give concrete foundation to the theory, i. e., to bringing about the revolution:
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. 25 Wilkerson, like petitioner, told [367 U.S. 203, 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 [367 U.S. 203, 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. 26 In 1952 Childs attended a "Party [367 U.S. 203, 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,
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:
Since the evidence amply showed that Party leaders were continuously preaching during the indictment period [367 U.S. 203, 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 321-322. On this score, we think that the jury, under instructions which fully satisfied the requirements of Yates, 27 was entitled to infer from this [367 U.S. 203, 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 than 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. 226, supra), the instances of it being neither infrequent, remote in time nor casual. 28 It cannot be said that [367 U.S. 203, 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 [367 U.S. 203, 255] were entirely adequate. 29 The elements of petitioner's "knowledge" and "specific intent" (ante, p. 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 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, 666 -667, and in Maisenberg v. United States, 356 U.S. 670, 673 .
We hold that this prosecution does not fail for insufficiency of the proof.
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 [367 U.S. 203, 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 [367 U.S. 203, 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.
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 the 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. [367 U.S. 203, 259] There is no showing of any prejudice, nor that during the voir 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
[ 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. 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:
[ 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)] . . . .
[ 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 wilfully 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:
[ 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:
[ 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. 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, 372 , 373.
[ Footnote 21 ] As both sides appear to agree that the "clear and present danger" doctrine, as viewed and applied in Dennis, supra, at 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 [367 U.S. 203, 244] 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.
[ 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:
[ 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:
[ 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 Party 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.
[ 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 . . . ." 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 2 and Yates v. United States. 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 4 bars prosecutions under the membership clause of the Smith Act - and MR. JUSTICE DOUGLAS - that the [367 U.S. 203, 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 over-thrown 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. 5 He has therefore been deprived of his right to [367 U.S. 203, 261] be tried under a clearly defined, pre-existing "law of the land" as guaranteed by the Due Process Clause and I think his conviction should be reversed on that ground. 6
Secondly, I think it is important to point out the manner in which this case re-emphasizes 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." 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 [367 U.S. 203, 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. 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 1 ] 18 U.S.C. 2385.
[ Footnote 2 ] 341 U.S. 494 .
[ Footnote 3 ] 354 U.S. 298 .
[ Footnote 4 ] 50 U.S.C. 783 (f).
[ Footnote 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. 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 6 ] Cohen v. Hurley, 366 U.S. 117, 131 (dissenting opinion). See also Konigsberg v. State Bar of California, 366 U.S. 36, 56 (dissenting opinion).
[ Footnote 7 ] Konigsberg v. State Bar of California, 366 U.S. 36, 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 ; Wilkinson 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 68-71.
[ Footnote 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 506-511; Yates v. United States, supra, at 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 light-hearted comment that "It is by the goodness of God that in our country we have those three unspeakably precious [367 U.S. 203, 263] things: freedom of speech, freedom of conscience, and the prudence never to practice either of them." 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, 210 ; Direct Sales Co. v. United States, 319 U.S. 703, 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:
Not one single illegal act is charged to petitioner. That is why the essence of the crime covered by the indictment is merely belief 2 - belief in the proletarian revolution, belief in Communist creed. [367 U.S. 203, 266]
Spinoza summed up in a sentence much of the history of the struggle of man to think and speak what he believes:
That was the philosophy behind Board of Education v. Barnette, 319 U.S. 624, 641 -642:
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:
It also runs counter to Madison's views of the First Amendment as we are advised by his eminent biographer, Irving Brant:
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." 6 The formula he prepared for a society where ideas flourished was not punishment of the unorthodox [367 U.S. 203, 273] but education and enlightenment of the masses. Jefferson wrote to Madison on December 20, 1787: 7
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. [367 U.S. 203, 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, 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.:
Lincoln's full statement, made in 1848 and already referred to, reads:
[ Footnote 1 ] Following the Equator (1903), Vol. I, p. 198.
[ Footnote 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:
[ Footnote 3 ] N. Y. L. Doc., 143d Sess., 1920, Vol. 5, No. 30, p. 4.
[ Footnote 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 [367 U.S. 203, 269] 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 5 ] See the Appendix to this opinion, post, p. 275.
[ Footnote 6 ] 7 The Writings of Thomas Jefferson (Memorial ed. 1903) p. 37.
[ Footnote 7 ] 6 The Writings of Thomas Jefferson (Memorial ed. 1903) pp. 391-392.
[ Footnote 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:
I think that in 4 (f) of the Internal Security Act Congress legislated immunity from prosecution under the [367 U.S. 203, 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 [367 U.S. 203, 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. 1 [367 U.S. 203, 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 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, 3 a provision [367 U.S. 203, 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. 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. 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." 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. 564:
Senator Lehman spoke to the same effect when the bill reached the floor: 10
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. 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 [367 U.S. 203, 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." 17 No reply was made to his comments. And only brief reference was made to 4 (f) in the Senate. Senator Kefauver said, 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." 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. 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 [367 U.S. 203, 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. 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 [367 U.S. 203, 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, 161 :
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, 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 [367 U.S. 203, 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 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 [367 U.S. 203, 281] 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 antisubversive 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 2 ] S. 2311, 81st Cong., 2d Sess.; H. R. 9490, 81st Cong., 2d Sess.
[ Footnote 3 ] H. R. 9490, 81st Cong., 2d Sess.; see H. R. Rep. No. 2980, 81st Cong., 2d Sess., p. 8.
[ Footnote 4 ] 96 Cong. Rec. 13739.
[ Footnote 5 ] Id., 13740.
[ Footnote 6 ] Id., 13761.
[ Footnote 7 ] S. 4037, 81st Cong., 2d Sess.
[ Footnote 8 ] S. Rep. No. 1358, 81st Cong., 1st Sess., pp. 43-44.
[ Footnote 9 ] S. Rep. No. 2369, Pt. 2, 81st Cong., 2d Sess., pp. 12-13.
[ Footnote 10 ] 96 Cong. Rec. 14421.
[ Footnote 11 ] Id., 14190.
[ Footnote 12 ] Id., 14500.
[ Footnote 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 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 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 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 . . . .
[ Footnote 16 ] H. R. Conf. Rep. No. 3112, 81st Cong., 2d Sess., p. 49.
[ Footnote 17 ] 96 Cong. Rec. 15289.
[ Footnote 18 ] Id., 15198.
[ Footnote 19 ] Ibid.
[ Footnote 20 ] Id., 15192.
[ Footnote 21 ] S. Rep. No. 2369, 81st Cong., 2d Sess., p. 4. [367 U.S. 203, 290]