MR. JUSTICE HARLAN delivered the opinion of the Court.
We brought these cases here to consider certain questions arising under the Smith Act which have not heretofore been passed upon by this Court, and otherwise to review the convictions of these petitioners for conspiracy to violate that Act. Among other things, the convictions are claimed to rest upon an application of the Smith Act which is hostile to the principles upon which its constitutionality was upheld in Dennis v. United States, 341 U.S. 494.
These 14 petitioners stand convicted, after a jury trial in the United States District Court for the Southern District of California, upon a single count indictment charging them with conspiring (1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach, all with the intent of causing the overthrow of the Government by force and violence as speedily as circumstances would permit. Act of June 28, 1940, § 2 (a) (1) and (3), 54
Upon conviction each of the petitioners was sentenced to five years' imprisonment and a fine of $10,000. The
In the view we take of this case, it is necessary for us to consider only the following of petitioners' contentions: (1) that the term "organize" as used in the Smith Act was erroneously construed by the two lower courts; (2) that the trial court's instructions to the jury erroneously excluded from the case the issue of "incitement to action"; (3) that the evidence was so insufficient as to require this Court to direct the acquittal of these petitioners; and (4) that petitioner Schneiderman's conviction was precluded by this Court's judgment in Schneiderman v. United States, 320 U.S. 118, under the doctrine of collateral estoppel.
I. The Term "Organize."
One object of the conspiracy charged was to violate the third paragraph of 18 U. S. C. § 2385, which provides:
The statute does not define what is meant by "organize." Dictionary definitions are of little help, for, as those offered us sufficiently show, the term is susceptible
The legislative history of the Smith Act is no more revealing as to what Congress meant by "organize" than is the statute itself. The Government urges that "organize" should be given a broad meaning since acceptance of the term in its narrow sense would require attributing to Congress the intent that this provision of the statute should not apply to the Communist Party as it then existed. The argument is that since the Communist Party as it then existed had been born in 1919 and the Smith Act was not passed until 1940, the use of "organize" in its narrow sense would have meant that these provisions of the statute would never have reached the act of organizing the Communist Party, except for the fortuitous rebirth of the Party in 1945—an occurrence which, of course, could not have been foreseen in 1940. This, says the Government, could hardly have been the congressional purpose since the Smith Act as a whole was particularly aimed at the Communist Party, and its "organizing" provisions were especially directed at the leaders of the movement.
We find this argument unpersuasive. While the legislative history of the Smith Act does show that concern about communism was a strong factor leading to this legislation, it also reveals that the statute, which was patterned on state anti-sedition laws directed not against Communists but against anarchists and syndicalists, was aimed equally at all groups falling within its scope.
Nor do there appear to be any other reasons for ascribing to "organize" the Government's broad interpretation. While it is understandable that Congress should have wished to supplement the general provisions of the Smith Act by a special provision directed at the activities of those responsible for creating a new organization of the proscribed type, such as was the situation involved in the Dennis case, we find nothing which suggests that the "organizing" provision was intended to reach beyond this, that is, to embrace the activities of those concerned with carrying on the affairs of an already existing organization. Such activities were already amply covered by other provisions of the Act, such as the "membership" clause,
We are thus left to determine for ourselves the meaning of this provision of the Smith Act, without any revealing guides as to the intent of Congress. In these circumstances we should follow the familiar rule that criminal statutes are to be strictly construed and give to "organize" its narrow meaning, that is, that the word refers only to acts entering into the creation of a new organization, and not to acts thereafter performed in carrying on its activities, even though such acts may loosely be termed "organizational." See United States v. Wiltberger, supra; United States v. Lacher, 134 U.S. 624, 628; United States v. Gradwell, 243 U.S. 476, 485; Fasulo v. United States, 272 U.S. 620, 628. Such indeed is the normal usage of the word "organize,"
The Government contends that even if the trial court was mistaken in its construction of the statute, the error was harmless because the conspiracy charged embraced both "advocacy" of violent overthrow and "organizing" the Communist Party, and the jury was instructed that in order to convict it must find a conspiracy extending to both objectives. Hence, the argument is, the jury must in any event be taken to have found petitioners guilty of conspiring to advocate, and the convictions are supportable on that basis alone. We cannot accept this proposition for a number of reasons. The portions of the trial court's instructions relied on by the Government are not sufficiently clear or specific to warrant our drawing the inference that the jury understood it must find an agreement extending to both "advocacy" and "organizing" in order to convict.
We conclude, therefore, that since the Communist Party came into being in 1945, and the indictment was not returned until 1951, the three-year statute of limitations had run on the "organizing" charge, and required the withdrawal of that part of the indictment from the jury's consideration. Samuel v. United States, 169 F.2d 787, 798. See also Haupt v. United States, 330 U.S. 631, 641, n. 1; Stromberg v. California, supra, at 368.
II. Instructions to the Jury.
Petitioners contend that the instructions to the jury were fatally defective in that the trial court refused to charge that, in order to convict, the jury must find that the advocacy which the defendants conspired to promote was of a kind calculated to "incite" persons to action for the forcible overthrow of the Government. It is argued that advocacy of forcible overthrow as mere abstract doctrine is within the free speech protection of the First
We print in the margin the pertinent parts of the trial court's instructions.
There can be no doubt from the record that in so instructing the jury the court regarded as immaterial, and intended to withdraw from the jury's consideration, any issue as to the character of the advocacy in terms of its capacity to stir listeners to forcible action. Both the petitioners and the Government submitted proposed instructions which would have required the jury to find
We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not.
The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v. Washington, 236 U.S. 273, and Schenck v. United States, 249 U.S. 47.
We need not, however, decide the issue before us in terms of constitutional compulsion, for our first duty is to construe this statute. In doing so we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked, or that it used the words "advocate" and "teach" in their ordinary dictionary meanings when they had already been construed as terms of art carrying a special and limited connotation. See Willis v. Eastern Trust & Banking Co., supra; Joines v. Patterson, supra; James v. Appel, 192 U.S. 129, 135. The Gitlow case and the New York Criminal Anarchy Act there involved, which furnished the prototype for the Smith Act, were both known and adverted to by Congress in the course of the legislative proceedings.
The Government's reliance on this Court's decision in Dennis is misplaced. The jury instructions which were refused here were given there,
In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. It seems to have considered that, since "inciting" speech is usually thought of as something calculated to induce immediate action, and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy, irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a specific intent to accomplish overthrow. In other words, the District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action.
The Court of Appeals took a different view from that of the District Court. While seemingly recognizing that the proscribed advocacy must be associated in some way with action, and that the instructions given the jury here fell short in that respect, it considered that the instructions which the trial court refused were unnecessary in this instance because establishment of the conspiracy, here charged under the general conspiracy statute, required proof of an overt act, whereas in Dennis, where the conspiracy was charged under the Smith Act, no overt act was required.
We think, thus, that both of the lower courts here misconceived Dennis.
In light of the foregoing we are unable to regard the District Court's charge upon this aspect of the case as adequate. The jury was never told that the Smith Act does not denounce advocacy in the sense of preaching abstractly the forcible overthrow of the Government. We think that the trial court's statement that the proscribed advocacy must include the "urging," "necessity," and "duty" of forcible overthrow, and not merely its "desirability" and "propriety," may not be regarded as a sufficient substitute for charging that the Smith Act reaches only advocacy of action for the overthrow of government by force and violence. The essential distinction
Nor can we accept the Government's argument that the District Court was justified in not charging more than it did because the refused instructions proposed by both sides specified that the advocacy must be of a character reasonably calculated to "incite" to forcible overthrow, a term which, it is now argued, might have conveyed to the jury an implication that the advocacy must be of immediate action. Granting that some qualification of the proposed instructions would have been permissible to dispel such an implication, and that it was not necessary even that the trial court should have employed the particular term "incite," it was nevertheless incumbent on the court to make clear in some fashion that the advocacy must be of action and not merely abstract doctrine. The instructions given not only do not employ the word
What we find lacking in the instructions here is illustrated by contrasting them with the instructions given to the Dennis jury, upon which this Court's sustaining of the convictions in that case was bottomed. There the trial court charged:
We recognize that distinctions between advocacy or teaching of abstract doctrines, with evil intent, and that which is directed to stirring people to action, are often subtle and difficult to grasp, for in a broad sense, as Mr. Justice Holmes said in his dissenting opinion in Gitlow,
III. The Evidence.
The determinations already made require a reversal of these convictions. Nevertheless, in the exercise of our power under 28 U. S. C. § 2106 to "direct the entry of such appropriate judgment . . . as may be just under the circumstances," we have conceived it to be our duty to scrutinize this lengthy record
On this basis we have concluded that the evidence against petitioners Connelly, Kusnitz, Richmond, Spector, and Steinberg is so clearly insufficient that their acquittal should be ordered, but that as to petitioners Carlson, Dobbs, Fox, Healey (Mrs. Connelly), Lambert, Lima, Schneiderman, Stack, and Yates, we would not be justified
At the outset, in view of the conclusions reached in Part I of this opinion, we must put aside as against all petitioners the evidence relating to the "organizing" aspect of the alleged conspiracy, except insofar as it bears upon the "advocacy" charge. That, indeed, dilutes in a substantial way a large part of the evidence, for the record unmistakably indicates that the Government relied heavily on its "organizing" charge. Two further general observations should also be made about the evidence as to the "advocacy" charge. The first is that both the Government and the trial court evidently proceeded on the theory that advocacy of abstract doctrine was enough to offend the Smith Act, whereas, as we have held, it is only advocacy of forcible action that is proscribed. The second observation is that both the record and the Government's brief in this Court make it clear that the Government's thesis was that the Communist Party, or at least the Communist Party of California, constituted the conspiratorial group, and that membership in the conspiracy could therefore be proved by showing that the individual petitioners were actively identified with the Party's affairs and thus inferentially parties to its tenets. This might have been well enough towards making out the Government's case if advocacy of the abstract doctrine of forcible overthrow satisfied the Smith Act, for we would at least have little difficulty in saying on this record that a jury could justifiably conclude that such was one of the tenets of the Communist Party; and there was no dispute as to petitioners' active identification with Party affairs. But when it comes to Party advocacy or teaching in the sense of a call to forcible action at some future time we cannot but regard this record as strikingly deficient. At best this voluminous record shows but a half dozen or so scattered incidents which, even under the loosest
We must, then, look elsewhere than to the evidence concerning the Communist Party as such for the existence of the conspiracy to advocate charged in the indictment. As to the petitioners Connelly, Kusnitz, Richmond, Spector, and Steinberg we find no adequate evidence in the record which would permit a jury to find that they were members of such a conspiracy. For all purposes relevant here, the sole evidence as to them was that they had long been members, officers or functionaries of the Communist Party of California; and that standing alone, as Congress has enacted in § 4 (f) of the Internal Security Act of 1950,
Moreover, apart from the inadequacy of the evidence to show, at best, more than the abstract advocacy and teaching of forcible overthrow by the Party, it is difficult to perceive how the requisite specific intent to accomplish such overthrow could be deemed proved by a showing of mere membership or the holding of office in the Communist Party. We therefore think that as to these petitioners the evidence was entirely too meagre to justify putting them to a new trial, and that their acquittal should be ordered.
As to the nine remaining petitioners, we consider that a different conclusion should be reached. There was testimony from the witness Foard, and other evidence, tying Fox, Healey, Lambert, Lima, Schneiderman, Stack, and Yates to Party classes conducted in the San Francisco area during the year 1946, where there occurred what might be considered to be the systematic teaching and advocacy of illegal action which is condemned by the statute. It might be found that one of the purposes of such classes was to develop in the members of the group a readiness to engage at the crucial time, perhaps during war or during attack upon the United States from without, in such activities as sabotage and street fighting, in order to divert and diffuse the resistance of the authorities and if possible to seize local vantage points. There was also testimony as to activities in the Los Angeles area, during the period covered by the indictment, which might be considered to amount to "advocacy of action," and with which petitioners Carlson and Dobbs were linked. From the
Nor can we say that the evidence linking these nine petitioners to that sort of advocacy, with the requisite specific intent, is so tenuous as not to justify their retrial under proper legal standards. Fox, Healey, Lambert, Lima, Schneiderman, Stack, and Yates, as members of the State and San Francisco County Boards, were shown to have been closely associated with Ida Rothstein, the principal teacher of the San Francisco classes, who also during this same period arranged in a devious and conspiratorial manner for the holding of Board meetings at the home of the witness Honig, which were attended by these petitioners. It was also shown that from time to time instructions emanated from the Boards or their members to instructors of groups at lower levels. And while none
As to these nine petitioners, then, we shall not order an acquittal.
Before leaving the evidence, we consider it advisable, in order to avoid possible misapprehension upon a new trial, to deal briefly with petitioners' contention that the evidence was insufficient to prove the overt act required for conviction of conspiracy under 18 U. S. C. § 371. Only 2 of the 11 overt acts alleged in the indictment to have occurred within the period of the statute of limitations were proved. Each was a public meeting held under Party auspices at which speeches were made by one or more of the petitioners extolling leaders of the Soviet Union and criticizing various aspects of the foreign policy of the United States. At one of the meetings an appeal for funds was made. Petitioners contend that these meetings do not satisfy the requirement of the statute that there be shown an act done by one of the conspirators "to effect the object of the conspiracy." The Government concedes that nothing unlawful was shown to have been said or done at these meetings, but contends that these occurrences nonetheless sufficed as overt acts under the jury's findings.
While upon a new trial the overt act must be found, in view of what we have held, to have been in furtherance of a conspiracy to "advocate," rather than to "organize," we are not prepared to say that one of the episodes relied on here could not be found to be in furtherance of such an objective, if, under proper instructions, a jury should find that the Communist Party was a vehicle through which the alleged conspiracy was promoted. While in view of our acquittal of Steinberg, the first of these episodes, in which he is alleged to have been involved, may no longer be relied on as an overt act, this would not affect the second episode, in which petitioner Schneiderman was alleged and proved to have participated.
For the foregoing reasons we think that the way must be left open for a new trial to the extent indicated.
IV. Collateral Estoppel.
There remains to be dealt with petitioner Schneiderman's claim based on the doctrine of collateral estoppel by judgment. Petitioner urges that in Schneiderman v. United States, 320 U.S. 118, a denaturalization proceeding in which he was the prevailing party, this Court made determinations favorable to him which are conclusive in this proceeding under the doctrine of collateral estoppel. Specifically, petitioner contends that the Schneiderman decision determined, for purposes of this proceeding, (1) that the teaching of Marxism-Leninism by the Communist Party was not necessarily the advocacy of violent overthrow of government; (2) that at least one tenable conclusion to be drawn from the evidence was that the Communist Party desired to achieve its goal of socialism through peaceful means; (3) that it could not be presumed, merely because of his membership or officership in the Communist Party, that Schneiderman adopted an illegal interpretation of Marxist doctrine; and finally, (4) that absent proof of overt acts indicating that Schneiderman personally adopted a reprehensible interpretation, the Government had failed to establish its burden by the clear and unequivocal evidence necessary in a denaturalization case. In the courts below, petitioner urged unsuccessfully that these determinations were conclusive in this proceeding under the doctrine of collateral estoppel, and entitled him either to an acquittal or to special instructions to the jury. He makes the same contentions here.
We are in agreement with petitioner that the doctrine of collateral estoppel is not made inapplicable by the fact that this is a criminal case, whereas the prior proceedings were civil in character. United States v. Oppenheimer, 242 U.S. 85. We agree further that the nonexistence of a fact may be established by a judgment no less than its
We differ with petitioner, first of all, in his estimate of what the Schneiderman case determined for purposes of the doctrine of collateral estoppel. That doctrine makes conclusive in subsequent proceedings only determinations of fact, and mixed fact and law, that were essential to the decision. Commissioner v. Sunnen, 333 U.S. 591, 601-602; Tait v. Western Maryland R. Co., 289 U.S. 620; The Evergreens v. Nunan, 141 F.2d 927, 928. As we read the Schneiderman opinion, the only determination essential to the decision was that Schneiderman had not, prior to 1927, adopted an interpretation of the Communist Party's teachings featuring "agitation and exhortation calling for present violent action." 320 U. S., at 157-159. If it be accepted that the holding extended in the alternative to the character of advocacy engaged in by the Communist Party, then the essential finding was that the Party had not, in 1927, engaged in "agitation and exhortation calling for present violent action." Ibid. The Court in Schneiderman certainly did not purport to determine what the doctrinal content of "Marxism-Leninism" might be at all times and in all places. Nor did it establish that the books and pamphlets introduced against
It is therefore apparent that the determinations made by this Court in Schneiderman could not operate as a complete bar to this proceeding. Wholly aside from the fact that the Court was there concerned with the state of affairs existing in 1927, whereas we are concerned here with the period 1948-1951, the issues in the present case are quite different. We are not concerned here with whether petitioner has engaged in "agitation and exhortation calling for present violent action," whether in 1927 or later. Even if it were conclusively established against the Government that neither petitioner nor the Communist Party had ever engaged in such advocacy, that circumstance would constitute no bar to a conviction under 18 U. S. C. § 371 of conspiring to advocate forcible overthrow of government in violation of the Smith Act. It is not necessary for conviction here that advocacy of "present violent action" be proved. Petitioner's demand for judgment of acquittal must therefore be rejected. The decision in Federal Trade Commission v. Cement Institute, 333 U.S. 683, 708-709, is precisely in point and is controlling.
What we have said we think also disposes of petitioner's contention that the trial court should have instructed the jury that certain evidentiary or subordinate issues must be taken as conclusively determined in his favor. The argument is that the determinations made in the Schneiderman case are not wholly irrelevant to this case, even if they do not conclude it, and hence that petitioner should be entitled to an instruction giving those determinations such partial conclusive effect as they might warrant. We think, however, that the doctrine
Since there must be a new trial, we have not found it necessary to deal with the contentions of the petitioners as to the fairness of the trial already held. The judgment of the Court of Appeals is reversed, and the case remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE BURTON, concurring in the result.
I agree with the result reached by the Court, and with the opinion of the Court except as to its interpretation of the term "organize" as used in the Smith Act. As to that, I agree with the interpretation given it by the Court of Appeals. 225 F.2d 146.
MR. JUSTICE BRENNAN and MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.
I would reverse every one of these convictions and direct that all the defendants be acquitted. In my judgment the statutory provisions on which these prosecutions are based abridge freedom of speech, press and assembly in violation of the First Amendment to the United States Constitution. See my dissent and that of MR. JUSTICE DOUGLAS in Dennis v. United States, 341 U.S. 494, 579, 581. Also see my opinion in American Communications Assn. v. Douds, 339 U.S. 382, 445.
The kind of trials conducted here are wholly dissimilar to normal criminal trials. Ordinarily these "Smith Act" trials are prolonged affairs lasting for months. In part this is attributable to the routine introduction in evidence of massive collections of books, tracts, pamphlets, newspapers, and manifestoes discussing Communism, Socialism, Capitalism, Feudalism and governmental institutions in general, which, it is not too much to say, are turgid, diffuse, abstruse, and just plain dull. Of course, no juror can or is expected to plow his way through this jungle of verbiage. The testimony of witnesses is comparatively insignificant. Guilt or innocence may turn on what Marx or Engels or someone else wrote or advocated as much as a hundred or more years ago. Elaborate, refined distinctions are drawn between "Communism," "Marxism," "Leninism," "Trotskyism," and "Stalinism." When the propriety of obnoxious or unorthodox views about government is in reality made the crucial issue, as it must be in cases of this kind, prejudice makes conviction inevitable except in the rarest circumstances.
Since the Court proceeds on the assumption that the statutory provisions involved are valid, however, I feel free to express my views about the issues it considers.
First.—I agree with Part I of the Court's opinion that deals with the statutory term, "organize," and holds that the organizing charge in the indictment was barred by the three-year statute of limitations.
Second.—I also agree with the Court insofar as it holds that the trial judge erred in instructing that persons could be punished under the Smith Act for teaching and advocating forceful overthrow as an abstract principle. But on the other hand, I cannot agree that the instruction which the Court indicates it might approve is constitutionally permissible. The Court says that persons can be punished for advocating action to overthrow the Government by force and violence, where those to whom the advocacy is addressed are urged "to do something, now or in the future, rather than merely to believe in something." Under the Court's approach, defendants could still be convicted simply for agreeing to talk as distinguished from agreeing to act. I believe that the First Amendment forbids Congress to punish people for talking about public affairs, whether or not such discussion incites to action, legal or illegal. See Meiklejohn, Free Speech and Its Relation to Self-Government. Cf. Chafee, Book Review, 62 Harv. L. Rev. 891. As the Virginia Assembly said in 1785, in its "Statute for Religious Liberty," written by Thomas Jefferson, "it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order. . . ."
Third.—I also agree with the Court that petitioners, Connelly, Kusnitz, Richmond, Spector, and Steinberg, should be ordered acquitted since there is no evidence that they have ever engaged in anything but "wholly lawful activities." But in contrast to the Court, I think the same action should also be taken as to the remaining nine defendants. The Court's opinion summarizes the strongest evidence offered against these defendants. This summary reveals a pitiful inadequacy of proof to show beyond a reasonable doubt that the defendants were guilty of conspiring to incite persons to act to overthrow the Government. The Court says:
It seems unjust to compel these nine defendants, who have just been through one four-month trial, to go through the ordeal of another trial on the basis of such flimsy evidence. As the Court's summary demonstrates, the evidence introduced during the trial against these defendants was insufficient to support their conviction. Under such circumstances, it was the duty of the trial judge to direct a verdict of acquittal. If the jury had
Fourth.—The section under which this conspiracy indictment was brought, 18 U. S. C. § 371, requires proof of an overt act done "to effect the object of the conspiracy." Originally, 11 such overt acts were charged here. These 11 have now dwindled to 2, and as the Court says:
The Court holds that attendance at these lawful and orderly meetings constitutes an "overt act" sufficient to meet the statutory requirements. I disagree.
The requirement of proof of an overt act in conspiracy cases is no mere formality, particularly in prosecutions like these which in many respects are akin to trials for treason. Article III, § 3, of the Constitution provides
In essence, petitioners were tried upon the charge that they believe in and want to foist upon this country a different and to us a despicable form of authoritarian government in which voices criticizing the existing order are summarily silenced. I fear that the present type of prosecutions are more in line with the philosophy of authoritarian government than with that expressed by our First Amendment.
Doubtlessly, dictators have to stamp out causes and beliefs which they deem subversive to their evil regimes.
MR. JUSTICE CLARK, dissenting.
The petitioners, principal organizers and leaders of the Communist Party in California, have been convicted for a conspiracy covering the period 1940 to 1951. They were engaged in this conspiracy with the defendants in Dennis v. United States, 341 U.S. 494 (1951). The Dennis defendants, named as co-conspirators but not indicted with the defendants here, were convicted in New York under the former conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U. S. C. (1946 ed.) § 11. They have served or are now serving prison terms as a result of their convictions.
The conspiracy charged here is the same as in Dennis, except that here it is geared to California conditions, and brought, for the period 1948 to 1951, under the general conspiracy statute, 18 U. S. C. § 371, rather than the old conspiracy section of the Smith Act. The indictment
The conspiracy includes the same group of defendants as in the Dennis case though petitioners here occupied a lower echelon in the party hierarchy. They, nevertheless, served in the same army and were engaged in the same mission. The convictions here were based upon evidence closely paralleling that adduced in Dennis and in United States v. Flynn, 216 F.2d 354 (C. A. 2d Cir. 1954), both of which resulted in convictions. This Court laid down in Dennis the principles governing such prosecutions and they were closely adhered to here, although the nature of the two cases did not permit identical handling.
I would affirm the convictions. However, the Court has freed five of the convicted petitioners and ordered new trials for the remaining nine. As to the five, it says that the evidence is "clearly insufficient." I agree with the Court of Appeals, the District Court, and the jury that the evidence showed guilt beyond a reasonable doubt.
I cannot agree that half of the indictment against the remaining nine petitioners should be quashed as barred by the statute of limitations. I agree with my Brother BURTON that the Court has incorrectly interpreted the
While the holding of the Court requires a reversal of the case and a retrial, the Court very properly considers the instructions given by the trial judge. I do not agree with the conclusion of the Court regarding the instructions, but I am highly pleased to see that it disposes of this problem so that on the new trial instructions will be given that will at least meet the views of the Court. I have studied the section of the opinion concerning the instructions and frankly its "artillery of words" leaves me confused as to why the majority concludes that the charge as given was insufficient. I thought that Dennis merely held that a charge was sufficient where it requires a finding that "the Party advocates the theory that there is a duty and necessity to overthrow the Government by force and violence. . . . not as a prophetic insight or as a bit of . . . speculation, but as a program for winning adherents and as a policy to be translated into action" as soon as the circumstances permit. 341 U. S., at 546-547 (concurring opinion). I notice however that to the majority
I have read this statement over and over but do not seem to grasp its meaning for I see no resemblance between it and what the respected Chief Justice wrote in Dennis, nor do I find any such theory in the concurring opinions. As I see it, the trial judge charged in essence all that was required under the Dennis opinions, whether one takes the view of the Chief Justice or of those concurring in the judgment. Apparently what disturbs the Court now is that the trial judge here did not give the Dennis charge although both the prosecution and the defense asked that it be given. Since he refused to grant these requests I suppose the majority feels that there must be some difference between the two charges, else the one that was given in Dennis would have been followed here. While there may be some distinctions between the charges, as I view them they are without material difference. I find, as the majority intimates, that the distinctions are too "subtle and difficult to grasp."
However, in view of the fact that the case must be retried, regardless of the disposition made here on the charges, I see no reason to engage in what becomes nothing more than an exercise in semantics with the majority about this phase of the case. Certainly if I had been sitting at the trial I would have given the Dennis charge, not because I consider it any more correct, but simply because it had the stamp of approval of this Court. Perhaps this approach is too practical. But I am sure the trial judge realizes now that practicality often pays.
I should perhaps add that I am in agreement with the Court in its holding that petitioner Schneiderman can find no aid from the doctrine of collateral estoppel.
"SEC. 2. (a) It shall be unlawful for any person—
"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence . . . ;
"(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;
"(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.
"SEC. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of this title.
"SEC. 5. (a) Any person who violates any of the provisions of this title shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than ten years, or both."
Effective September 1, 1948, the Smith Act was repealed, and substantially re-enacted as 18 U. S. C. § 2385, as part of the 1948 recodification. 62 Stat. 808. Section 2385 provided in pertinent part as follows:
"Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States . . . by force or violence . . . ; or
"Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence . . . ; or
"Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both . . . ."
For convenience the original Smith Act and § 2385 will both be referred to in this opinion as "the Smith Act."
It will be noted that the recodification did not carry into § 2385 the conspiracy section of the Smith Act (§ 3). The latter provision, however, was in substance restored to § 2385 on July 24, 1956, to apply to offenses committed on or after that date. 70 Stat. 623.
The conspiracy charged in this case was laid under § 3 of the Smith Act for the period 1940 to September 1, 1948, and for the period thereafter, down to the filing of the indictment in 1951, under the general conspiracy statute, 18 U. S. C. § 371, providing in pertinent part as follows:
"If two or more persons conspire . . . to commit any offense against the United States, . . . and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both."
"As used in the Smith Act and the indictment:
"(1) the word `advocate' means to urge or `to plead in favor of; . . . to support, vindicate, or recommend publicly . . .';
"(2) the word `teach' means `to instruct . . . show how . . . to guide the studies of . . .';
"The holding of a belief or opinion does not constitute advocacy or teaching. Hence the Smith Act does not prohibit persons who may believe that the violent overthrow and destruction of the Government of the United States is probable or inevitable from expressing that belief. Whether such belief be reasonable or unreasonable is immaterial. Prediction or prophecy is not advocacy.
"Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government of the United States is not within the issue of the indictment here and can constitute no basis for any finding against the defendants.
"The kind of advocacy and teaching which is charged and upon which your verdict must be reached is not merely a desirability but a necessity that the Government of the United States be overthrown and destroyed by force and violence and not merely a propriety but a duty to overthrow and destroy the Government of the United States by force and violence.
"The word `wilfully,' as used in the indictment, means a statement or declaration made or other act done with the specific intent to cause or bring about the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit.
"The defendants, in common with all other persons living under our Constitution, have a general right protected by the First Amendment to hold, express, teach and advocate opinions, even though their opinions are rejected by the overwhelming majority of the American people; and have the further right to organize or combine peaceably with other persons for the purpose of spreading and promoting their opinions more effectively.
"Whether you agree with these opinions or whether they seem to you reasonable, unreasonable, absurd, distasteful or hateful has no bearing whatever on the right of other persons to maintain them and to seek to persuade others of their validity.
"No inference that any of the defendants knowingly and wilfully conspired as charged in the indictment, or intended to cause or bring about the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit, may be drawn from the advocacy or teaching of socialism or other economic or political or social doctrines, by reason of any unpopularity of such doctrines or by reason of any opinion you may hold with respect to whether such doctrines, or the opinions or beliefs of any of the defendants, are unreasonable, distasteful, absurd or hateful.
"The defendants, in common with other persons living under our Constitution, have the right protected by the First Amendment to criticize our system of Government and the Government itself, even though the speaking or writing of such criticism may undermine confidence in the Government or cause or increase discontent. They have the right also to criticize the foreign policy of the United States and the role being played by this country in international affairs; and to praise the foreign policy of other governments and the role being played by those governments in international affairs.
"The right of the defendants to enjoy such freedom of expression is unaffected by whether or not the opinions spoken or published may seem to you to be crudely intemperate, or to contain falsehoods, or to be designed to embarrass the Government. No inference of conspiracy to advocate and teach the necessity and duty of overthrow and destruction of the Government of the United States by force and violence, or of intent to cause or bring about the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit, may be drawn from such expressions alone."
"Where the Smith Act, the statute which these defendants are charged with conspiring to violate, speaks of advocating and teaching the duty and necessity of overthrowing the Government by force and violence, this refers only to statements which, in the language of incitement to action, urge immediate action to overthrow the then existing government under the then existing circumstances. A statement on the other hand, that, if our form of government should change in the future, violent overthrow of the government would then become necessary and right, is not within the Smith Act's prohibition and would not constitute any basis for a finding against the defendants here.
"For purposes of this trial, a person can be said to teach or advocate the overthrow and destruction of the Government of the United States by force and violence only when his expression are designed to induce action, rather than discussion or belief, and only when they are expressed in language which, under the circumstances in which it is used, is reasonably and ordinarily calculated to incite persons to such action, rather than merely to discussion or belief.
"The burden is on the prosecution to show beyond a reasonable doubt that a common understanding existed among the alleged co-conspirators as to the specific content of expressions amounting to advocacy of the overthrow and destruction of the Government by force and violence. The Government must further show that this understanding included and understanding that such advocacy would be in language amounting to incitement to action and that it would take place under circumstances such as to lead to a probability that it would inspire persons to take action toward violent overthrow.
"The Government's burden is not met by proof that the defendant shared certain beliefs and made joint efforts to persuade other persons to adopt them, no matter what you may find the content of such beliefs to have been, or whether you may agree or disagree with such beliefs."
The Government's proposed instruction was:
"In further construction and interpretation of the statute I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and assembly of persons who teach and advocate the overthrow or destruction of the Government of the United States by force and violence and to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit."
"Finally, [referring to Dennis] the opinion of the Court of Appeals and a concurring opinion in the Supreme Court gave approval of instructions of the trial judge in Dennis requiring the jury to find `language of incitement' was used by the conspirators there. Another phrase given approval is that the doctrine of destruction had become a `rule of action.' In conjunction with an indictment based upon such a statute proscribing organization for the purpose of teaching and advocating overthrow, but which required neither proof of overt acts nor a specifically planned objective, such precautionary instructions were well enough. But these expressions of the judges in instructions in connection with the original statute established no unalterable requirement that such phrases themselves be used ipsissimis verbis where the changes in the basic law and an entirely different indictment predicated upon the conspiracy statute have rendered admonitions to a jury in such language supererogatory." And further at p. 162:
"The gist of the substantive crime of conspiracy is that an unlawful combination and agreement becomes a positive crime only when some of the proved conspirators enter the field of action pursuant to the criminal design. Therefore, if the conspiracy did not become a rule of action pursuant to the proscribed intent, there would have been no violation of the conspiracy statute. The use of such phrases [as incitement] in instructions might have been well enough where a violation of the Smith Act alone was charged in its original form. It would be folly to command imperatively that these specific phrases be each used in instructions after a trial on an indictment such as the present one."
It may also be noted that for the period 1940 to September 1, 1948 (see note 1, supra), the conspiracy charge here was laid under the old Smith Act.
Richmond at the time of his indictment had for many years been the editor-in-chief of the Daily People's World, the official organ of the Party on the West Coast. He had joined the Party in 1931 and received his indoctrination in Communist technique at the offices of the Daily Worker, the official Party paper on the East Coast. In 1937 he was chosen by the Party's Central Committee to be managing editor of the Daily People's World and was transferred to California. From 1946 through 1948 he regularly attended secret meetings of the state and county boards of the Party, admission to which was by identification from a special list of Party members prepared by the Party chairman or its security chief. Party strategy was mapped out at "very secret meetings" attended by Richmond and the core of the Party machinery, including at least seven of the petitioners here. Richmond served on a special committee to help develop "preconvention discussion" with petitioner Yates; he represented the state committee at the 1950 convention; he addressed many Party meetings preaching the "vanguard role" of the Party and the importance of the People's World in the Communist movement; and his articles in the paper urged the "Leninist and Marxist approach."
Connelly, a Party member since at least 1938, was the Los Angeles editor of the People's World. During the mobilization effort early in World War II he devoted his efforts to "building up sentiment against . . . the war effort" among steel, aircraft, and shipyard workers. He attended the same secret meetings attended by Richmond.
There can be no question that the proof sustained the charges against Richmond and Connelly in the conspiracy. Their newspaper was the conduit through which the Party announced its aims, policies, and decisions, sought its funds, and recruited its members. It is the height of naivete to claim that the People's World does not publish appeals to its readers to follow Party doctrine in seeking the overthrow of the Government by force, but it is stark reality to conclude that such a publication provides an incomparable means of promoting the Party's aim of forcible seizure when the time is ripe.
Petitioner Spector has been active in the California Party since the early 1930's. He taught "Marxism-Leninism" in Party schools and was "division organizer" in Los Angeles County. He attended "underground meetings" with petitioners Lambert, Dobbs, Healy, Carlson, and Schneiderman. The witness Rosser testified that these meetings were "so hid that you couldn't get to them unless you were invited and taken there." In 1946 he "conducted classes" for Party members in Hollywood, and in 1947 as a member of a committee of three Party officials examined the witness Russell, a student in one of his classes, on charges of being a Party "police spy."
Petitioner Kusnitz, following an organizational indoctrination period in New York City, became a Party leader in California in 1946, served as "section organizer," and later as "organizational secretary" in Los Angeles. Her position was directly below that of the local chairman in Party hierarchy. She attended many secret meetings and was present at a Party meeting with petitioner Yates when Yates advocated the necessity of "Soviet support" and "Marxist-Leninist training" as a means of bringing about the Soviet "type of government . . . all over the world." She contributed articles to Communist publications and was very active in the "regrouping of . . . clubs into smaller units"; conducting a "six session leadership training seminar"; carrying on campaigns for subscriptions to the People's World; and leading the "Party Building drive" for the recruitment of members.
Petitioner Henry Steinberg, active in the Young Communist League, and associated with the Party since 1936, was the "educational director." He took part in the creation of the program for the Party's training schools in Los Angeles County. His "education department" sponsored several meetings, one honoring the 25th anniversary of the death of Lenin. He worked with petitioner Schneiderman, the Party Chairman in California, attended meetings regularly, was active in circulation drives for the People's World, and was the principal speaker at many meetings.
"We all know that the Communist movement has as its ultimate objective the overthrow of government by force and violence or by any means, legal or illegal, or a combination of both. That testimony was indisputably produced before the special committee of which I was chairman, and came from the lips not of those who gave hearsay testimony, but of the actual official records of the Communist Party of the United States, presented to our committee by the executive secretary of the Communist Party and the leader of the Communist Party in the United States, Earl Browder. . . . Therefore, a Communist is one who intends knowingly or willfully to participate in any actions, legal or illegal, or a combination of both, that will bring about the ultimate overthrow of our Government. He is the one we are aiming at . . . ." (Emphasis added.) 84 Cong. Rec. 10454. See also Hearings before Subcommittee No. 3 of the House Committee on the Judiciary on H. R. 5138, 76th Cong., 1st Sess. 84.