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United States v. Dennis

decided: August 1, 1950.

UNITED STATES
v.
DENNIS ET AL.



Author: Hand

Before L. HAND, SWAN and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The defendants Dennis and others appeal from a judgment of conviction upon an indictment for violation of Section 3 of the "Smith Act,"*fn1 that is, for "wilfully and knowingly" conspiring to organize the Communist Party of the United States as a group to "teach and advocate the overthrow and destruction" of the government "by force and violence," and "knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying" the government by "force and violence." All the defendants were at one time or another officials of the Party during the period laid in the indictment - April 1, 1945, to July 20, 1948. The case was tried at great length. The defendants challenged the array, and the trial of that issue extended from January 20, 1949, to March 1, 1949; the trial of the issues began the following week and went on continuously until September 23, 1949. The jury brought in a verdict against all the defendants on October 14, 1949, and they were sentenced on October 21, 1949. The trial of the challenge to the array took 23 days; the government's case on the issues took 40 days, and the appellants, 75 days.

Logically the first issue, and incidentally the most important, is whether the evidence was sufficient to support the jury's verdict that the defendants were guilty of the crime charged in the indictment. There was abundant evidence, if believed, to show that they were all engaged in an extensive concerted action to teach what indeed they do not disavow - the doctrines of Marxism-Leninism. These doctrines were set forth in many pamphlets put in evidence at the trial, the upshot of which is - indeed an honest jury could scarcely have found otherwise - that capitalism inescapably rests upon, and must perpetuate, the oppression of those who do not own the means of production; that to it in time there must and will succeed a "classless" society, which will finally make unnecessary most of the paraphernalia of government; but that there must be an intermediate and transitional period of the "dictatorship of the proletariat," which can be established only by the violent overthrow of any existing government, if that be capitalistic. No entrenched bourgeoisie, having everything to lose and nothing to gain by the abolition of capitalism, by which alone it can continue to enjoy its privileged position, will ever permit itself to be superseded by the means which it may have itself provided for constitutional change: e.g., by the ballot. No matter how solemnly it may profess its readiness to abide the result, and no matter how honestly and literally the accredited processes of amendment may in fact be followed, it is absurd to expect that a bourgeoisie will yield; and indeed to rely upon such a possibility is to range oneself among the enemies of Marxist-Leninist principles. Therefore the transition period involves the use of "force and violence," temporary it is true, but inescapable; and, although it is impossible to predict when a propitious occasion will arise, one certainly will arise: as, for example, by financial crisis or other internal division. When the time comes the proletariat will find it necessary to establish its "dictatorship" by violence.

The defendants protest against this interpretation of their teaching and advocacy. They say that the use of "force and violence" is no part of their program, except as it may become necessary after the proletariat has succeeded in securing power by constitutional processes. Thereafter, being itself the lawful government, it will of course resist any attempt of the ousted bourgeoisie to regain its position; it will meet force with force as all governments may, and must. If the defendants had in fact so confined their teaching and advocacy, the First Amendment would indubitably protect them, for it protects all utterances, individual or concerted, seeking constitutional changes, however revolutionary, by the processes which the Constitution provides. Any amendment to the Constitution passed in conformity with Article V is as valid as though it had been originally incorporated in it; the only exception being that no state shall be denied "its equal Suffrage in the Senate." It is unnecessary to quote in detail the many passages in the pamphlets and books, published and disseminated by the defendants, which flatly contradict their declarations that they mean to confine the use of "force or violence" to the protection of political power, once lawfully obtained. The prosecution proved this part of its case quite independently of the testimony of its witnesses, though the jury might have relied upon that, had it stood alone. The sufficiency of the evidence therefore comes down to whether it is a crime to form a conspiracy to advocate or teach the duty and necessity of overthrowing the government by violence, and to organize the Communist Party as a group so to teach and to advocate.

This being true, three questions arise: (1) whether the Act is constitutional as the judge construed it, (2) whether his construction was right, and (3) whether the evidence was admissible under the indictment. To the last of these we shall devote no time, for it is patent on the merest inspection that the indictment is sufficient; even had it not been, any variances would have been harmless error. Fed. Rules Crim.Proc. rule 52(a), 18 U.S.C.A. Coming then to the first point, although the interest which the Amendment was designed to protect - especially as regards matters political - does not presuppose that utterances, divergent from current official opinion, are more likely to be true than that opinion, it does presuppose that official opinion may be wrong, and that one way - and perhaps the best way - to correct or supplement it, is complete freedom of criticism and protest. This may convince the officials themselves, and in any event it may rouse up a body of contrary opinion to which they will yield, or which will displace them. Thus, the interest rests upon a skepticism as to all political orthodoxy, upon a belief that there are no impregnable political absolutes, and that a flux of tentative doctrines is preferable to any authoritative creed. It rests upon a premise as yet unproved, and perhaps incompatible with men's impatience of a suspended judgment when the stakes are high. However, it concerns beliefs alone, not actions, except in so far as a change of belief is a condition upon action.

Nobody doubts that, when the leader of a mob already ripe for riot gives the word to start, his utterance is not protected by the Amendment. It is not difficult to deal with such situations; doubt arises only when the utterance is at once an effort to affect the hearers' beliefs and a call upon them to act when they have been convinced. As a new question it might have been held that the Amendment did not protect utterances, when they had this double aspect: i.e., when persuasion and instigation were inseparably confused. In that view the Amendment would give protection to all utterances designed to convince, but its protection would be conditional upon their not being part of, or coupled with, provocation to unlawful conduct, whether that was remote or immediate. True, one does not become an accessory to a crime who "counsels, commands, induces * * * its commission."*fn2 unless the crime is committed; but he will be guilty of conspiracy by the mere agreement; and it will not protect him that the objective of the conspiracy is lawful, and only the means contemplated are illegal.*fn3 Had this view of the Amendment been taken, although the utterances of these defendants so far as they attempted to persuade others of the aims of Communism would have been protected, they would have lost that protection, coupled as they were with the advocacy of the unlawful means. And that is probably in fact true of utterances not political or religious; for it is at least doubtful whether other kinds of utterance, however law ful in so far as they were persuasive only, would retain their privilege if coupled with appeals to unlawful means. One can hardly believe that one would be protected in seeking funds for a school, if he suggested that they should be obtained by fraud. His privilege would be conditional upon separating the means from the end. However, that may be, it is not true of political agitation and the question is what limits, if any, the advocacy of illegal means imposes upon the privilege which the aims or purposes of the utterer would otherwise enjoy.

The Supreme Court has certainly evinced a tenderness towards political utterances since the first World War. In Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470, the accused had been convicted of distributing a broadside which obstructed the draft, and his conviction was affirmed. It is clear that this was upon the theory that his purpose had been to bring about the "substantive evil," with which it was within the power of Congress to deal. Holmes, J., went on to say, however, by way of limitation, that even in such cases the danger that the "evil" might be realized must be "clear and present"; though he must have supposed that the distribution of the broadside created such a danger. In Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173, the majority of the Court on the other hand appear to have found it enough that the purpose of the accused was to bring about the "substantive evil"; at least they did not raise any question as to its gravity or its imminence; but Holmes and Brandeis, JJ., dissented, first, because they did not think that the accused's purpose was to hinder the prosecution of the war, and second, because the danger was trivial and remote.Schaefer v. United States, 251 U.S. 466, 40 S. Ct. 259, 64 L. Ed. 360, concerned a situation substantially the same, and adds nothing, so far as we can see.Next came Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, where a New York statute, under which the accused had been convicted, was so close to parts of the statute at bar that it must have been its model pro tanto. The majority held that it was enough that the pamphlet, broadcast by the accused, "advocates and urges in fervent language mass action which shall * * * overthrow and destroy organized parliamentary government"; and that it used "the language of direct incitement". 268 U.S. at page 665, 45 S. Ct. at page 629, 69 L. Ed. 1138. Once more Holmes and Brandeis, JJ., however, dissented because "there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who share the defendant's views. * * * If the publication * * * had been laid as an attempt to induce an uprising * * * at once and not at some indefinite time in the future, it would have presented a different question," unless perhaps even then "it was not futile and too remote from possible consequences". 268 U.S. at page 673, 45 S. Ct. at page 632, 69 L. Ed. 1138. This case arose under state law, but all the judges agreed that the First Amendment applied to it, though possibly without so strong a grip as though it had been a federal law. It has been often cited in the twenty-five years that have passed, never with disapproval proval and frequently as authoritative. On the other hand it would be uncandid to say that the dissent did not make the immediacy of the "substantive evil" a condition of the unlawfulness of even direct incitement to rebellion; though it is to be noted that the dissenters also dwelt upon the improbability that the paltry efforts of the accused could effect their purposes within any period which need to be reckoned with. Whitney v. People of State of California, 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095, which followed shortly thereafter, presented no different question, and the concurrence of Brandeis, J., was explicit that he would hold a conspiracy protected, though its execution were deferred to the first propitious moment. 274 U.S. at pages 376, 377, 47 S. Ct. 641, 71 L. Ed. 1095. Yet here too the reasoning should be remembered, for it was that delay in execution would give opportunity for the corrective of public discussion. It does not follow that he would have been of the same opinion, if the conspirators had sought to mask their purposes by fair words, as they did in the case at bar.Moreover, it is to be particularly observed that the concurrence said that the Court had not yet fixed the standard by which to determine "when a danger shall be deemed clear; how remote the danger may be and yet be deemed present". 274 U.S. at page 374, 47 S. Ct. at page 648, 71 L. Ed. 1095.

In Stromberg v. People of State of California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484, the majority reversed a conviction because it thought the statute too vague to serve as a guide to conduct; but it explicitly recognized "that the State may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to our institutions. Gitlow v. People of State of New York, supra; Whitney v. People of State of California, supra", 283 U.S. at pages 368, 369, 51 S. Ct. at page 535, 75 L. Ed. 1117, 73 A.L.R. 1484. In Herndon v. State of Georgia, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530, the majority found it possible to avoid the constitutional question, but Brandeis, Stone and Cardozo, JJ., dissented. Cardozo, J., who wrote the dissent, discussed in detail, Gitlow v. People of State of New York, and very carefully avoided any suggestion that it had not been correctly decided. He thought that "the effect of all this" (that is, of the later opinions) "was to leave the question open whether in cases * * * where the unlawful quality of words is to be determined not upon their face but in relation to their consequences, the opinion in Schenck v. United States supplies the operative rule". 295 U.S. at page 451, 55 S. Ct. at page 798, 79 L. Ed. 1530. We read this as meaning that the rule of "clear and present danger" might be properly limited to situations in which the words were not themselves those of direct instigation.We do not see that De Jonge v. State of Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278, adds anything except that here also Gitlow v. People of State of New York and Whitney v. People of State of California were cited with apparent approval. Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1006, reversed a conviction because a state statute was too vague, like that before the court in Stromberg v. People of State of California, supra;*fn4 Gitlow v. People of State of New York being discussed at length without any intimation of dissidence.

All the foregoing cases concerned the validity of statutes which had made it unlawful to stir up opposition to the Government or a state in the discharge of some vital function. There followed several which held that an ordinance or statute might not trench upon freedom of speech in order to promote minor public convenience: e.g., preventing the streets from being littered by broadsides, Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155; requiring a license to solicit contributions for societies, Cantwell v. State of Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352; requiring a union leader to register his name and union affiliation with the Secretary of State, Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 430. The opinions in all these cases did however repeat the rubric of Schenck v. United States, supra,*fn5 though none of them attempted to define how grave, or how imminent the danger must be, or whether the two factors are mutually interdependent. Moreover, the situation in all was wholly different from that in the preceding decisions. It is one thing to say that the public interest in keeping streets clean, or in keeping a register of union leaders, or in requiring solicitors to take out licenses, will not justify interference with freedom of utterance (and the last decision of the Court is to the contrary, Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513, 10 A.L.R.2d 608); but it is quite another matter to say that an organized effort to inculcate the duty of revolution may not be repressed. It does not seem to us therefore that these decisions help towards a solution here.

Three decisions involving punishment for contempt of court stand upon a different footing: Bridges v. State of California, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192, 159 A.L.R. 1346; Pennekamp v. State of Florida, 328 U.S. 331, 66 S. Ct. 1029, 90 L. Ed. 1295; and Craig v. Harney, 331 U.S. 367, 67 S. Ct. 1249, 91 L. Ed. 1546. In each the question was whether the Fourteenth Amendment, incorporating as it does the First, protected against criminal contempt one who published abuse of a judge while a case was pending before him.These opinions also repeated the rubric, but throw no light upon its meaning, and in any case there could be no issue as to the imminency of the danger, for, whatever effect the abuse might have upon the judge's decision, it would be either immediate, or at most delayed no longer than his period of deliberation. Moreover, in Pennekamp v. State of Florida, the majority said that courts must "appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption".328 U.S. at page 336, 66 S. Ct. at page 1032, 90 L. Ed. 1295. One must "weigh the right of free speech * * * against the danger of the coercion and intimidation of courts", 328 U.S. at page 346, 66 S. Ct. at page 1037, 90 L. Ed. 1295. And again, "What is meant by clear and present danger to a fair administration of justice? No definition could give an answer". 328 U.S. at page 348, 66 S. Ct. at page 1038, 90 L. Ed. 1295. Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796, also stands apart; it held that the prosecution had not adequately proved that Schneiderman, though a Communist, was not "attached to the principles of the Constitution," when he was naturalized. The majority thought that being a Communist might involve no more than what the defendants at bar say that it does involve: to foster revolutionary changes, but only by lawful methods. All that can be thought relevant to the case at bar is a passage in the opinion, which may have been meant to imply that only "agitation and exhortation calling for present violent action which creates a clear and present danger of public disorder or other substantive evil", 320 U.S. at page 157, 63 S. Ct. at page 1352, 87 L. Ed. 1796, will show that one is not attached to the "principles of the Constitution." Of the eight justices who took part in the decision, three dissented, and of the five who concurred two wrote separate opinions. It is true that both these said that they joined in the opinion in chief; but we should hesitate to say that by this they meant to commit themselves to the proposition that a man may be attached to the principles of a constitution, whose violent overthrow he will continue to advocate and teach, because he knows that the execution of his purpose must be deferred for a time. We should feel bound to await a more definite declaration before accepting a doctrine, which, with deference, seems to us so open to doubt.

In Hartzel v. United States, 322 U.S. 680, 64 S. Ct. 1233, 88 L. Ed. 1534, a prosecution under the Espionage Act,*fn6 the question was whether the accused had "wilfully" tried to cause insubordination, and the majority held that "wilfully" confined the forbidden utterance to what was specifically intended to bring about the evil, and then only in case there was a "clear and present danger" of its success. 322 U.S. at pages 686, 687, 64 S. Ct. at page 1236, 88 L. Ed. 1534.Four justices thought that no specific intent had been proved and did not find it necessary to pass upon whether there was the prescribed danger; four thought the specific intent proved and said nothing as to the proximity of the danger; Roberts, J., merely said that the evidence was insufficient.Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031, and Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 895, 93 L. Ed. 1131, concerned statutes or ordinances which made unlawful speeches that were likely to create disorders or other "breaches of the peace." Concededly the accused had not intended the "substantive evil" to occur, though he was probably indifferent about it, and may have thought disorder likely to result. In the first case the conviction was affirmed; in the second it was reversed. Whatever danger there was, was sure to be immediate, and the cases are not helpful here.

Nor is the law as to enjoining peaceful picketing altogether plain. In Thornhill v. State of Alabama, 310 U.S. 88, 66 S. Ct. 736, 84 L. Ed. 1093, the Court declared unconstitutional a state statute which forbad such picketing in an ordinary labor dispute. It held that picketing, when unaccompanied by threats or violence, was no more than an appeal to others to side with the union. However, in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834, it upheld a state statute which authorized courts to enjoin such picketing in what seems to us to have amounted to a secondary boycott. An ice peddlers' union wished to compel some unwilling peddlers to join, and in order to do so picketed an ice plant which refused to stop supplying ice to the recalcitrants. That conduct the state statute forbad, and the Court held that it was constitutional, as part of the remedy, to enjoin picketing, although that consisted only in trying to persuade others to join in the unlawful effort. The "evil" - injury to the defendant's business - was "present" enough, and apparently it was important enough to justify even a prevention of the utterance in advance. In International Brotherhood of Teamsters, etc., Union Local 309, v. Hanke, 339 U.S. 470, 70 S. Ct. 773, a partnership of four was conducting a business which included the sale of second-hand motor cars. They had no employees, but their predecessor had conducted a union shop, and the senior partner had joined the union when he bought the business. Later the partners resigned from the union because they were unwilling to abide by the union rules as to the hours of business. Although there was no statute which made the union's conduct unlawful, a majority of the Court held that the question was of balancing conflicting interests, and that the state was free to decide which interest should prevail, whether by its legislature or by its courts.

The last decision - in some ways the most important of all - is American Communications Association, C.I.O. v. Douds, 339 U.S. 382, 70 S. Ct. 674, in which a majority of the Court held that § 9(h) of the Labor-Management Act*fn7 was constitutional in requiring the officers of a union to take an oath that they were not Communists, as a condition to according the union the benefits of the Act. All the opinions seem to us to have accepted it as a condition upon any limitation upon freedom of utterance that there must be some "clear and present danger" that the utterance will succeed in creating a "substantive evil" within the control of Congress. The opinion in chief, however, cautioned that this was not to be applied "as a mechanical test * * * without regard to the context of its application." "It is the considerations that gave birth to the phrase * * * not the phrase itself, that are vital". 339 U.S. at page 394, 70 S. Ct. at page 681. Again, "even harmful conduct cannot justify restrictions upon speech unless substantial interests of society are at stake. But * * * it was never the intention of this Court to lay down an absolute test measured in terms of danger to the Nation". 339 U.S. at page 397, 70 S. Ct. at page 683. "When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented". 339 U.S. at page 399, 70 S. Ct. at page 684. "We must therefore, undertake the 'delicate and difficult task * * * to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.' Schneider v. State, 1939, 308 U.S. 147, 161, 60 S. Ct. 146, 84 L. Ed. 155". 339 U.S. at page 400, 70 S. Ct. at page 684. The significance of the decision for the purposes of the case at bar does not, however, lie in the language used, so much as in the decision itself; not indeed because the conflict of interest which the Court there resolved, was the same as that before us, but because the test applied was the same as in the case of a criminal prosecution for utterances threatening the stability of the government: i.e., "clear and present danger"; and because this was used to weigh the danger to commerce considering its gravity and proximity, against the repression of political activity involved - indeed a minority included even repression of political belief. The danger in that case included "political" strikes, and the danger to commerce from such strikes is closer than the danger to the existence of the government is to the teachings of the defendants; but the second danger is vastly graver if it be realized. We do not pretend that the decision is authoritative here; indeed the Court carefully declared that it was limited to the situation then at bar. What we do say is that no longer can there be any doubt, if indeed there was before, that the phrase, "clear and present danger," is not a slogan or a shibboleth to be applied as though it carried its own meaning; but that it involves in every case a comparison between interests which are to be appraised qualitatively.

From this wearisome analysis of the decisions of the Supreme Court it has appeared, as we indicated at the outset, that to deprive an utterance of the protection of the Amendment it is not always enough that the purpose of the utterer may include stirring up his hearers to illegal conduct - at least, when the utterance is political. The same utterance may be unprotected, if it be a bare appeal to action, which the Amendment will cover, if it be accompanied by, or incorporated into, utterances addressed to the understanding and seeking to persuade. The phrase, "clear and present danger," has come to be used as a shorthand statement of those among such mixed or compounded utterances which the Amendment does not protect.Yet it is not a vade mecum; indeed, from its very words it could not be. It is a way to describe a penumbra of occasions, even the outskirts of which are indefinable, but within which, as is so often the case, the courts must find their way as they can. In each case they must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. We have purposely substituted "improbability" for "remoteness," because that must be the right interpretation. Given the same probability, it would be wholly irrational to condone future evils which we should prevent if they were immediate; that could be reconciled only by an indifference to those who come after us.It is only because a substantial intervening period between the utterance and its realization may check its effect and change its importance, that its immediacy is important; and that, as we have said, was the rationale of the concurrence in Whitney v. People of State of California, supra.*fn8 We can never forecast with certainty; all prophecy is a guess, but the reliability of a guess decreases with the length of the future which it seeks to penetrate. In application of such a standard courts may strike a wrong balance; they may tolerate "incitements" which they should forbid; they may repress utterances they should allow; but that is a responsibility that they cannot avoid. Abdication is as much a failure of duty, as indifference is a failure to protect primal rights.

In the case at bar the defence seems to us to kick the beam. One may reasonably think it wiser in the long run to let an unhappy, bitter outcast vent his venom before any crowds he can muster and in any terms that he wishes, be they as ferocious as he will; one may trust that his patent impotence will be a foil to anything he may propose. Indeed, it is a measure of the confidence of a society in its own stability that it suffers such fustian to go unchecked. Here we are faced with something very different. The American Communist Party, of which the defendants are the controlling spirits, is a highly articulated, well contrived, far spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are infused with a passionate Utopian faith that is to redeem mankind. It has its Founder, its apostles, its sacred texts - perhaps even its martyrs. It seeks converts far and wide by an extensive system of schooling, demanding of all an inflexible doctrinal orthodoxy. The violent capture of all existing governments is one article of the creed of that faith, which abjures the possibility of success by lawful means. That article, which is a common-place among initiates, is a part of the homiletics for novitiates, although, so far as conveniently it can be, it is covered by an innocent terminology, designed to prevent its disclosure. Our democracy, like any other, must meet that faith and that creed on the merits, or it will perish; and we must not flinch at the challenge. Nevertheless, we may insist that the rules of the game be observed, and the rules confine the conflict to weapons drawn from the universe of discourse. The advocacy of violence may, or may not, fail; but in neither case can there be any "right" to use it. Revolutions are often "right," but a "right of revolution" is a contradiction in terms, for a society which acknowledged it, could not stop at tolerating conspiracies to overthrow it, but must include their execution. The question before us, and the only one, is how long a government, having discovered such a conspiracy, must wait. When does the conspiracy become a "present danger"?The jury has found that the conspirators will strike as soon as success seems possible, and obviously, no one in his senses would strike sooner. Meanwhile they claim the constitutional privilege of going on indoctrinating their pupils, preparing increasing numbers to pledge themselves to the crusade, and awaiting the moment when we may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that the chance seems worth trying. That position presupposes that the Amendment assures them freedom for all preparatory steps and in the end the choice of initiative, dependent upon that moment when they believe us, who must await the blow, to be worst prepared to receive it.

We need not say that even so thoroughly planned and so extensive a confederation would be a "present danger" at all times and in all circumstances; the question is how imminent: that is, how probable of execution - it was in the summer of 1948, when the indictment was found. We must not close our eyes to our position in the world at that time. By far the most powerful of all the European nations had been a convert to Communism for over thirty years; its leaders were the most devoted and potent proponents of the faith; no such movement in Europe of East to West had arisen since Islam. Moreover in most of West Europe there were important political Communist factions, always agitating to increase their power; and the defendants were acting in close concert with the movement. The status quo, hastily contrived in 1945, was showing strains and tensions, not originally expected. Save for the unexpected success of the airlift, Britain, France and ourselves would have been forced out of Berlin, contrary to our understanding of the convention by which we were there. We had become the object of invective upon invective; we were continuously charged with aggressive designs against other nations; our efforts to re-establish their economic stability were repeatedly set down as a scheme to enslave them; we had been singled out as the chief enemy of the faith; we were the eventually doomed, but the still formidable, protagonist of that decadent system which it was to supplant. Any border fray, any diplomatic incident, any difference in construction of the modus vivendi - such as the Berlin blockade we have just mentioned - might prove a spark in the tinder-box, and lead to war. We do not understand how one could ask for a more probable danger, unless we must wait till the actual eve of hostilities. The only justification which can be suggested is that in spite of their efforts to mask their purposes, so far as they can do so consistently with the spread of the gospel, discussion and publicity may so weaken their power that it will have ceased to be dangerous when the moment may come. That may be a proper enough antidote in ordinary times and for less redoubtable combinations; but certainly it does not apply to this one. Corruptio optimi pessima. True, we must not forget our own faith; we must be sensitive to the dangers that lurk in any choice; but choose we must, and we shall be silly dupes if we forget that again and again in the past thirty years, just such preparations in other countries have aided to supplant existing governments, when the time was ripe. Nothing short of a revived doctrine of laissez faire, which would have amazed even the Manchester School at its apogee, can fail to realize that such a conspiracy creates a danger of the utmost gravity and of enough probability to justify its suppression. We hold that it is a danger "clear and present."

However, although for the foregoing reasons we agree with the Eighth Circuit*fn9 that the Smith Act is constitutional, so limited, it does not follow that as matter of interpretation it may be so limited, or that the judge was justified in charging the jury that they need only find the defendants meant to use violence "as speedily as circumstances would permit it" (the overthrow or destruction of the government) "to be achieved." The words of the Act are unconditional and forbid advocacy or teaching of such a violent overthrow at any time and by anyone, weak or strong; literally, they make criminal the fulminations of a half crazy zealot on a soap box, calling for an immediate march upon Washington. Therefore, the defendants argue that, if the Act is to be limited as it must be to be valid, Congress must limit it; and further, that, if it were so limited, it would become too vague to serve as a definition of crime. We think not. Section 40 of the original act*fn10 provided by a not uncommon clause, not only that "if any provision" were "held invalid, the remainder of the Act," should not be affected; but also that, if "the application thereof to any person or circumstance is held invalid * * * the application * * * to other persons or circumstances" should not be affected. Even when there is no "separability" clause of any kind, the doctrine of United States v. Reese, 92 U.S. 214, 23 L. Ed. 563, does not always apply; the Supreme Court has often limited general words in a statute so as to make it constitutional,*fn11 although in such cases a court must hazard the inference that Congress would have enacted the statute in the limited form, if it had known that in its broad scope it would be unconstitutional. We have no such problem here, because there can be no doubt as to the intent; Congress has explicitly declared that it wished the words to govern all cases which they constitutionally could. Nor do we think that, so limited, the Act becomes too vague to stand up, which is the only challenge on the score of vagueness that deserves discussion. In the first place, it is to be observed that it would have been impracticable to provide against the evil and yet to define the forbidden conduct more definitely. True, one might have added in § 2(a)(1) [1948 Revised Criminal Code 18 U.S.C.A. § 2385] after the word "teach" the clause: "when that constitutes a clear and present danger"; and in § 2(a)(3) the same clause after the words "help to organize." But that would not have helped to define the forbidden conduct; for, not only are those words imprecise in themselves, and were never intended to be otherwise; but, as we have seen, they presuppose balancing the repression necessary to avoid the evil, against the evil itself, discounted by the improbability of its occurrence. That is a test in whose application the utmost differences of opinion have constantly arisen, even in the Supreme Court. Obviously it would be impossible to draft a statute which should attempt to prescribe a rule for each occasion; and it follows, as we have said, either that the Act is definite enough as it stands, or that it is practically impossible to deal with such conduct in general terms. Such a consideration is relevant in judging the constitutionality of any statute. United States v. Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 91 L. Ed. 1877.

There is an added reason leading to the same result. Both § 2(a)(1) and § 2(a)(3) make advocacy and teaching of revolution criminal only when it is with a specific intent - the intent to do so by "force or violence." Obviously one cannot teach or advocate the use of violence without specifically intending to bring about its use; a fortiori must that be true, if one organizes a group so to teach. All discussion as to the use of the word "wilfully" in the alternative in § 2(a)(1) is therefore irrelevant; the sections carry their own specific intent, and that intent violates the accepted mores of our society, which discountenance resort to violence as a means of political change. When a statute is directed against conduct which offends accepted moral standards, and particularly when the moral offense is heinous, ambiguities do not count against its validity as much as they do when the proscribed conduct has no ethical significance, as, for instance, when it is only an economic regulation, United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A.L.R. 1045. Thus, in Gorin v. United States, 312 U.S. 19, 61 S. Ct. 429, 85 L. Ed. 488, a conviction was affirmed under a statute which punished making copies of "anything connected with the national defense," or "relating to" it, because the statute was limited to cases where the forbidden act was done "for the purpose of obtaining information * * * with intent or reason to believe that the information to be obtained is to be used to the injury of the United States." Those words, the court said, required "those prosecuted to have acted in bad faith," which was "sufficiently definite to apprise the public of prohibited activities" 312 U.S. at page 28, 61 S. Ct. at page 434, 85 L. Ed. 488. Again, in United States v. Ragen, 314 U.S. 513, 62 S. Ct. 374, 86 L. Ed. 383, although the crime depended upon whether the accused paid more than "reasonable" commissions, the statute was held valid because it was limited to deductions, made "willfully." "That such acts of bad faith are not beyond the ready comprehension either of persons affected by the act or of juries called upon to determine violations need not be elaborated." "A mind intent upon willful evasion is inconsistent with surprised innocence". 314 U.S. at page 524, 62 S. Ct. at page 378, 86 L. Ed. 383. This is a rational exception to the doctrine that the words of a statute must not be too vague to guide those who wish to conform to it; it means that, though the forbidden conduct be itself defined in ambiguous terms, the ambiguity will be cleared up, if the statute adds as a condition that the conduct is criminal only in case ...


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