Scales v. United States

No. 1

Argued April 29, 1959

Reargued October 10, 1960

Decided June 5, 1961

367 U.S. 203

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus



Petitioner was convicted of violating the so-called membership clause of

the Smith Act, which makes a felony the acquisition or holding of

membership in any organization which advocates the overthrow of the

Government of the United States by force or violence, knowing the

purposes thereof.  The indictment charged that from January, 1946, to

the date of its filing in 1954, the Communist Party of the United States

was such an organization, and that, throughout that period, petitioner

was a member thereof with knowledge of the Party's illegal purpose and a

specific intent to accomplish overthrow of the Government "as speedily

as circumstances would permit."  The jury was instructed that it could

not convict unless it found that, within the 3-year limitation period,

(1) the Party advocated the violent overthrow of the Government, in the

sense of present "advocacy of action" to accomplish that end as soon as

circumstances were propitious, and (2) petitioner was an "active" member

of the Party, and not merely "a nominal, passive, inactive or purely

technical" member, with knowledge of the Party's illegal advocacy and a

specific intent to bring about violent overthrow "as speedily as

circumstances would permit."



Held:  A judgment of the Court of Appeals sustaining the conviction is

affirmed.



1. Section 4(f) of the Internal Security Act of 1950, which provides, in

part, that neither "the holding of office nor membership in any

Communist organization by any person shall constitute per se a

violation" of that or any other criminal statute, did not repeal pro

tanto the membership clause of the Smith Act by excluding from the reach

of that clause membership in any Communist organization.



2. Petitioner's challenge to the constitutionality of the membership

clause of the Smith Act must be overruled.



(a) The statute was correctly interpreted by the two lower courts.



(b) As construed and applied, the membership clause of the Smith Act

does not violate the Fifth Amendment by impermissibly [367 U.S. 204]

imputing guilt to an individual merely on the basis of his associations

and sympathies, rather than because of some concrete personal

involvement in criminal conduct.



(c) As construed and applied, the membership clause of the Smith Act

does not infringe freedom of political expression and association in

violation of the First Amendment.



3. The evidence was sufficient to sustain the conviction.



4. None of the trial errors alleged by petitioner raises points meriting

reversal.



(a) The admission of evidence about the Party's program for inciting the

Negro population in the South to revolt and the admission of a pamphlet

called "I Saw the Truth in Korea," which contained a very gruesome

description of alleged American atrocities in Korea, were not

prejudicial errors warranting reversal of the conviction.



(b) The so-called Jencks Act, 18 U.S.C.  3500, is not unconstitutional,

and its application to petitioner in this case did not invalidate his

conviction.



(c) Petitioner has made no showing to sustain his contention that

congressional findings as to the character of the Communist Party

contained in the Communist Control Act of 1954 and the Internal Security

Act of 1950 deprived him of a fair trial on that issue.



(d) By his failure to comply with Rule 12 of the Federal Rules of

Criminal Procedure, petitioner waived any right he might have had to

question the method of choosing grand jurors, and no impropriety in the

method of choosing grand jurors has been shown.



260 F.2d 21, affirmed. [367 U.S. 205] HARLAN, J., lead opinion



MR. JUSTICE HARLAN delivered the opinion of the Court.



Our writ issued in this case (358 U.S. 917) to review a judgment of the

Court of Appeals (260 F.2d 21) affirming petitioner's conviction under

the so-called membership clause of the Smith Act. 18 U.S.C.  2385.  The

Act, among other things, makes a felony the acquisition or holding of

knowing membership in any organization which advocates the overthrow of

the Government of the United States by force or violence.  The

indictment charged that from January, 1946, to the date of its filing

(November 18, 1954), the Communist Party of the United States was such

an organization, and that petitioner [367 U.S. 206] throughout that

period was a member thereof, with knowledge of the Party's illegal

purpose and a specific intent to accomplish overthrow "as speedily as

circumstances would permit."



The validity of this conviction is challenged on statutory,

constitutional, and evidentiary grounds, and further on the basis of

certain alleged trial and procedural errors.  We decide the issues

raised upon the fullest consideration, the case having had an unusually

long history in this Court.  For reasons given in this opinion, we

affirm the Court of Appeals. I STATUTORY CHALLENGE



Petitioner contends that the indictment fails to state an offense

against the United States.  The claim is that  4(f) of the Internal

Security Act of 1950, 64 Stat. 987, [367 U.S. 207] 50 U.S.C.  781 et

seq., constitutes a pro tanto repeal of the membership clause of the

Smith Act by excluding from the reach of that clause membership in any

Communist organization.  Section 4(f) provides: Neither the holding of

office nor membership in any Communist organization by any person shall

constitute per se a violation of subsection (a) or subsection (c) of

this section or of any other criminal statute.  The fact of the

registration of any person under section 7 or section 8 of this title as

an officer or member of any Communist organization shall not be received

in evidence against such person in any prosecution for any alleged

violation of subsection (a) or subsection (c) of this section or for any

alleged violation of any other criminal statute. To prevail in his

contention, petitioner must, of course, bring himself within the first

sentence of this provision, since the second sentence manifestly refers

only to exclusion from evidence of the fact of registration, thus

assuming that a prosecution may take place.



We turn first to the provision itself, and find that, as to petitioner's

construction of it, the language is, at best, ambiguous, if not

suggestive of a contrary conclusion.  Section 4(f) provides that

membership or office-holding in a Communist organization shall not

constitute "per se a violation of subsection (a) or subsection (c) of

this section or of any other criminal statute."  Petitioner would most

plainly be correct if the statute under which he was indicted purported

to proscribe membership in Communist organizations, as such, and to

punish membership per se in an organization engaging in proscribed

advocacy.  But the membership clause of the Smith Act, on its face, much

less as we construe it in this case, does not do this, for it neither

proscribes membership in Communist organizations, as such, but only in

organizations engaging in advocacy of violent overthrow, nor punishes

membership [367 U.S. 208] in that kind of organization except as to one

"knowing the purposes thereof," and, as we have interpreted the clause,

with a specific intent to further those purposes (infra pp. .  We have

also held that the proscribed membership must be active, and not

nominal, passive, or theoretical (infra pp. .  Thus, the words of the

first sentence of  4(f) by no means unequivocally demand the result for

which petitioner argues.  When we turn from those words to their

context, both in the section as a whole and in the scheme of the Act of

which they are a part, whatever ambiguity there may be must be resolved,

in our view, against the petitioner's contention.



In the context of  4 as a whole, the first sentence of subsection (f)

does not appear to be a provision repealing in whole or in part any

other provision of the Internal Security Act.  Subsection (a) of  4

makes it a crime for any person knowingly to combine, conspire, or agree

with any other person to perform any act which would substantially

contribute to the establishment within the United States of a

totalitarian dictatorship . . . the direction and control of which is to

be vested in, or exercised by or under the domination or control of, any

foreign government, foreign organization or foreign individual. . . .

Subsection (c) makes it a crime for any officer or member of a

"Communist organization" to obtain classified information.  We should

hesitate long before holding that subsection (f) operates to repeal pro

tanto either one of these provisions which are found in the same section

of which subsection (f) is a part, and indeed the petitioner does not

argue for any such quixotic result.  The natural tendency of the first

sentence of subsection (f) as to the criminal provisions specifically

mentioned is to provide clarification of the meaning of those

provisions, that is, that an offense is not made out on proof of mere

membership [367 U.S. 209] in a Communist organization.  As to these

particularly mentioned criminal provisions, immunity, such as there is,

is specifically granted in the second sentence only, where it is said

that the fact of registration shall not be admitted in evidence.  Yet

petitioner argues that, when we come to the last phrase of the first

sentence, the tag "or . . . any other criminal statute," the operative

part of the sentence, "membership . . . shall [not] constitute per se a

violation," has an altogether different purport and effect.  What

operated as a clarification and guide to construction to the

specifically identified provisions is, petitioner argues, a partial

repealer as to the statutes referred to in the omnibus clause at the end

of the sentence.



It seems apparent from the foregoing that the language of  4(f), in its

natural import and context, should not be taken to immunize members of

Communist organizations from the membership clause of the Smith Act, but

rather as a mandate to the courts charged with the construction of

subsections (a) and (c) "or . . . any other criminal statute" that

neither those two named criminal provisions nor any other shall be

construed so as to make "membership" in a Communist organization "per se

a violation."  Indeed, as we read the first sentence of  4(f), even if

the membership clause of the Smith Act could be taken as punishing naked

Communist Party membership, it would then be our duty under  4(f) to

construe it in accordance with that mandate, certainly not to strike it

down.  Although we think that the membership clause, on its face, goes

beyond making mere Party membership a violation, in that it requires a

showing both of illegal Party purposes and of a member's knowledge of

such purposes, we regard the first sentence of  4(f) as a clear warrant

for construing the clause as requiring not only knowing membership, but

active and purposive membership, purposive that is as to the

organization's criminal ends.  (Infra, )  By its terms, then, subsection

(f) does not [367 U.S. 210] effect a pro tanto repeal of the membership

clause; at most, it modifies it.



Petitioner argues that, if the  4(f) provision does not bar this

prosecution under the membership clause, then the phrase "or of any

other criminal statute" becomes meaningless, for there is no other

federal criminal statute that makes this sort of membership a crime. 

But the argument assumes the answer.  The first sentence was intended to

clarify, not repeal,  4(a) of the Internal Security Act.  By a parity of

reasoning, its effect on "any other criminal statute" is also

clarification, not repeal.



Petitioner's contentions do not stop, however, with the words of  4(f)

itself.  The supposed partial repeal of the membership clause by that

provision, it is claimed, is a consequence of the latter's purpose in

the whole scheme of the Internal Security Act of 1950, as illuminated by

its legislative history.  The argument runs as follows:  the core of the

Internal Security Act is its registration provisions ( 7 and 8),

requiring disclosure of membership in the Communist Party following a

valid final determination of the Subversive Activities Control Board as

to the status of the Party.  See No. 12, ante,   The registration

requirement would be rendered nugatory by a plea of self-incrimination,

and could only be saved by a valid grant of immunity from prosecution by

reason of any such disclosure.  However, the immunity provided by the

second sentence of  4(f) is insufficient, in that it forbids only the

use of the "fact of . . . registration" as evidence in any future

prosecution, and not also its employment as a "lead" to other evidence. 

See Counselman v. Hitchcock, 142 U.S. 547; Blau v. United States, 340

U.S. 332.  Therefore to effectuate the congressional purpose, it becomes

necessary to consider the first sentence of  4(f) a pro tanto repealer

of the membership clause of the Smith Act, thereby assuring effective

immunity from the criminal consequences of registration in this

instance. [367 U.S. 211]



Although this Court will often strain to construe legislation so as to

save it against constitutional attack, it must not and will not carry

this to the point of perverting the purpose of a statute.  Certainly the

section before us cannot be construed as petitioner argues.  The fact of

registration may provide a significant investigatory lead not only in

prosecutions under the membership clause of the Smith Act, but equally

probably to prosecutions under  4(a) of the Internal Security Act, let

alone  4(c).  Thus, if we accepted petitioner's argument that  4(f) must

be read as a partial repealer of the membership clause, we would be led

to the extraordinary conclusion that Congress also intended to immunize

under  4(f) what it prohibited in these other subsections which it

passed at the same time.  Furthermore, the thrust of petitioner's

argument cannot be limited to the membership clause, for it is equally

applicable to any prosecution under any of a host of criminal provisions

where Communist Party membership might provide an investigatory lead as

to the elements of the crime.  We cannot attribute any such sweeping

purpose to Congress on the basis of the attenuated inference offered by

petitioner.



Presented as we are with every indication in the statute itself that

Congress had no purpose to bar a prosecution such as this, we turn to

the legislative history of the Internal Security Act of 1950 to see if a

different conclusion is indicated.



Section 4(f) is the product of the fusion of provisions contained in

measures conceived by the House and the Senate to deal with the problem

which is the subject of [367 U.S. 212] the present Internal Security

Act.  Primarily, however,  4 is the result of the Senate's efforts.  In

1949, Senator Mundt reintroduced in the Senate a bill, the Mundt-Nixon

bill, which had died in committee the year before.  S. 2311, 81st Cong.,

1st Sess. The bill, which was referred to the Committee on the

Judiciary, contained registration provisions similar to those in the

present statute, and a  4(a), a criminal provision identical to that of

the present  4(a).  In response to an enquiry, the Committee received a

letter from an eminent lawyer, the late John W. Davis of New York, to

the effect that, although the primary purpose of the bill appears to be

"ventilation, rather than prohibition," there was a question whether

mere membership in a Communist political organization, which is . . .

required to register [might] constitute an act such as section 4(a)

proscribes?  If so, the letter continued, is there not inherent

contradiction between these sections, and might not a person called on

to register as a member claim that he would involuntarily incriminate

himself by so doing? (Emphasis supplied.)  S.Rep. No. 1358, 81st Cong.,

1st Sess., pp. 43-44.  Thus, the Davis letter seemed to address itself

only to self-incrimination under the proscriptions of  4(a), and only to

the extent that the membership disclosed by registration would, without

more, constitute a violation of  4(a).



In response to this narrow objection, the Committee drafted the

predecessor of the present  4(f).  That section, also numbered  4(f),

provided that: Neither the holding of office nor membership in any

Communist organization by any person shall constitute a violation of

subsection (a) . . . of this section.  The fact of the registration of

any person . . . shall not be received in evidence against such person

in any prosecution for any alleged violation of subsection (a). . . . S.

2311, as amended.  [367 U.S. 213] The Committee, in reporting the bill

out to the Senate, made it abundantly clear that whatever objections

might be made could, in its view, be overcome by the clarification of 

4(a) contained in  4(f), to-wit:  that mere membership in an

organization required to register is not an overt act such as to bring a

person within the prohibitions of section 4.  This amendment was

inserted to make clear the intent of Congress that registration . . .

was not evidence of a violation of section 4 of the bill. (Emphasis

supplied.)  S.Rep. No. 1358, supra, p. 2.  To the drafters of the

original version of the section, then, the perforce limited immunity of

the second sentence of  4(f), together with the clarification of the

meaning of  4(a) in the first sentence, was adequate to deal with the

self-incrimination problem under  4(a), raised by the Davis letter. 

There is no mention of the Smith Act or any other criminal statute as

yet, but the problem of the necessary scope of immunity is no different

in relation to  4(a) than it would be to such other statutes.



The subsequent history of the section in the Senate reinforces the

conclusion that there was no intent to grant a broad immunity such as

would meet the reasoning of Counselman v. Hitchcock.  The Mundt-Nixon

bill was incorporated in the body of an omnibus measure, the McCarran

bill. S. 4037, 81st Cong., 2d Sess.  When this bill was reported out to

the Senate, no further mention was made in the majority report of the

Judiciary [367 U.S. 214] Committee of the sections under consideration. 

However, Senator Kilgore's minority report squarely presented two

questions as to the insufficiency of the immunity provisions of  4(f): 

(1) that the immunity was inadequate to meet the Counselman rule, and

(2) that, in any case, there was no immunity of any sort granted in

respect of the Smith Act.  S.Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2,

pp. 12-13.  These grounds were urged against the bill also in debate by

its opponents.  Senator Humphrey read into the Record a "brief" prepared

by the Justice Department which, in effect, restated the objections of

the minority report.  96 Cong.Rec. 14475, at 14479.  Senator Lehman

stated the same objections, and also suggested that the membership

clause of the Smith Act as well as  4(a) made Communist membership per

se a crime.  This latter contention was vigorously denied by the

proponents of the measure.  Thus, the Senate passed [367 U.S. 215] its

predecessor version of  4(f), even though it had had clearly presented

to it constitutional objections to that provision which are the same as

the objections petitioner now makes to a natural and literal reading of

the present statute.  There was no immunity of any kind against Smith

Act prosecutions, and only limited immunity against prosecutions under

the comparable provisions of  4(a).



The history of the original House measure is likewise relevant to the

issue under consideration.  That measure, [367 U.S. 216] the Wood bill,

which also provided for registration, contained no provision similar to 

4(a), but did have a provision similar to the present  4(c), forbidding

members of Communist organizations from obtaining classified

information.  H.R. 9490, 81st Cong., 2d Sess.  The bill included an

immunity provision in the same subsection as the predecessor to present 

4(c), which declared that: . . . the fact of the registration of any

person . . . shall not be received in evidence against such person in

any prosecution for any alleged violation . . . of this section. Once

again, the Wood bill demonstrates the same narrow view of the

self-incrimination problem as was evidenced by the Senate bill.  In

debate, Congressmen Celler and Marcantonio, opposing the bill, pointed

to the two-fold inadequacy of the immunity provision:  its failure to

meet Counselman and its not reaching other criminal statutes.  96

Cong.Rec. 13739-13740.  The House responded to these objections by

adding the words "or for any alleged violation of any other . . .

criminal statute" at the end of the above-quoted provision.  96

Cong.Rec. 13761.  It is, therefore, even clearer than in the case of the

Senate's action that there was no attempt to grant complete immunity or

to repeal any other statute at least as to prosecution of Communist

Party members, since the House's immunity provision in terms only dealt

with the admission into evidence of the fact of registration, having no

provision comparable to the first sentence of present  4(f).  That there

was no such provision may perhaps be explained by the fact that there

was no equivalent to  4(a) in need of clarification.



In conference, the substance of the Senate bill was accepted by the

conferees, including the criminal provision of the present  4(a).  The

Senate version of  4(f) was amended to its present form by the addition

of the [367 U.S. 217] House "or any other criminal statute" language to

both the first and second sentences of the subsection, and by the

addition of "per se" to the first sentence.  Thus, we are asked by

petitioner to hold that, although neither House in its pre-conference

bills evidenced any purpose to repeal the Smith Act insofar as Communist

Party membership was concerned, let alone other possibly applicable

statutes under which registration as a Party member might produce an

investigatory lead (see note 3, supra), the amalgamation of these two

bills was intended, though without any notification by the conferees to

either House in their conference reports, to have this result.  Nor does

the addition of the words "per se" advance petitioner's argument.  On

its face, the addition would seem simply to make more explicit the

clarifying purpose of the sentence.  In its context of worries that 

4(a) or the Smith Act makes Communist membership per se criminal, and of

statements by the proponents of the bills that this was an unfounded

fear as to both provisions, the purely clarifying purpose of per se is

apparent.  Furthermore, we are asked to attribute this purpose to the

conferees, although neither they nor the proponents of the measure as it

finally emerged from conference said a word about such an important

departure from the original purposes of the two Houses. [367 U.S. 218]



Finally, it is worth noting that, after the conference measure returned

to the floor of the Senate, it was attacked by Senator Kefauver on

precisely the same grounds as had been urged against it in both Houses

prior to conference:  that the immunity conferred by the present  4(f)

was too narrowly drawn to save the registration provisions against an

attack under Counselman.  96 Cong.Rec. 15198-15199.  This same attack

was renewed after the President's veto, which was overridden by

Congress.  96 Cong.Rec. 15553-15554. [367 U.S. 219]



The legislative history of  4(f), therefore, far from weakening the

conclusion flowing from analysis of the terms of the statute itself,

fortifies that analysis at every point.  To conclude that Congress'

desire to protect the registration provisions of the Internal Security

Act against pleas of self-incrimination should prevail over its

advertent failure to assure that result at the expense of wiping out the

membership clause of the Smith Act, as applied to Communists, would

require a disregard by this Court of the evident congressional purpose. 

Whatever may be the consequences of that failure upon the Internal

Security Act, we are concerned here solely with the question whether

Congress ,by  4(f), intended a partial repeal of the membership clause

of the Smith Act.  We conclude that it did not, and hold that this

prosecution is not barred by  4(f) of the Internal Security Act of 1950.

II CONSTITUTIONAL CHALLENGE TO THE MEMBERSHIP CLAUSE ON ITS FACE.



Petitioner's constitutional attack goes both to the statute on its face

and as applied.  At this point, we deal with the first aspect of the

challenge and with one part [367 U.S. 220] of its second aspect.  The

balance of the latter, which essentially concerns the sufficiency of the

evidence, is discussed in the next section of this opinion.



It will bring the constitutional issues into clearer focus to notice

first the premises on which the case was submitted to the jury.  The

jury was instructed that, in order to convict, it must find that, within

the three-year limitations period, (1) the Communist Party advocated the

violent overthrow of the Government, in the sense of present "advocacy

of action" to accomplish that end as soon as circumstances were

propitious, and (2) petitioner was an "active" member of the Party, and

not merely "a nominal, passive, inactive or purely technical" member,

with knowledge of the Party's illegal advocacy and a specific intent to

bring about violent overthrow "as speedily as circumstances would

permit."



The constitutional attack upon the membership clause, as thus construed,

is that the statute offends (1) the Fifth Amendment, in that it

impermissibly imputes guilt to an individual merely on the basis of his

associations and sympathies, rather than because of some concrete

personal involvement in criminal conduct, and (2) the First

Amendment,{10} in that it infringes on free political expression and

association.  Subsidiarily, it is argued that the statute cannot be

interpreted as including a requirement of a specific intent to

accomplish violent overthrow, or as requiring that membership in a

proscribed organization must be "active" membership, in the absence of

both or either of which it is said the statute becomes a fortiori

unconstitutional.{11}  [367 U.S. 221] It is further contended that, even

if the adjective "active" may properly be implied as a qualification

upon the term "member," petitioner's conviction would nonetheless be

unconstitutional because, so construed, the statute would be

impermissibly vague under the Fifth and Sixth Amendments,{12} and, so

applied, would, in any event, infringe the Sixth Amendment, in that the

indictment charged only that Scales was a "member," not an "active"

member, of the Communist Party. 1. Statutory Construction



Before reaching petitioner's constitutional claims, we should first

ascertain whether the membership clause permissibly bears the

construction put upon it below.  We think it does.



The trial court's definition of the kind of organizational advocacy that

is proscribed was fully in accord with what was held in Yates v. United

States, 354 U.S. 298.{13}  And the statute itself requires that a

defendant must have knowledge of the organization's illegal advocacy.



The only two elements of the crime, as defined below, about which there

is controversy are therefore "specific intent" and "active" membership. 

As to the former, this Court held in Dennis v. United States, 341 U.S.

494,  that, even though the "advocacy" and "organizing" provisions of

the Smith Act, unlike the "literature" section (note 1, supra), did not

expressly contain such a specific intent element, such a requirement was

fairly to be implied.  We think that the reasoning of Dennis [367 U.S.

222] applies equally to the membership clause, and are left unpersuaded

by the distinctions petitioner seeks to draw between this clause and the

advocacy and organizing provisions of the Smith Act.



We find hardly greater difficulty in interpreting the membership clause

to reach only "active" members.  We decline to attribute to Congress a

purpose to punish nominal membership, even though accompanied by

"knowledge" and "intent," not merely because of the close constitutional

questions that such a purpose would raise (cf. infra p. 228; Yates,

supra, at 319), but also for two other reasons:  it is not to be lightly

inferred that Congress intended to visit upon mere passive members the

heavy penalties imposed by the Smith Act.{14}  Nor can we assume that it

was Congress' purpose to allow the quality of the punishable membership

to be measured solely by the varying standards of that relationship as

subjectively viewed by different organizations.  It is more reasonable

to believe that Congress contemplated an objective standard fixed by the

law itself, thereby assuring an evenhanded application of the statute.



This Court, in passing on a similar provision requiring the deportation

of aliens who have become members of the Communist Party -- a provision

which rested on Congress' far more plenary power over aliens, and hence

did not press nearly so closely on the limits of constitutionality as

this enactment -- had no difficulty in interpreting "membership" there

as meaning more than the mere voluntary listing of a person's name on

Party rolls.  Galvan v. Press, 347 U.S. 522; Rowoldt v. Perfetto, 355

U.S. 115; [367 U.S. 223] see Bridges v. Wixon, 326 U.S. 135.  A similar

construction is called for here.{15}



Petitioner's particular constitutional objections to this construction

are misconceived.  The indictment was not defective in failing to charge

that Scales was an "active" member of the Party, for that factor was

not, in itself, a discrete element of the crime, but an inherent quality

of the membership element.  As such, it was a matter not for the

indictment, but for elucidating instructions to the jury on what the

term "member" in the statute meant.  Nor do we think that the objection

on the score of vagueness is a tenable one.  The distinction between

"active" and "nominal" membership is well understood in common parlance

(cf. Boyce Motor Lines v. United States, 342 U.S. 337; United States v.

Petrillo, 332 U.S. l; Sproles v. Binford, 286 U.S. 374), and the point

at which one shades into the other is something that goes not to the

sufficiency of the statute, but to the adequacy of the trial court's

guidance to the jury by way of instructions in a particular case.  See

note 29, infra.  Moreover, whatever abstract doubts might exist on the

matter, this case presents no such problem.  For petitioner's actions on

behalf of the Communist Party most certainly amounted to active

membership by whatever standards one could reasonably anticipate, and he

can therefore hardly be considered to have acted unadvisedly on this

score.



We find no substance in the further suggestion that petitioner could not

be expected to anticipate a construction of the statute that included

within its elements activity and specific intent, and hence that he was

not [367 U.S. 224] duly warned of what the statute made criminal.  It

is, of course, clear that the lower courts' construction was narrower,

not broader, than the one for which petitioner argues in defining the

character of the forbidden conduct and that therefore, according to

petitioner's own construction, his actions were forbidden by the

statute.  The contention must then be that petitioner had a right to

rely on the statute's, as he construed it, being held unconstitutional. 

Assuming, arguendo, that petitioner's construction was not unreasonable,

no more can be said than that -- in light of the courts' traditional

avoidance of constructions of dubious constitutionality and in light of

their role in construing the purpose of a statute -- there were two ways

one could reasonably anticipate this statute's being construed, and that

petitioner had clear warning that his actions were in violation of both

constructions.  There is no additional constitutional requirement that

petitioner should be entitled to rely upon the statute's being construed

in such a way as possibly to render it unconstitutional.  In sum, this

argument of a "right" to a literal construction simply boils down to a

claim that the view of the statute taken below did violence to the

congressional purpose.  Of course, a litigant is always prejudiced when

a court errs, but whether or not the lower courts erred in their

construction is an issue which can only be met on its merits, and not by

reference to a "right" to a particular interpretation.



We hold that the statute was correctly interpreted by the two lower

courts, and now turn to petitioner's basic constitutional challenge. 2.

Fifth Amendment



In our jurisprudence guilt is personal, and when the imposition of

punishment on a status or on conduct can only be justified by reference

to the relationship of that [367 U.S. 225] status or conduct to other

concededly criminal activity (here advocacy of violent overthrow), that

relationship must be sufficiently substantial to satisfy the concept of

personal guilt in order to withstand attack under the Due Process Clause

of the Fifth Amendment.  Membership, without more, in an organization

engaged in illegal advocacy, it is now said, has not heretofore been

recognized by this Court to be such a relationship.{16}  This claim

stands, and we shall examine it, independently of the claim made under

the First Amendment.



Any thought that due process puts beyond the reach of the criminal law

all individual associational relationships, unless accompanied by the

commission of specific acts of criminality, is dispelled by familiar

concepts of the law of conspiracy and complicity.  While both are

commonplace in the landscape of the criminal law, they are not natural

features.  Rather, they are particular legal concepts manifesting the

more general principle that society, having the power to punish

dangerous behavior, cannot be powerless against those who work to bring

about that behavior.{17}  [367 U.S. 226] The fact that Congress has not

resorted to either of these familiar concepts means only that the

enquiry here must direct itself to an analysis of the relationship

between the fact of membership and the underlying substantive illegal

conduct, in order to determine whether that relationship is indeed too

tenuous to permit its use as the basis of criminal liability.  In this

instance, it is an organization which engages in criminal activity,{18}

and we can [367 U.S. 227] perceive no reason why one who actively and

knowingly works in the ranks of that organization, intending to

contribute to the success of those specifically illegal activities,

should be any more immune from prosecution than he to whom the

organization has assigned the task of carrying out the substantive

criminal act.  Nor should the fact that Congress has focussed here on

"membership," the characteristic relationship between an individual and

the type of conspiratorial quasi-political associations with the

criminal aspect of whose activities Congress was concerned, of itself

require the conclusion that the legislature has traveled outside the

familiar and permissible bounds of criminal imputability.  In truth, the

specificity of the proscribed relationship is not necessarily a vice; it

provides instruction and warning.{19}



What must be met, then, is the argument that membership, even when

accompanied by the elements of knowledge and specific intent, affords an

insufficient quantum of participation in the organization's alleged

criminal activity, that is, an insufficiently significant form of aid

and encouragement to permit the imposition of criminal sanctions on that

basis.  It must indeed be recognized that a person who merely becomes a

member of an illegal organization, by that "act" alone need be doing

nothing more than signifying his assent to its purposes and activities

on one hand, and providing, on the other, only the sort of moral

encouragement which comes from the knowledge that others believe in what

the organization is doing.  It may indeed be argued that such assent and

encouragement do fall short of the concrete, practical impetus given to

a criminal enterprise which is lent, for instance, by a [367 U.S. 228]

commitment on the part of a conspirator to act in furtherance of that

enterprise.  A member, as distinguished from a conspirator, may indicate

his approval of a criminal enterprise by the very fact of his membership

without thereby necessarily committing himself to further it by any act

or course of conduct whatever.



In an area of the criminal law which this Court has indicated more than

once demands its watchful scrutiny (see Dennis, supra, at 516; Yates,

supra, at 328, and see also Noto v. United States, decided today, post,

p. 290), these factors have weight{20} and must be found to be overborne

in a total constitutional assessment of the statute.  We think, however,

they are duly met when the statute is found to reach only "active"

members having also a guilty knowledge and intent, and which therefore

prevents a conviction on what otherwise might be regarded as merely an

expression of sympathy with the alleged criminal enterprise,

unaccompanied by any significant action in its support or any commitment

to undertake such action.



Thus, given the construction of the membership clause already discussed,

we think the factors called for in rendering members criminally

responsible for the illegal advocacy of the organization fall within

established, and therefore presumably constitutional, standards of

criminal imputability. 3. First Amendment



Little remains to be said concerning the claim that the statute

infringes First Amendment freedoms.  It was settled in Dennis that the

advocacy with which we are here concerned is not constitutionally

protected speech, and it was further established that a combination to

promote [367 U.S. 229] such advocacy, albeit under the aegis of what

purports to be a political party, is not such association as is

protected by the First Amendment.  We can discern no reason why

membership, when it constitutes a purposeful form of complicity in a

group engaging in this same forbidden advocacy, should receive any

greater degree of protection from the guarantees of that Amendment.



If it is said that the mere existence of such an enactment tends to

inhibit the exercise of constitutionally protected rights, in that it

engenders an unhealthy fear that one may find himself unwittingly

embroiled in criminal liability, the answer surely is that the statute

provides that a defendant must be proven to have knowledge of the

proscribed advocacy before he may be convicted.  It is, of course, true

that quasi-political parties or other groups that may embrace both legal

and illegal aims differ from a technical conspiracy, which is defined by

its criminal purpose, so that all knowing association with the

conspiracy is a proper subject for criminal proscription as far as First

Amendment liberties are concerned.  If there were a similar blanket

prohibition of association with a group having both legal and illegal

aims, there would indeed be a real danger that legitimate political

expression or association would be impaired, but the membership clause,

as here construed, does not cut deeper into the freedom of association

than is necessary to deal with "the substantive evils that Congress has

a right to prevent."  Schenck v. United States, 249 U.S. 47, 52.  The

clause does not make criminal all association with an organization which

has been shown to engage in illegal advocacy.  There must be clear proof

that a defendant "specifically intend[s] to accomplish [the aims of the

organization] by resort to violence."  Noto v. United States, post at p.

299.  Thus, the member for whom the organization is a vehicle for the

advancement of legitimate aims and policies does not fall within the ban

of the statute:  he [367 U.S. 230] lacks the requisite specific intent

"to bring about the overthrow of the government as speedily as

circumstances would permit."  Such a person may be foolish, deluded, or

perhaps merely optimistic, but he is not by this statute made a

criminal.



We conclude that petitioner's constitutional challenge must be

overruled.{21} III EVIDENTIARY CHALLENGE



Only in rare instances will this Court review the general sufficiency of

the evidence to support a criminal conviction, for ordinarily that is a

function which properly belongs to and ends with the Court of Appeals. 

We do so in this case and in No. 9, Noto v. United States, post, p. 290

-- our first review of convictions under the membership clause of the

Smith Act -- not only to make sure that substantive constitutional

standards have not been thwarted, but also to provide guidance for the

future to the lower courts in an area which borders so closely upon

constitutionally protected rights.



On this phase of the case, petitioner's principal contention is that the

evidence was insufficient to establish that the Communist Party was

engaged in present advocacy of violent overthrow of the Government in

the sense required by the Smith Act, that is, in "advocacy of action"

for the accomplishment of such overthrow either immediately or as soon

as circumstances proved propitious, and uttered in terms reasonably

calculated to "incite" to such action.  See Yates v. United States,

supra, 318-322.  This contention rests largely on the proposition that

the [367 U.S. 231] evidence on this aspect of the case does not differ

materially from that which the Court in Yates stated was inadequate to

establish that sort of Party advocacy there.



In Yates, the Government sought to use the Communist Party, or at least

the California branch of the Party, as the conspiratorial nexus between

various individuals charged, among other things, with a conspiracy to

engage in illegal advocacy.  Upon reversal here for error in the trial

court's charge on the nature of the advocacy proscribed by the Smith

Act, this Court, in the exercise of its powers under 28 U.S.C. 

2106,{22} went on to consider the adequacy of the evidence for the

purpose of determining as to which defendants an acquittal should be

ordered, and as to which ones the way for a new trial should be left

open.  In the process, it was stated that the Government's "Party

conspiratorial nexus" theory was unavailing because the evidence fell

short of establishing that the Party's advocacy constituted "a call to

forcible action" for the accomplishment of immediate or future

overthrow, in contrast to the teaching of mere "abstract doctrine"

favoring that end.  354 U.S. at 329.  At the same time, however, it was

found that the record reflected certain episodes which, it was

considered, might permissibly lend themselves to an inference of illegal

advocacy by particular Party members (see id. at .  It was concluded,

however, that these and similar episodes were too "sporadic" and remote

(id., 330) to justify their attribution to the Party, possibly casting

its abstract teaching of the "Communist classics" in a different mold. 

Accordingly, the Court directed an acquittal of those defendants who had

not themselves been connected with such episodes. [367 U.S. 232]



We agree with petitioner that the evidentiary question here is

controlled in large part by Yates.  The decision in Yates rested on the

view (not articulated in the opinion, though perhaps it should have

been) that the Smith Act offenses, involving as they do subtler elements

than are present in most other crimes, call for strict standards in

assessing the adequacy of the proof needed to make out a case of illegal

advocacy.  This premise is as applicable to prosecutions under the

membership clause of the Smith Act as it is to conspiracy prosecutions

under that statute as we had in Yates.



The impact of Yates with respect to this petitioner's evidentiary

challenge is not limited, however, to that decision's requirement of

strict standards of proof.  Yates also articulates general criteria for

the evaluation of evidence in determining whether this requirement is

met.  The Yates opinion, through its characterizations of large portions

of the evidence which were either described in detail or referred to by

reference to the record, indicates what type of evidence is needed to

permit a jury to find that (a) there was "advocacy of action" and (b)

the Party was responsible for such advocacy.



First, Yates makes clear what type of evidence is not, in itself,

sufficient to show illegal advocacy.  This category includes evidence of

the following:  the teaching of Marxism-Leninism and the connected use

of Marxist "classics" as textbooks; the official general resolutions and

pronouncements of the Party at past conventions; dissemination of the

Party's general literature, including the standard outlines on Marxism;

the Party's history and organizational structure; the secrecy of

meetings and the clandestine nature of the Party generally; statements

by officials evidencing sympathy for and alliance with the U.S.S. R.  It

was the predominance of evidence of this type which led the Court to

order the acquittal of several Yates defendants, with the comment that

they had [367 U.S. 233] not themselves "made a single remark or been

present when someone else made a remark which would tend to prove the

charges against them."  However, this kind of evidence, while

insufficient, in itself, to sustain a conviction, is not irrelevant. 

Such evidence, in the context of other evidence, may be of value in

showing illegal advocacy.



Second, the Yates opinion also indicates what kind of evidence is

sufficient.  There, the Court pointed to two series of events which

justified the denial of directed acquittals as to nine of the Yates

defendants.  The Court noted that with respect to seven of the

defendants, meetings in San Francisco which were described by the

witness Foard might be considered to be "the systematic teaching and

advocacy of illegal action which is condemned by the statute."  354 U.S.

at 331.  In those meetings, a small group of members were not only

taught that violent revolution was inevitable, but they were also taught

techniques for achieving that end.  For example, the Yates record

reveals that members were directed to be prepared to convert a general

strike into a revolution and to deal with Negroes so as to prepare them

specifically for revolution.  In addition to the San Francsico meetings,

the Court referred to certain activities in the Los Angeles area "which

might be considered to amount to `advocacy of action'" and with which

two Yates defendants were linked.  Id.   Here again, the participants

did not stop with teaching of the inevitability of eventual revolution,

but went on to explain techniques, both legal and illegal, to be

employed in preparation for or in connection with the revolution.  Thus,

one member was "surreptitiously indoctrinated in methods . . . of moving

`masses of people in time of crisis' "; others were told to adopt such

Russian pre-revolutionary techniques as the development of a special

communication system through a newspaper similar to Pravda.  Id. 332. 

Viewed together, [367 U.S. 234] these events described in Yates indicate

at least two patterns of evidence sufficient to show illegal advocacy: 

(a) the teaching of forceful overthrow, accompanied by directions as to

the type of illegal action which must be taken when the time for the

revolution is reached, and (b) the teaching of forceful overthrow,

accompanied by a contemporary, though legal, course of conduct clearly

undertaken for the specific purpose of rendering effective the later

illegal activity which is advocated.  Compare Noto v. United States,

post at 297-299.



Finally, Yates is also relevant here in indicating, at least by

implication, the type and quantum of evidence necessary to attach

liability for illegal advocacy to the Party.  In discussing the

Government's "conspiratorial nexus theory" the Court found that the

evidence there was insufficient because the incidents of illegal

advocacy were infrequent, sporadic, and not fairly related to the period

covered by the indictment.  In addition, the Court indicated that the

illegal advocacy was not sufficiently tied to officials who spoke for

the Party as such.



Thus, in short, Yates imposes a strict standard of proof, and indicates

the kind of evidence that is insufficient to show illegal advocacy under

that standard, the kind of evidence that is sufficient, and what pattern

of evidence is necessary to hold the Party responsible for such

advocacy.  With these criteria in mind, we now proceed to an examination

of the evidence in this case.



We begin with what was also present in Yates, the general evidence as to

the doctrines, organization, and tactical procedures of the Communist

Party, exposited by Lautner, the Government's foundational witness both

here and in Yates.  Together with documentary evidence, Lautner's

testimony, based on high-level participation in Party affairs from 1929

to 1950, furnished the necessary background in Party theory and

terminology which is [367 U.S. 235] crucial to the proper appreciation

of the tenor of Party pronouncements, for these pronouncements, taken

out of this larger context, might appear harmless and peaceable without

in reality being so.  The distinction that was drawn in Yates between

theoretical advocacy and advocacy of violence as a rule of action is, of

course, basic, but when the teaching is carried out in a special

vocabulary, knowledge of that vocabulary is at least relevant to an

understanding of the quality and tenor of the teaching.



Lautner's testimony, having covered the pre-war history of the Party,

passed to the 1945 reconstitution of the organization.  Prior to that

time the Party, as the Communist Political Association, had adhered to

the position that the change to a Communist society could be achieved

through peaceful, democratic means.  The reconstitution, which was

finally approved at a National Convention in July of 1945, involved a

return to the principles of Marxism-Leninism. As found in the so-called

Communist classics, the adoption of a program of industrial

concentration, the increased effort among Negroes, especially in the

South, the complete repudiation of the former Party leader, Browder, and

his doctrine of "revisionism," all signified, so Lautner testified, that

the United States was henceforth to be regarded as no exception to the

teachings of Lenin that communism could only be achieved in an

industrialized nation such as this by resort to violent revolution, and

that a belief in peaceful means was foolishness or treachery.  Lautner

testified that the industrial concentration program, as well as the

emphasis on the Negro minority, was an articulation of this doctrine, in

that it involved a concentration on those elements in society which the

Party believed could do most damage, in time of crisis, to the existing

social fabric in relation to their numbers, and that victory at the

polls was not its concern.  Lautner testified that it was further

resolved at the 1945 National Convention that, in order to implement

[367 U.S. 236] the principles of the reconstitution, a program of

thorough reeducation of the whole Party membership should be undertaken,

and Lautner himself was charged with the duty of carrying out this

reeducation as a District Organizer and State Chairman.  The balance of

Lautner's testimony was devoted to a detailed description of the

elaborate underground "apparatus" which he and others were charged with

setting up in the various portions of the country assigned to them.



Mrs. Hartle testified as to her activities in the Party, primarily in

the Pacific Northwest area, from 1934 to approximately 1952.  Mrs.

Hartle confirmed, in many respects, Lautner's testimony as to Party

teaching and doctrine throughout this period.  After the 1945

reconstitution, she was sent to the National Training School in New

York, where thirty "officers and functionaries" from various parts of

the country were "re-educated" in accordance with the decisions and

resolutions of the 1945 Convention.  She was taught about "dialectical

materialism," and the theory of struggle between the capitalist class

and the working class.  They were taught and reference was made to a

quotation . . . that it is the duty of a revolutionary not to try to

gloss over this class struggle or to try to compromise it, but to

unravel it, to allow this class struggle and help this class struggle to

unfold, the clash to proceed. The class was told that "it is the duty of

a Marxist-Leninist to be a revolutionary, and not a reformist."  They

were further instructed "that the United States . . . was objectively at

the stage for Proletarian revolution," that the time for the proletariat

revolution would come when the objective conditions of political or

economic crisis coincided with the "subjective condition" of a Communist

Party which was large enough, with enough "influence" among the working

classes, "to give the necessary leadership to lead to the seizure of

power." [367 U.S. 237]



Much of the testimony summarized so far may indeed be considered to

relate to the mere theory of revolution, abstract advocacy.  However,

the teaching at the National Training School also descended to a lower

level of generality.  Mrs. Hartle was told that the "role" of the

Communist Party was "preparing the workers and the people to be ready to

be able to take power, to know how to take power" when a "revolutionary

situation arose."  At that time, "the plan and program of the Party

would be to lead the working class to seize power" and "to smash the

Bourgeois state machine."  With respect to this latter task, the class

was told: . . . the Bourgeois state machine is not smashed after the

seizure of power, but in the course of seizing power that the armies,

the police, the prisons have to be dealt with and smashed up and

rendered inoperative in the course of the seizure of power, that other

matters, that some other matters in replacing the, a state, such as the,

some of the administrative apparatus and some other matters would take a

longer period of time, but the forcible elements of the capitalist state

must be smashed in the course of taking power, but some other things

like reorganizing the banking system, or some matters like that, could

be done in a somewhat longer process.



In pressing toward the fulfillment of the "subjective conditions"

necessary for such action, Mrs. Hartle was taught that "the struggles

and activities of the Communist Party prepare the working class for this

act of seizure of power," and the history of the Russian Communist Party

and Revolution was taught in the school and the events and principles of

this history were constantly related to contemporary conditions in the

United States.  Thus, for example, the class was told that the coalition

of workers and peasants which had proved so successful [367 U.S. 238] in

Russia should have its counterpart in America in a coalition of workers

and Negroes, especially in the South. Following her classes at the

National Training School, Mrs. Hartle returned to Washington, where she

helped to recruit and organize in "underground fashion" the employees of

the Boeing Aircraft Plant in that State.  At the same time, Mrs. Hartle

was active in Party schools in her area.  She testified that she had

both been instructed and had herself taught: . . . the means by which

the ultimate goal might be attained was that those means would be

forcible.  The teaching was that any teaching, any theory of a peaceful

road to socialism, or a growing over from capitalism to socialism was a

betrayal of the working class and that the Communist Party leading the

working class would have to arm it in the first place with the theory

that the workers must know and must be prepared to know that they can

only take power forcibly. *    *    *    *



The action that Communist Party members should take in preparing for the

ultimate goal that I was taught and that I taught were to build the

Communist Party as the vanguard party of the working class, a

theoretically equipped party, equipped with the theory of

Marxism-Leninism, a highly organized party that could act as a unit, as

a monolithic whole, with democratic centralism, the principle guiding it

. . . , and that the Communist Party should be the connection between

the vanguard and the working class millions in this preparation by

working with and winning the confidence of the working class and allies

of the working class, such as, the Negro people, the poor farmers, other

national groups, and in this way, in the course of struggle, constant

struggle taking the forms of strikes [367 U.S. 239] and demonstrations

and picket lines and marches and various kinds of activities to train

the working class and the people for revolutionary battie.



The witness Duran, who attended a Party School in Los Angeles in 1951,

described what he had been taught by one Moreau, a member of the

National Education Commission of the Communist Party:



He divided in his explanation the . . . Proletariat . . . as being

divided into two groups.  Those in industry that would lead the

revolution, and those in agriculture that would follow, and speaking

about the revolution, Professor Moreau stated to the class in a very

emotional manner that he could see himself carrying a gun against the

capitalist S.O.B.'s and explained to the class it was all based on the

science of Marx and Lenin. *    *    *    *



In discussing the Proletarian Revolution more thoroughly, Professor

Moreau explained throughout the school that the Proletarian Revolution

would only come about if a Bolshevik rank and file, the sincere

Communists, would get out and teach, and teach the people, the

desirability of changing the system and the necessity of changing them,

and in doing that, we had to teach the people that you cannot change the

capitalist system to a Socialist system to socialism successfully, the

peaceful way; it had to be erupted from, and had to be taken away by

force and violence, away from them and the entire state machinery of the

Bourgeoisie smashed, the F.B.I., the courts and the Army and the Navy,

whatever was on it, what -- the entire instrumentality of the

Bourgeoisie had to be smashed and substituted by the Proletarian

machinery.



. . . and during the period of the revolution the transition, the

violent transition, we had to make [367 U.S. 240] mass work to get the

masses away from the Bourgeoisie so they would not join a

counterrevolution movement.



It meant, after the people of the Communist Party, the vanguard, had

become satisfied, that the Bourgeoisie machinery was smashed, and they

were in control, then they also had to collect guns from the people and

control the people themselves.



Q. Do I understand, Mr. Moreau [sic] that, during this period of

revolution, the people, that is, the masses of the people, would be

carrying guns?



A. Yes, sir.



Q. And after the revolution do I understand that the Party would go

around and collect these guns and take them away from the people?



A. Yes, sir; take them away from those that helped them overthrow the

capitalist system in order to assure the revolution itself. . . .



Immediately after the overthrow of the capitalist system and

establishment of the dictatorship of the Proletariat, it became

necessary for a Communist to establish Red Army in this country, not

only to secure and maintain the dictatorship of the Proletariat, but

control the people as well, and those people that did help overthrow the

Government would not have any civil rights whatsoever, no voting rights,

or anything; they would be dished out to them according to the way they

felt, way they fell in with the Communist office by the dictatorship.



Q. Now, Mr. Duran, what, if anything, did Mr. Moreau teach you in this

school about the role that would be played by the Communist Party during

this period of revolution when the Government would be overthrown by

force and violence?



A. The role of the Communist Party, and specifically within the

Communist Party, the Bolsheviks [367 U.S. 241] was to play a vanguard

role, a leading role; that is explained scientifically in that so that

first we teach the people the desirability of overthrowing them and

teach them the, it could only be done through the Proletarian

Revolution, and then, when the time is ripe, we could stampede them

against the capitalist class.



Duran also testified to what he had been taught by Art Berry, District

Organizer for seven States, in a Colorado school in 1952: . . . we were

discussing the scientific application of Marx and Lenin to the

transition period between capitalism and socialism, and he demonstrated

this with the kettle of water, that you could put a quantitative amount

of water in a kettle and set it somewhere, nothing would happen, just

like the masses, nothing does happen.



. . . [he] said, however, if you get that same amount, same kettle with

the same amount of water in it, and put fire underneath it, then you

begin to get quantitative changes, and eventually it reaches a nodule

point to where it has a qualitative and abrupt transition into steam. 

He continued, same applied to the development of the revolution in this

sense, the American people will not and cannot make a successful change

over from capitalism to socialism by themselves, like the fire

underneath the water, the Communist Party teaches and leads them to

where when the society reaches that nodule point, the Communist people

teaches the people before and then leads them to make that abrupt change

into the society of socialism. *    *    *    *



Substantially, within the same explanation of violent overthrow of the

Government . . . , he stated [367 U.S. 242] that not only would it be

that, but that we would have to set up barricades, establish a central

point from where we would participate from; he stated the "we,"

literally speaking, "we," would have to have a central point, because,

during the revolution, it may become necessary to ebb, retreat in

certain battles, and we would have to learn to retreat in an

organizational way and a correct way.  It was essential to learn to ebb

as it was to flow on the revolution.



In the ebbing, we were to see that we ebb before the enemy wiped

everybody out.  Ebbing to the central point that had been barricaded,

reorganization, and then at the correct time start flowing forward in

the revolution.



The witness Obadiah Jones testified concerning a Party Training School

in St. Louis which he attended in 1947.  Jones was taught "that the only

way the national problem could be solved would be in connection with the

Proletariat Revolution."  Jones was also instructed as to the nature of

a Communist army:



A. He said general staff of an army was different from the Communist

Party . . . general staff of an army operated from a safe spot from

behind the line and led the army from a far distance, and that the

Communist Party went forth and fought with the workers.



Q. Did he say anything with reference to the techniques?



A. Yes, he said that you couldn't be a good leader without knowing all

of the techniques of fighting.



Q. Did he say anything with respect to carrying out instructions?



A. Yes, sir.



Q. What did he say in that connection?



A. He said that capitalists in the army did not [367 U.S. 243] carry out

the instructions in full, but the Communists did, irregardless of what

the cost would be, they would carry out instructions completely.



At the final session, the students were required by the instructor to

take a pledge:



The pledge was each of us are Communists or members of the Party and

each of us have a responsibility and we must carry out our

responsibility and work for the interests of the Party and its

recipients and carry out the full will of the Party even though it meant

to fight and to kill, we must carry out the demands of the Party and all

of them.



The witnesses Clontz, Childs, and Reavis testified primarily as to their

dealings with petitioner Scales.  We regard this testimony, which finds

no counterpart in the Yates record with respect to any of the defendants

whose acquittal was directed, as being of special importance in two

ways:  it supplies some of the strongest and most unequivocal evidence

against the Party based on the statements and activities of a man whose

words and deeds, by virtue of his high Party position, carry special

weight in determining the character of the Party from the standpoint of

the Smith Act, and it appears clearly dispositive as to the quality of

petitioner's Party membership, and his knowledge and intent, when we

come to consider him not as a Party official, but as the defendant in

this case.{23} [367 U.S. 244]



In 1948, Ralph C. Clontz, Jr., then a student at Duke Law School,

undertook to furnish the F.B.I. with information he had gained about

Communist Party activities in North Carolina, and to volunteer his

services in attempting to penetrate the Party to acquire further

information.  As a result, in September of that year, Clontz sent a

postcard to petitioner, informing him that he was a law student and that

he was interested in communism.  Petitioner replied by sending Clontz "a

large cardboard box filled with Communist literature."  An accompanying

letter, headed "Carolina District Communist Party U.S.A." with the

notation "Junius Scales, Chairman," explained: Under separate cover, I

have already sent you a rather varied sample of our literature.  I hope

you will give it close attention.  If I can discuss any matter relating

to my Party and its program with you in person, I will be glad to do so.

Several days later, Clontz went to visit petitioner, and thus began a

relationship which was to bring him into intimate contact with the

Communist Party, its teachings, purposes and activities.



At an early meeting between the two, petitioner told Clontz that it was

impossible for the Communist Party to succeed to power through educating

the people in this country and gaining their votes at the polls, but

that a forceful revolution would be necessary.  At a later meeting, the

discussion was not limited to the theoretical inevitability of

revolution, but went beyond the theory itself to an explanation of

"basic strategy" which the [367 U.S. 245] Communist Party was using to

give concrete foundation to the theory, i.e., to bringing about the

revolution: The defendant [petitioner] explained that basically their

strategy was bottomed on a concept that there were two classes of people

in this country, that could be used by the Communist Party to foment a

revolution.



The first class he termed the working class or Proletariat, working

class, he said, had as its natural born leaders or vanguard, the

Communist Party.



The second class, he described, in this country was what he termed the

Negro nation.  The Negro nation he described as a separate nation in

what he termed the Black Belt, including thirteen Southern States, and

the strategy of the Communist Party was to bring the working class, led

by the Communist Party, and what he termed the Negro nation, together,

to bring about a forceful overthrow of the Government.



Now Scales and the Communist Party taught that the basic strategy of the

Communist Party would never change, but that tactics might be altered as

the situation changed.



On petitioner's invitation, Clontz joined the Communist Party on January

17, 1950.  He was not assigned to a particular group, but became a

member "at large," in order to continue his instruction under

petitioner.  In the course of this instruction, petitioner repeatedly

told Clontz of the necessity for revolution to bring about the

Dictatorship of the Proletariat.  Scales analogized the situation in the

United States to that, in Russia prior to the 1917 Revolution.  He

pointed out that revolution would be "easier" in this country than it

had been in Russia: that, while in the Soviet Union there had been no

one to help the Soviet Party, that, in this country, [367 U.S. 246] when

the revolution started, we would have the benefit of the help from the

mother country, Russia, in bringing about our own revolution, because

part of the purposes of the Communist Party in the Soviet Union was

international in scope, and that we naturally would continue to receive

help in all circumstances from the Soviet Party when the revolution was

started here in this country. Petitioner explained that the Soviet Union

could not be expected to land troops to start a revolution here.  A

similar procedure had been unsuccessful in China.  Rather, he said "that

we Communists in this country would have to start the revolution, and we

would have to continue fighting it," but that the Soviet Union would aid

the Communist Party in this endeavor by furnishing it "with experienced

revolutionaries from Russia."{24}  He added that, if the United States

declared war on the Communists in their revolution, then the Soviet

Union would land troops, and he said that would be a bloody time for

all. When asked [367 U.S. 247] by Clontz when all this would occur,

Scales noted that a "depression would greatly accelerate the coming of

the revolution" if the Communists used it properly to prepare the masses

of the people.



Petitioner arranged for Clontz to be awarded a scholarship to study in

New York at the Jefferson School of Social Science, an official

Communist Party School, during the month of August, 1950.  Because

Clontz arrived at a time when few scheduled courses were being offered,

the bulk of his training at the school was received in private

instruction from Doxey A. Wilkerson, the teacher with whom petitioner

had communicated in arranging Clontz' scholarship.{25}  Wilkerson, like

petitioner, told [367 U.S. 248] Clontz, that the Communist Party

recognized and expressed to themselves that the only kind of means would

be proper means, which would be forceful means, that no longer was there

any even pretense among intelligent Communists that any voting system or

any people's election could bring this government. He also stated, as

Scales had, that the revolution basically would come about by combining

the forces of what had been already identified as the Negro nation and

the working class as the vanguard.



In line with this strategy, Wilkerson advised Clontz that he should not

let his membership in the Communist Party become known, that, by

remaining "under cover," he "would be much more helpful to the Party

when the revolution came."  As part of his undercover activity, Clontz

was directed to attempt to infiltrate various organizations of the

working class in order to achieve "a background of respectability" and

to be able to lead such organizations toward the goal of the Communist

Party, . . . the undermining of the Government and overthrowing the

Government, bringing communism in the United States. But Clontz was not

to lose contact with the Party, for if he "got isolated without Party

direction . . . , [his] efforts would be pretty [367 U.S. 249] largely

wasted."  In connection with these instructions, Wilkerson mentioned one

of the things that frightened the United States leaders was they knew

that not only did they have to contend with China and the other

Communist-dominated countries, but that also in every capitalist country

the working class party, the Communists, would be working from within.



When Clontz returned to North Carolina, he reported to petitioner on his

activities at the Jefferson School.  He also informed petitioner, under

instructions from the F.B.I., that he wished to move to New York.

Petitioner arranged for Clontz to remain under his direction and to pay

dues to him, while in New York, rather than effecting a formal transfer.

 Clontz moved to New York in March of 1951.  While there Scales directed

him to "get in with the A.C.L.U. organization to report on what value

they might have in the coming struggle. . . ."  Clontz had also been

advised by an associate of petitioner to "infiltrate . . . the Civilian

Defense setup."



The witnesses Childs and Reavis also testified to their relationship

with Scales, who, among other things, arranged for their attendance at

Party schools where their instruction followed much the same pattern as

that described by Clontz.{26}  In 1952, Childs attended a "Party [367

U.S. 250] Training School" of which petitioner was a director.  The

school was given "for outstanding cadres in the North and South Carolina

and Virginia Districts of the Communist Party."  It was held on a farm

and strict security measures were taken.  The District Organizer of

Virginia instructed at the school.  He told the students that "the role

of the Communist Party is to lead the working masses to the overthrow of

the capitalist government."  With respect to the preliminary task of

gaining the "broad coalition" necessary to achieve this task, he stated

that, . . . the Communist Party has a program of industrial

concentration in which they try to get people, that is, people who are

Communist Party members, into key shops or key industries which the

Party has determined or designated to be industrial concentration

industries or plants.  This is so that the Communist Party members in a

particular plant will be able to have a cell, or a Communist Party group

in which they will be able to more effectively plan for such things as

attempting to control the union in that particular plant.



And, in a compulsory recreation period, this same instructor gave a

demonstration of jujitsu and, explaining that the students "might be

able to use this on a picket line," how to kill a person with a pencil. 

According to Childs' testimony, what he showed us to do was to take our

pencil, . . . just take the pencil and place it simply in the palm of

your hand so that the back will rest against the base of the thumb, and

then we were to take it, and the person, and give a quick jab so that it

would penetrate through here [demonstrating], and enter the [367 U.S.

251] heart, and then if we could not do that, we just take it and grab

it at the base of the throat.



Reavis attended the Party's New York Jefferson School in 1942.  In a

course on "Negro History," the students, drawn primarily from the South,

were taught that . . . the Negro people was the only revolutionary group

within the United States that we could align themselves [sic] with, and

hope to reach their [sic] gains through the avenue of force and

violence, by overthrow of the Government, by Proletariat faction. . . .

Reavis was later advised to seek employment at the Western Electric

Plant in Winston-Salem.  He stated: I bumped into Mr. Scales at Harvey's

home and I -- the report said . . . the advice I'd been getting was

confirmed by him.  I advanced the question on what I should do in case I

did get employment there at Western Electric, and I knew it was a,

Government work, what I should do in case I was asked to sign certain

papers, and I was told to do the same, that they had when signing a

Taft-Hartley affidavit, to go ahead and sign them, that, before they

did, the defendant asked me if I had signed any papers that might be

used as proof that I was in the Party, and I didn't remember any.



We conclude that this evidence sufficed to make a case for the jury on

the issue of illegal Party advocacy.  Dennis and Yates have definitely

laid at rest any doubt that present advocacy of future action for

violent overthrow satisfies statutory and constitutional requirements

equally with advocacy of immediate action to that end.  341 U.S. at 509;

354 U.S. at 321.  Hence, this record cannot be considered deficient

because it contains no evidence of advocacy for immediate overthrow.



Since the evidence amply showed that Party leaders were continuously

preaching during the indictment period [367 U.S. 252] the inevitability

of eventual forcible overthrow, the first and basic question is a narrow

one:  whether the jury could permissibly infer that such preaching, in

whole or in part, was aimed at building up a seditious group and

maintaining it in readiness for action at a propitious time . . . the

kind of indoctrination preparatory to action which was condemned in

Dennis. Yates, supra at   On this score, we think that the jury, under

instructions which fully satisfied the requirements of Yates,{27} was

entitled to infer from this [367 U.S. 253] systematic preaching that,

where the explicitness and concreteness, of the sort described

previously, seemed necessary and prudent, the doctrine of violent

revolution -- elsewhere more a theory of historical predictability that

a rule of conduct -- was put forward as a guide to future action, in

whatever tone, be it emotional or calculating, that the audience and

occasion required; in short, that "advocacy of action" was engaged in.



The only other question on this phase of the case is whether such

advocacy was sufficiently broadly based to permit its attribution to the

Party.  We think it was.  The advocacy of action was not "sporadic" (cf.

p. 226, supra), the instances of it being neither infrequent, remote in

time, nor casual.{28}  It cannot be said that [367 U.S. 254] the jury

could not have found that the criminal advocacy was fully authorized and

condoned by the Party.  We regard the testimony of the witnesses, whose

credibility, of course, is not for us, as indicating a sufficiently

systematic and substantial course of utterances and conduct on the part

of those high in the councils of the Party, including the petitioner

himself, to entitle the jury to infer that such activities reflected

tenets of the Party.  The testimony described activities in various

States, including the teaching at some seven schools, among them the

national Party school.  The witnesses told of advocacy by high Party

officials, including that of leaders of the Party in nine States. 

Further, there was testimony that the Party followed the principle of

"democratic centralism" whereby a position once adopted by the Party

must be unquestionably adhered to by the whole membership.  The

conformity of the views expressed and the terms employed in advocating

violent overthrow in such States as Washington, North Carolina,

Missouri, Colorado and Virginia could reasonably be taken by the jury as

a practical manifestation of "democratic centralism."  Another concrete

illustration of this principle could have been found in the circumstance

that, in almost every instance where a speaker engaged in advocacy of

violent overthrow, he not only advocated violence to his audience but

urged others to go out and do likewise. All of these factors combine to

justify the inference that the illegal individual advocacy as to which

testimony was adduced was in truth the expression of Party policy and

purpose.



The requirement of Party imputability is adequately met in the record.

(See note 18, supra.)



The sufficiency of the evidence as to other elements of the crime

requires no exposition.  Scales' "active" membership in the Party is

indisputable, and that issue was properly submitted to the jury under

instructions that [367 U.S. 255] were entirely adequate.{29}  The

elements of petitioner's "knowledge" and "specific intent" (ante, p.

220) require no further discussion of the evidence beyond that already

given as to Scales' utterances and activities.  Compare Noto v. United

States, post at 299-300.  They bear little resemblance to the

fragmentary and equivocal utterances and conduct which were found

insufficient in Nowak v. United States, 356 U.S. 660, 666-667, and in

Maisenberg v. United States, 356 U.S. 670, 673.



We hold that this prosecution does not fail for insufficiency of the

proof. IV ALLEGED TRIAL ERROR



Petitioner contends that a number of errors were committed, having the

effect of vitiating the fairness of his trial.  For reasons

substantially similar to those given by the Court of Appeals (260 F.2d

386), we find that none of petitioner's contentions raise points

meriting reversal. 1. Admission of Remote or Prejudicial Evidence



Petitioner complains as to the admission of certain evidence relating to

the Party's general or specific purposes.  In particular, he objects to

the admission of evidence about the Party's program in the so-called

"Black Belt," and especially to the admission of a pamphlet called "I

Saw the Truth in Korea," which contained [367 U.S. 256] a very gruesome

description of alleged American atrocities in Korea.  There can be no

doubt that this matter, and particularly the latter, would not have

reflected well on the petitioner or the Party in the eyes of the jury,

but if it was relevant to an element of the crime, then whether its

asserted prejudicial effect so far outweighed its probative value as to

require exclusion of the evidence, was a decision which rested in the

sound discretion of the trial judge.  Particularly in light of the fact

that the most damaging of this material emanated from petitioner himself

(260 F.2d at 38), we cannot say that its admission involved an abuse of

discretion which would warrant our reversal of the conclusions of the

trial judge and the Court of Appeals on this score.



We therefore need only consider whether the complained-of evidence was

legally relevant and therefore admissible.  As we have pointed out in

our review of the record, the jury could have inferred that part of the

Communist Party's program for violent revolution was the winning of

favor with the Negro population in the South, which it thought was

particularly susceptible to revolutionary propaganda and action. 

Surely, then, the evidence of the Party's teaching that the Negro

population should be given the right to form a separate nation is not

irrelevant to the issue of whether or not the Party's program as a whole

constituted a call to stand in readiness for violent action, when this

particular plank in the platform was intended as bait for one of the

substantial battalions in the hoped-for revolutionary array.  Of course,

the preaching that the Negro population in the South has the right to

form a separate nation does not, of itself, constitute illegal advocacy.

 But neither does the teaching of the abstract theory of

Marxism-Leninism, which we have held cannot, alone, form the basis for a

conviction for violation of the Smith Act, Yates v. United States,

supra; yet it cannot be seriously urged [367 U.S. 257] that evidence of

such teaching is legally irrelevant to the charge.  Similarly, the

evidence of the pamphlet on alleged American atrocities in Korea cannot

be said to be irrelevant to the issue of illegal advocacy by the Party. 

Once again, the pamphlet may not, in itself, constitute such an

incitement to violence as would justify a finding that the Party

advocated violent overthrow, but it is possible to infer from it that it

was the purpose of the Party to undermine the Government in the eyes of

the people in time of war as a preparatory measure, albeit legal in

itself, to the teaching and sympathetic reception of illegal advocacy to

violent revolution.



Petitioner also argues that this and other evidence was not connected up

with him or his activities.  Whether it was or not, since it is

necessary under the membership clause to prove the advocacy of the Party

as an independent element of the offense, this renders admissible

evidence not connected up with the defendant in the accepted conspiracy

sense.  (See note 23, supra.)  Doubtless because of this there is a

special need to make sure that the evidence establishing a defendant's

personal knowledge of illegal Party advocacy and his intent in becoming

or remaining a Party member to accomplish violent overthrow is cogent

and adequately brought home to him.  But, having said that, we have said

all, in respect to petitioner's claim on this point. 2. The "Jencks"

Claim



When this case was first before us, we reversed the conviction, 355 U.S.

1, on the authority of our decision in Jencks v. United States, 353 U.S.

657.  Before the second trial, Congress enacted the so-called Jencks

statute, 18 U.S.C.  3500.  Petitioner, as we understand him, does not

now argue that that statute was incorrectly applied in his case; rather,

he attacks, on constitutional grounds, the statute itself.  That the

procedure set forth in the statute [367 U.S. 258] does not violate the

Constitution, and that the procedure required by the decision of this

Court in Jencks was not required by the Constitution was assumed by us

in Palermo v. United States, 360 U.S. 343.  It is enough to say here

that there can be no complaint by a criminal defendant that he has been

denied the opportunity to examine statements by government witnesses

which do not relate to the subject matter of their testimony, for such

statements bear no greater relevance to that testimony which he seeks to

impeach than would statements by persons unconnected with the

prosecution.  Whether the statements so relate to prosecution testimony

is a decision which is vested not in the Government, but in the trial

judge, with full opportunity for appellate review.  Once this question

has been determined, whether the statements may be useful for purposes

of impeachment is a decision which rests, of course, with the defendant

himself.



Petitioner also objects to the limitation of the Act to written

statements signed or adopted by the witness or to any form of

substantially verbatim transcription of an oral statement by the

witness.  However, petitioner does not assert that he has been

prejudiced by this provision, or that any statement or document

requested by him was withheld on the authority of the statute.  In these

circumstances, we perceive no basis for this aspect of petitioner's

claims. 3. Congressional Findings in the Communist Control Act of 1954

and the Internal Security Act of 1950



Petitioner asserts that the congressional findings as to the character

of the Communist Party contained in both statutes deprived him of a fair

trial on the issue of the character of e Party.  That legislative action

may have the effect of precluding a fair trial is not impossible, see

Delaney v. United States, 199 F.2d 107, but petitioner's claim here

appears to be no more than an afterthought.  [367 U.S. 259] There is no

showing of any prejudice, nor that, during the voire dire examination of

jurors, petitioner attempted to ascertain whether any juror had even

heard of these enactments, much less that petitioner attempted to have

any juror disqualified on that ground.  We cannot on this record regard

this as a substantial contention.



Finally, for the reasons stated by the Court of Appeals, 260 F.2d at

44-46, we think that petitioner waived any right he might have had to

question the method of choosing grand jurors by his failure to comply

with Rule 12, Fed.Rules Crim.Proc., and further that no impropriety in

the method of choosing grand jurors has been shown.



The judgment of the Court of Appeals must be



Affirmed. BLACK, J., dissenting



MR. JUSTICE BLACK, dissenting.



Petitioner was convicted for violation of the "membership clause" of the

Smith Act which imposes a penalty of up to twenty years' imprisonment

together with a fine of $20,000 upon anyone who becomes or is a member

of, or affiliates with, any . . . society, group, or assembly of persons

[who teach, advocate, or encourage the overthrow of the existing

government by force or violence], knowing the purposes thereof. . . .

Rejecting numerous contentions urged for reversal, the Court upholds a

six-year sentence imposed upon petitioner under the authority of its

prior decisions in Dennis v. United States and Yates v. United States. 

My reasons for dissenting from this decision are primarily those set out

by MR. JUSTICE BRENNAN -- that  4(f) of the Subversive Activities

Control Act bars prosecutions under the membership clause of the Smith

Act -- and MR. JUSTICE DOUGLAS -- that the [367 U.S. 260] First

Amendment absolutely forbids Congress to outlaw membership in a

political party or similar association merely because one of the

philosophical tenets of that group is that the existing government

should be overthrown by force at some distant time in the future when

circumstances may permit.  There are, however, two additional points

that I think should also be mentioned.  In an attempt to bring the issue

of the constitutionality of the membership clause of the Smith Act

within the authority of the Dennis and Yates cases, the Court has

practically rewritten the statute under which petitioner stands

convicted by treating the requirements of "activity" and "specific

intent" as implicit in words that plainly do not include them. 

Petitioner's conviction is upheld just as though the membership clause

had always contained these requirements.  It seems clear to me that

neither petitioner nor anyone else could ever have guessed that this law

would be held to mean what this Court now holds it does mean.  For that

reason, it appears that petitioner has been convicted under a law that

is, at best, unconstitutionally vague and, at worst, ex post facto.  He

has therefore been deprived of his right to [367 U.S. 261] be tried

under a clearly defined, preexisting "law of the land" as guaranteed by

the Due Process Clause, and I think his conviction should be reversed on

that ground.



Secondly, I think it is important to point out the manner in which this

case reemphasizes the freedom-destroying nature of the "balancing test"

presently in use by the Court to justify its refusal to apply specific

constitutional protections of the Bill of Rights.  In some of the recent

cases in which it has "balanced" away the protections of the First

Amendment, the Court has suggested that it was justified in the

application of this "test" because no direct abridgment of First

Amendment freedoms was involved, the abridgment in each of these cases

being, in the Court's opinion, nothing more than "an incident of the

informed exercise of a valid governmental function."  A possible

implication of that suggestion was that, if the Court were confronted

with what it would call a direct abridgment of speech, it would not

apply the "balancing test," but would enforce the protections of the

First Amendment according to its own terms.  This case causes me to

doubt that such an implication is justified.  Petitioner is being sent

to jail for the express reason that he has associated with people who

have entertained unlawful ideas and said unlawful things, and that, of

course, is a direct abridgment of his freedoms of speech and assembly

[367 U.S. 262] -- under any definition that has ever been used for that

term.  Nevertheless, even as to this admittedly direct abridgment, the

Court relies upon its prior decisions to the effect that the Government

has power to abridge speech and assembly if its interest in doing so is

sufficient to outweigh the interest in protecting these First Amendment

freedoms.



This, I think, demonstrates the unlimited breadth and danger of the

"balancing test" as it is currently being applied by a majority of this

Court.  Under that "test," the question in every case in which a First

Amendment right is asserted is not whether there has been an abridgment

of that right, not whether the abridgment of that right was intentional

on the part of the Government, and not whether there is any other way in

which the Government could accomplish a lawful aim without an invasion

of the constitutionally guaranteed rights of the people.  It is, rather,

simply whether the Government has an interest in abridging the right

involved and, if so, whether that interest is of sufficient importance,

in the opinion of a majority of this Court, to justify the Government's

action in doing so.  This doctrine, to say the very least, is capable of

being used to justify almost any action Government may wish to take to

suppress First Amendment freedoms. DOUGLAS, J., dissenting



MR JUSTICE DOUGLAS, dissenting.



When we allow petitioner to be sentenced to prison for six years for

being a "member"of the Communist Party, we make a sharp break with

traditional concepts of First Amendment rights and make serious Mark

Twain's lighthearted comment that It is by the goodness of God that, in

our country, we have those three unspeakably precious [367 U.S. 263]

things:  freedom of speech, freedom of conscience, and the prudence

never to practice either of them.



Even the Alien and Sedition Laws -- shameful reminders of an early

chapter in intolerance -- never went so far as we go today.  They were

aimed at conspiracy and advocacy of insurrection and at the publication

of "false, scandalous and malicious" writing against the Government, 1

Stat. 596.  The Government then sought control over the press "in order

to strike at one of the chief sources of disaffection and sedition." 

Miller, Crisis in Freedom (1951), p. 56.  There is here no charge of

conspiracy, no charge of any overt act to overthrow the Government by

force and violence, no charge of any other criminal act.  The charge is

being a "member" of the Communist Party, "well-knowing" that it

advocated the overthrow of the Government by force and violence, "said

defendant intending to bring about such overthrow by force and violence

as speedily as circumstances would permit."  That falls far short of a

charge of conspiracy.  Conspiracy rests not in intention alone, but in

an agreement with one or more others to promote an unlawful project. 

United States v. Falcone, 311 U.S. 205, 210; Direct Sales Co. v. United

States, 319 U.S. 703, 713.  No charge of any kind or sort of agreement

hitherto embraced in the concept of a conspiracy is made here.



We legalize today guilt by association, sending a man to prison when he

committed no unlawful act.  Today's break with tradition is a serious

one.  It borrows from the totalitarian philosophy.  As stated by

O'Brian, National Security and Individual Freedom (1955), pp. 27-28:



The Smith Act of 1940 made it unlawful for any person to be or to become

a member of or affiliate with any society, group, or assembly which

teaches, [367 U.S. 264] advocates, or encourages the overthrow or

destruction of any government in the United States by force or violence.

 These statutes [the Smith Act, together with a 1920 amendment to the

Immigration Law, Act of June 5, 1920, 41 Stat. 1008], therefore,

imported into our law the alien doctrine of guilt by association, which,

up to this time, had been regarded as abhorrent and which had never been

recognized either by the courts or by the Department of Justice, even

during the perils and excitements of the First World War.



The case is not saved by showing that petitioner was an active member. 

None of the activity constitutes a crime.  The record contains evidence

that Scales was the Chairman of the North and South Carolina Districts

of the Communist Party.  He recruited new members into the Party, and

promoted the advanced education of selected young Party members in the

theory of communism to be undertaken at secret schools.  He was a

director of one such school.  He explained the principles of the Party

to an FBI agent who posed as someone interested in joining the Party,

and furnished him literature, including articles which criticized in

vivid language the American "aggression" in Korea and described American

"atrocities" committed on Korean citizens.  He once remarked that the

Party was setting up underground means of communication, and in 1951 he

himself "went underground."  At the school of which Scales was director,

students were told (by someone else) that one of the Party's weaknesses

was in failing to place people in key industrial positions.  One witness

told of a meeting arranged by Scales at which the staff of the school

urged him to remain in his position in an industrial plant rather than

return to college.  In Scales' presence, students at the school were

once shown how to kill a person with a pencil, a device which, it was

said, might come in handy [367 U.S. 265] on a picket line.  Other

evidence showed Scales to have made several statements or distributed

literature containing implicating passages.  Among them were comments to

the effect that the Party line was that the Negroes in the South and the

working classes should be used to foment a violent revolution; that a

Communist government could not be voted into power in this country

because the Government controlled communication media, newspapers, the

military, and the educational systems, and that force was the only way

to achieve the revolution; that, if a depression were to come, the

Communist America would be closer at hand than predicted by William Z.

Foster; that the revolution would come within a generation; that it

would be easier in the United States than in Russia to effectuate the

revolution because of assistance and advice from Russian Communists. 

Petitioner at different times said or distributed literature which said

that the goals of communism could only be achieved by violent revolution

that would have to start internally with the working classes.



Not one single illegal act is charged to petitioner.  That is why the

essence of the crime covered by the indictment is merely belief --

belief in the proletarian revolution, belief in Communist creed. [367

U.S. 266]



Spinoza summed up in a sentence much of the history of the struggle of

man to think and speak what he believes: Laws which decree what everyone

must believe, and forbid utterance against this or that opinion, have

too often been enacted to confirm or enlarge the power of those who

dared not suffer free inquiry to be made, and have by a perversion of

authority turned the superstition of the mob into violence against

opponents. Tractatus Theologico-Politicus (London 1862) p. 349.



"The thought of man shall not be tried, for the devil himself knoweth

not the thought of man," said Chief Justice Brian in Y.B. Pasch, 17 Edw.

IV, f. 2, pl. 2.  The crime of belief -- presently prosecuted -- is a

carryback to the old law of treason where men were punished for

compassing the death of the King.  That law, which had been employed for

"suppression of political opposition or the expression of ideas or

beliefs distasteful to those in power," Hurst, Historic Background of

the Treason Clause, 6 Fed.B.J. 305, 307, was rejected here, and the

treason clause of our Constitution was "most praised for the reason that

it prevented the use of treason trials as an instrument of political

faction."  Id. 307.  Sedition or treason in the realm of politics and

heresy in the ecclesiastical field had long centered on beliefs as the

abhorrent criminal act.  The struggle on this side of the Atlantic was

to get rid of that concept and to punish men not for what they thought,

but for overt acts against the peace of the Nation.  Cramer v. United

States, 325 U.S. 1, 28-30.  Montesquieu, who was a force in the thinking

of those times (id., 15, n. 21), proclaimed against punishing thoughts

or words:



There was a law passed in England under Henry VIII by which whoever

predicted the king's death [367 U.S. 267] was declared guilty of high

treason.  This law was extremely vague; the terror of despotic power is

so great that it recoils upon those who exercise it.  In the king's last

illness, the physicians would not venture to say he was in danger, and

surely they acted very right. . . .  Marsyas dreamed that he had cut

Dionysius' throat.  Dionysius put him to death, pretending that he would

never have dreamed of such a thing by night if he had not thought of it

by day.  This was a most tyrannical action:  for though it had been the

subject of his thoughts, yet he had made no attempt towards it.  The

laws do not take upon them to punish any other than overt acts. The

Spirit of Laws (1949), Vol. 1, pp. 192-193.  "Words do not constitute an

overt act; they remain only in idea."  Id. 193. These were the notions

that led to the restrictive definition of treason, presently contained

in Art. III,  3, of the Constitution, which requires overt acts.  Cramer

v. United States, supra; Haupt v. United States, 330 U.S. 631, 645

(concurring opinion); Hurst, Treason in the United States, 58

Harv.L.Rev. 395.  Our long and painful experience with the law of

treason, wholly apart from the First Amendment, should be enough warning

that we as a free people should not venture again into the field of

prosecuting beliefs.



That was the philosophy behind Board of Education v. Barnette, 319 U.S.

624, We can have intellectual individualism and the rich cultural

diversities that we owe to exceptional minds only at the price of

occasional eccentricity and abnormal attitudes.  When they are so

harmless to others or to the State as those we deal with here, the price

is not too great.  But freedom to differ is not limited to things that

do not matter much.  That [367 U.S. 268] would be a mere shadow of

freedom.  The test of its substance is the right to differ as to things

that touch the heart of the existing order.



If there is any fixed star in our constitutional constellation, it is

that no official, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein.  If there are

any circumstances which permit an exception, they do not now occur to

us.



Nothing but beliefs is on trial in this case.  They are unpopular, and,

to most of us, revolting.  But they are nonetheless ideas or dogmas or

faiths within the broad framework of the First Amendment.  See

Barenblatt v. United States, 360 U.S. 109, (dissent).  The creed truer

to our faith was stated by the Bar Committee headed by Charles E. Hughes

which, in 1920, protested the refusal of the New York Assembly to seat

five members of the Socialist Party: . . . it is of the essence of the

institutions of liberty that it be recognized that guilt is personal and

cannot be attributed to the holding of opinion or to mere intent in the

absence of overt acts. . . .



Belief in the principle of revolution is deep in our traditions.  The

Declaration of Independence proclaims it: whenever any Form of

Government becomes destructive of these Ends, it is the Right of the

People [367 U.S. 269] to alter or to abolish it, and to institute new

Government, laying its Foundation on such Principles, and organizing its

Powers in such Form, as to them shall seem most likely to effect their

Safety and Happiness.



This right of revolution has been and is a part of the fabric of our

institutions.  Last century, when Russia invaded Hungary and subdued

her, Louis Kossuth came here to enlist American support.  On January 8,

1852, Lincoln spoke in sympathy of the Hungarian cause and was a member

of a committee which, on January 9, 1852, submitted Resolutions in

Behalf of Hungarian Freedom.  Among these resolutions was one that read:



That it is the right of any people, sufficiently numerous for national

independence, to throw off, to revolutionize, their existing form of

government, and to establish such other in its stead as they may choose.

Basler, Vol. II, The Collected Works of Abraham Lincoln (1953), p. 115.



On January 12, 1848, Lincoln, in an address before the United States

House of Representatives, stated: Any people anywhere, being inclined

and having the power, have the right to rise up, and shake off the

existing government, and form a new one that suits them better.  This is

a most valuable -- a most sacred right -- a right, [367 U.S. 270] which

we hope and believe, is to liberate the world. Id., Vol. I, p. 438.



Of course, government can move against those who take up arms against

it.  Of course, the constituted authority has the right of

self-preservation.  But we deal in this prosecution of Scales only with

the legality of ideas and beliefs, not with overt acts.  The Court

speaks of the prevention of "dangerous behavior" by punishing those "who

work to bring about that behavior."  That formula returns man to the

dark days when government determined what behavior was "dangerous" and

then policed the dissidents for tell-tale signs of advocacy.  What is

"dangerous behavior" that must be suppressed in its talk stage has had a

vivid history even on this continent.  The British colonial philosophy

was summed up by Sir William Berkeley, who served from 1641 to 1677 as

Virginia's Governor: . . .  I thank God there are no free schools nor

printing, and I hope we shall not have these hundred years; for learning

has brought disobedience, and heresy, and sects into the world, and

printing has divulged them, and libels against the best government.  God

keep us from both! 2 Hening's Stat.Va. 1660-1682, p. 517.  The history

is familiar; much of it is reviewed in Chafee, The Blessings of Liberty

(1956).  He states in one paragraph what I think is the Jeffersonian

conception of the First Amendment rights involved in the present case:



We must choose between freedom and fear -- we cannot have both.  If the

citizens of the United States persist in being afraid, the real rulers

of this country will be fanatics fired with a zeal to save grown men

from objectionable ideas by putting them under the care of official

nursemaids. Id. 156. In recent years we have been departing, I think,

from the theory of government expressed in the First Amendment. We have

too often been "balancing" the right of [367 U.S. 271] speech and

association against other values in society to see if we, the judges,

feel that a particular need is more important than those guaranteed by

the Bill of Rights.  Dennis v. United States, 341 U.S. 494, 

Communications Assn. v. Douds, 339 U.S. 382,  NAACP v. Alabama, 357 U.S.

449,  Uphaus v. Wyman, 360 U.S. 72, 78-79; Barenblatt v. United States,

360 U.S. 109,  Bates v. Little Rock, 361 U.S. 516, 524; Shelton v.

Tucker, 364 U.S. 479; Wilkinson v. United States, 365 U.S. 399; Braden

v. United States, 365 U.S. 431; Konigsberg v. State Bar, 366 U.S. 36; In

re Anastaplo, 366 U.S. 82.  This approach, which treats the commands of

the First Amendment as "no more than admonitions of moderation" (see

Hand, The Spirit of Liberty (1960 ed.), p. 278), runs counter to our

prior decisions.  See Lovell v. Griffin, 303 U.S. 444, 450; Murdock v.

Pennsylvania, 319 U.S. 105, 108; Board of Educational v. Barnette, 319

U.S. 624, 639.



It also runs counter to Madison's views of the First Amendment, as we

are advised by his eminent biographer, Irving Brant:



When Madison wrote "Congress shall make no law" infringing these rights,

he did not expect the Supreme Court to decide, on balance, whether

Congress could or could not make a law infringing them.  It was true, he

observed in presenting his proposals, that state legislative bodies had

violated many of the most valuable articles in bills of rights.  But

that furnished no basis for judging the effectiveness of the proposed

amendments:



If they are incorporated into the Constitution, independent tribunals of

justice will consider themselves in a peculiar manner the guardians of

those rights; they will be an impenetrable bulwark against every

assumption of power in the Legislative or [367 U.S. 272] Executive; they

will be naturally led to resist every encroachment upon rights expressly

stipulated for in the Constitution by the declaration of rights.



This statement by Madison, along with all the rest of his speech, is so

devastating to the "balance theory" that efforts have been and are being

made to discredit its authenticity.  The Annals of Congress, it is said,

is not an official document, but a compilation of stenographic reports

(by a shorthand reporter admitted to the floor for that purpose)

published in the press and containing numerous errors.  That is true,

although the chief complaint was that partially caught sentences were

meaningless.  In general, that which was clearly reported was truly

reported.  In the case of this all-important speech, Madison spoke from

notes, and the notes in his handwriting are in the Library of Congress. 

They parallel the speech from end to end, scantily, but leaving no doubt

of the fundamental faithfulness of the report. The Madison Heritage, 35

N.Y.U.L.Rev. 882, 899-900.



Brant goes on to relate how Madison opposed a resolution of censure

against societies creating the political turmoil that was behind the

Whiskey Rebellion.  Id. p. 900.  He expressed in the House the view that

opinions are not objects of legislation. If we advert to the nature of

Republican Government, we shall find that the censorial power is in the

people over the Government, and not in the Government over the people.

Id. p. 900.



The trend of history, as Jefferson noted, has been against the rights of

man.  He wrote that "The natural progress of things is for liberty to

yield and government to gain ground."  The formula he prepared for a

society where ideas flourished was not punishment of the unorthodox [367

U.S. 273] but education and enlightenment of the masses.  Jefferson

wrote to Madison on December 20, 1787: I own I am not a friend to a very

energetic government.  It is always oppressive.  It places the governors

indeed more at their ease, at the expense of the people.  The late

rebellion in Massachusetts has given more alarm than I think it should

have done.  Calculate that one rebellion in thirteen States in the

course of eleven years, is but one for each State in a century and a

half.  No country should be so long without one.  Nor will any degree of

power in the hands of government prevent insurrections.  In England,

where the hand of power is heavier than with us, there are seldom half a

dozen years without an insurrection.  In France, where it is still

heavier, but less despotic, as Montesquieu supposes, than in some other

countries, and where there are always two or three hundred thousand men

ready to crush insurrections, there have been three in the course of the

three years I have been here, in every one of which greater numbers were

engaged than in Massachusetts, and a great deal more blood was spilt. 

In Turkey, where the sole nod of the despot is death, insurrections are

the events of every day.  Compare again the ferocious depredations of

their insurgents, with the order, the moderation and the almost

self-extinguishment of ours.  And say, finally, whether peace is best

preserved by giving energy to the government, or information to the

people.  This last is the most certain, and the most legitimate engine

of government.  Educate and inform the whole mass of the people.  Enable

them to see that it is their [367 U.S. 274] interest to preserve peace

and order, and they will preserve them.  And it requires no very high

degree of education to convince them of this.  They are the only sure

reliance for the preservation of our liberty. This is the only

philosophy consistent with the First Amendment.  When belief in an idea

is punished as it is today, we sacrifice those ideals and substitute an

alien, totalitarian philosophy in their stead. [367 U.S. 275]



"The most indifferent arguments," Bismarck said, "are good when one has

a majority of bayonets."  That is also true when one has the votes.



What we lose by majority vote today may be reclaimed at a future time

when the fear of advocacy, dissent, and nonconformity no longer cast a

shadow over us. APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS



The constitutions of 15 States have, at one time or another, made

specific provision for the right of revolution by reserving to the

people the right to "alter, reform or abolish" the existing frame of

government.  See Pennsylvania Const. of 1873, Art. I,  2; Maryland

Const. of 1867, Dec. of Rights, Art. I; Virginia Const. of 1902, Art. I,

 3; Alabama Const. of 1865, Art. I,  2; Arkansas Const. of 1874, Art.

II,  1; Idaho Const. of 1889, Art. I,  2; Kansas Const. of 1858, Art. I,

 2; Kentucky Const. of 1890, Bill of Rights,  4; Ohio Const. of 1851,

Art. I,  2; Oregon Const. of 1857, Art. I,  1; Tennessee Const. of 1870,

Art. I,  1; Texas Const. of 1876, Art. I,  2; Vermont Const. of 1793, c.

1, Art. 7; West Virginia Const. of 1872, Art. 3,  3; Wyoming Const. of

1889, Art. I,  1.  Some 24 other States have, or have had, slightly

varying forms of the same provision.  See New Hampshire Const., Pt. I,

Art. 10; Massachusetts Const., [367 U.S. 276] Part the First, Article

VII; Connecticut Const., Article First,  2; New Jersey Const., Art. I, 

2; Delaware Const., Preamble; North Carolina Const., Art. I,  3; South

Carolina Const., Art. 1,  1; Rhode Island Const., Art. I,  1; California

Const., Art. I,  2; Colorado Const., Art. II,  2; Florida Const., Dec.

of Rights,  2; Indiana Const., Art. I,  1; Iowa Const., Art. I,  2;

Maine Const., Art. I,  2; Michigan Const. of 1835, Art. I,  2; Minnesota

Const., Art. I,  1; Mississippi Const., Art. 3,  6; Missouri Const.,

Art. I,  3; Montana Const., Art. III,  2; Nevada Const., Art. I,  2;

North Dakota Const., Art. I,  2; Oklahoma Const., Art. II,  1; South

Dakota Const., Art. VI,  26; Utah Const., Art. I,  2.  The older

constitutions often add a clause which shows the roots of these

provisions in the right of revolution. The doctrine of nonresistance

against arbitrary power and oppression is absurd, slavish, and

destructive of the good and happiness of mankind, the New Hampshire

Const., Pt. I, Art. 10, recites.  The same language may be found in

Maryland Const., Dec. of Rights, Art. 6; Tennessee Const., Art. I,  2.



These provisions have been considered by several state courts.  It has

been held that the general right of the people to alter or abolish the

government does not deprive state courts from passing on the validity of

constitutional amendments peacefully passed.  Wells v. Bain, 75 Pa. St.

39, 46-49; Koehler & Lange v. Hill, 60 Iowa 543, 614-617, 15 N.W.

614-616; Bennett v. Jackson, 186 Ind. 533, 538-541, 116 N.E. 921,

922-923; Erwin v. Nolan, 280 Mo. 401, 406-407, 217 S.W. 837, 838-839. 

More recently, several state courts have had occasion to consider these

provisions in connection with the persecution of Communists.  See

Commonwealth v. Widovich, 295 Pa. 311, 317-318, 145 A. 295, 297-298

(State Sedition Act); Nelson v. Wyman, 99 N.H. 33, 50-51, 105 A.2d 756,

770-771 (legislative investigation); Braverman v. [367 U.S. 277] Bar

Assn. of Balto., 209 Md. 328, 346-347, 121 A.2d 473, 481-482 (disbarment

of a lawyer convicted under the Smith Act).  The last two of these

decisions relied on language in the decision of this Court in Dennis v.

United States, 341 U.S. 494, 501: Whatever theoretical merit there may

be to the argument that there is a "right" to rebellion against

dictatorial governments is without force where the existing structure of

the government provides for peaceful and orderly change.



Yet the right of revolution has always meant more than this.  "The words

. . . ," said the court in Wells v. Bain, supra, 47, embrace but three

known recognised modes by which the whole people, the state, can give

their consent to an alteration of an existing lawful frame of

government, viz.:



1. The mode provided in the existing constitution.



2. A law, as the instrumental process of raising the body for revision

and conveying to it the powers of the people.



3. A revolution.



The first two are peaceful means through which the consent of the people

to alteration is obtained, and by which the existing government consents

to be displaced without revolution.  The government gives its consent,

either by pursuing the mode provided in the constitution or by passing a

law to call a convention.  If consent be not so given by the existing

government, the remedy of the people is in the third mode -- revolution.



This does not mean the helplessness of the established government in the

face of armed resistance, for that government has the duty of

maintaining existing institutions.  Wells v. Bain, supra, 49.  But it

does mean that the right of revolution is ultimately reserved to the

people themselves, whatever formal, but useless, remedies the existing

government may offer.  This is shown in the history of our own

revolution.  Legislatures and governments have [367 U.S. 278] the right

to protect themselves.  They may judge as to the appropriate means of

meeting force directed against them, but, as to the propriety of the

exercise of the ultimate right of revolution, there, as John Locke says,

"The people shall be judge."  Second Treatise on Civil Government,  240.

 To forbid the teaching of the propriety of revolution, even where the

teacher believes his own lesson, is to hinder the people in the free

exercise of this great sovereign right.  See Dennis v. United States,

341 U.S. 494, (dissenting opinion).



Lincoln's full statement, made in 1848 and already referred to, reads:

Any people anywhere, being inclined and having the power, have the right

to rise up, and shake off the existing government, and form a new one

that suits them better.  This is a most valuable -- a most sacred right

-- a right, which we hope and believe, is to liberate the world.  Nor is

this right confined to cases in which the whole people of an existing

government may choose to exercise it.  Any portion of such people that

can, may revolutionize, and make their own, of so much of the teritory

[sic] as they inhabit.  More than this, a majority of any portion of

such people may revolutionize, putting down a minority, intermingled

with, or near about them, who may oppose their movement.  Such minority

was precisely the case of the tories of our own revolution.  It is a

quality of revolutions not to go by old lines, or old laws, but to break

up both, and make new ones. I Basler, The Collected Works of Abraham

Lincoln (1953), pp.438-439. BRENNAN, J., dissenting



MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS

join, dissenting.



I think that, in  4(f) of the Internal Security Act, Congress legislated

immunity from prosecution under the [367 U.S. 279] membership clause of

the Smith Act.  The first sentence of  4(f) is: Neither the holding of

office nor membership in any Communist organization by any person shall

constitute per se a violation of subsection (a) or subsection (c) of

this section or of any other criminal statute. The immunity granted by

that sentence is not, in my view, restricted, as the Court holds, to

mere membership, that is, to membership which is nominal, passive or

theoretical.  The immunity also extends to "active and purposive

membership, purposive that is as to the organization's criminal ends,"

which is the character of membership to which the Court today restricts

the application of the membership clause of the Smith Act.



In its approach to the relation of the first sentence of  4(f) to the

membership clause of the Smith Act, I think the Court asks the wrong

question.  The question is not whether the Congress meant in  4(f) to

"repeal" the membership clause of the Smith Act.  The "repeal" of a

statute connotes its erasure from the statute books.  The grant of

immunity from prosecution under a criminal statute merely suspends

prosecution under the statute so long as the immunity is not withdrawn. 

For example, when we recently decided in Reina v. United States, 364

U.S. 507, that the Narcotic Control Act of 1956 legislated immunity from

prosecution under state, as well as federal, narcotics laws, our

decision did not remotely suggest that the immunity effected the

"repeal" of either the state or the federal criminal statutes.



The Congress was faced with a dilemma in legislating the policy of

compulsory registration of Communists into the Internal Security Act. 

This statute represented, in the words of the late John W. Davis, a

policy of "ventilation, rather than prohibition."  Communists were to be

forced to expose themselves to public view in order that the menace they

present might be dealt with more effectively.  The registration

provisions of the Act are the [367 U.S. 280] very vitals of that

measure.  But compulsory disclosure of membership would compel admission

of a crime, or provide a link to proof of a crime.  Communists then

could invoke their constitutional right to silence and the registration

provisions would be wrecked on the rock of the Self-Incrimination Clause

of the Fifth Amendment.  It is no disparagement of the Congress to say

that their deliberations reflect great uncertainty how to resolve the

dilemma.  Congress wrote the Internal Security Act knowing that the

privilege against self-incrimination was a solid barrier against

compulsory self-incrimination by congressional fiat.  The legislative

history of  4(f) is murky, but I think there clearly emerges a

congressional decision to extend immunity from prosecution for any

membership in a Communist organization in order to safeguard against

constitutional frustration the policy of disclosure embodied in the

registration provisions. [367 U.S. 281]



The purpose of the first sentence of  4(f) seems clear in the setting of

the Act.  In  2 Congress describes the Communist Party as a group bent

on overthrowing the Government by force and violence, such as is

described in the Smith Act, and establishing a totalitarian dictatorship

in the United States.  Section 4(a) makes it a crime to conspire to that

end.  Sections 7 and 8 provide for compulsory registration of Communist

organizations and members.  Penalties for not registering are imposed. 

If members were required to register under the 1950 Act and if

membership were a crime under the 1940 Act, then self-incrimination in

violation of the Fifth Amendment might be required by the registration

requirements of the 1950 Act.  Plainly it was with that problem that

Congress dealt in  4(f).



The bills introduced in the Eighty-first Congress provided for

compulsory registration of members of the Communist Party, but afforded

no immunity for registering.  When the House Committee reported out its

bill, a provision [367 U.S. 282] was included which forbade receipt in

evidence of the fact of registration under the Internal Security Act. 

When the bill reached the floor, Congressman Celler pointed out that the

immunity provision was constitutionally insufficient.  In the first

place, that bill only provided that the fact of registration under the

Act should not be received in evidence against the registrant in

prosecutions under the Act.  Congressman Celler pointed out that there

were other criminal statutes, including the Smith Act, for which no

immunity was granted.  He secondly pointed out that the immunity to be

constitutionally protective must be complete, and he discussed

Counselman v. Hitchcock, 142 U.S. 547, in support of that thesis. 

During these debates and in response to the challenge made by

Congressman Celler, the manager of the bill, Congressman Wood, offered

an amendment extending the same protection against prosecutions "for any

alleged violation of any other criminal statute."  It was adopted

without discussion and the bill passed the House.



At that juncture, it seems obvious that restricting the immunity to use

of the fact of registration in any criminal prosecution did not satisfy

the constitutional requirements.  Such a limited immunity was granted by

statute in Counselman v. Hitchcock, supra.  Yet, as the Court stated in

that case, p. 564: This, of course, protected him against the use of his

testimony against him or his property in any prosecution against him or

his property, in any criminal proceeding, in a court of the United

States.  But it had only that effect.  It could not, and would not,

prevent the use of his testimony to search out other testimony to be

used in evidence against him or his [367 U.S. 283] property, in a

criminal proceeding in such court.  It could not prevent the obtaining

and the use of witnesses and evidence which should be attributable

directly to the testimony he might give under compulsion, and on which

he might be convicted, when otherwise, and if he had refused to answer,

he could not possibly have been convicted.



Meanwhile, the Senate bill was reported out.  The late John W. Davis had

stated in a letter to the Senate Committee that compulsory registration

might make a member "involuntarily incriminate himself."  The Senate

bill accordingly provided that neither holding office nor membership in

the Communist Party should constitute a violation of certain provisions

of the bill, and it also provided that the fact of registration should

not be received in evidence against the registrant in prosecutions under

those provisions.  Senator Kilgore, in a minority report, made the same

point that Congressman Celler had made in the House -- that this

immunity provision did not even purport to avoid self-incrimination in

relation to the membership clause of the Smith Act, and did not provide

that complete immunity which Counselman v. Hitchcock, supra, held

essential.



Senator Lehman spoke to the same effect when the bill reached the

floor:{10} "In support of the statement made by the Senator from

Illinois that the real Communists would simply fail to register, and

could not be forced to register, and would be outside the control of the

law enforcement officials, is it not a fact that there would be every

reason why a real Communist should not register [367 U.S. 284] --

because if he did register, would not he make himself liable to

incrimination under the Smith Act?"



Mr. DOUGLAS.  "Certainly."



Mr. LEHMAN.  "So he would be virtually pleading guilty of a penal

offense; would he not?"



Mr. DOUGLAS.  "Yes; the real leaders would be."



Senator Lehman stated on another day of the debate:{11} What "dyed in

the wool" Communist will run to the nearest registration office to list

himself as such and expose himself to the penalties contained in the

Mundt-Ferguson bill?  Obviously, if he did, he would lose all his

effectiveness as a Communist, besides subjecting himself to the

penalties set forth in this bill.  He would also expose himself to the

penalties set forth in other laws, such as the Smith Act, under which

the 11 top Communist leaders were recently convicted.  In fact,

registration would constitute self-incrimination, if not under the terms

of this law, then under the terms of the Smith Act. Obviously, the

Communists would not register.



Senator Humphrey voiced the same objection:{12} . . . his registration

would be equivalent to testimony, and under the interpretation of very

prominent attorneys,{13} it could be that he could be prosecuted under

the Smith Act.



The answers to these objections were wide of the mark.  Senator McCarran

said that the registrant was immunized [367 U.S. 285] from prosecutions

under  4 of the bill.{14}  The relevancy of the Smith Act was not

recognized.  Senator Ferguson and Senator Mundt likewise did not meet

the point.  They noted{15} that membership was held irrelevant to the

Smith Act in the prosecution of Dennis v. United States, supra,

overlooking the fact that that case involved not membership, but a

conspiracy to practice the Communist dogma.



But no change in the bill was made in this respect before it passed the

Senate.  The important changes in  4(f) -- the ones that are critical

here -- took place in Conferences.{16}  No contemporary statement of the

intended sweep of the revised  4(f) is in the legislative record.  But I

have set out enough history to indicate that the motivation was clearly

the fear that the immunity granted under the earlier versions of the

bill was not constitutionally sufficient to compel registration, since

it [367 U.S. 286] did not extend to prosecutions under the membership

clause of the Smith Act.



When the bill came back from the Conference Committee, Congressman

Multer referred to  4(f) in its new form and predicted it would "vitiate

one of the most important parts of the Smith law."{17}  No reply was

made to his comments.  And only brief reference was made to  4(f) in the

Senate.  Senator Kefauver said,{18} There is nothing in the bill which

provides that, when a person registers that fact shall not be used in

evidence against him in connection with the Smith Act.{19} But that

statement is irrelevant to our problem, because the Senator apparently

did not realize that the bill had been amended in Conference to include

the words "or any other criminal statute."  Senator Kilgore stated that

the Conference bill differed from the one approved by the Judiciary

Committee over his dissent, since it nullified the Smith Act.{20}  No

one challenged the statement.



From this legislative history, it seems tolerably clear that one purpose

of  4(f) was to protect registrants from prosecution under the

membership clause of the Smith Act.



The Court holds, however, that the first sentence of  4(f) is simply a

mandate to the courts charged with the construction of subsections (a)

and (c) "or . . . any other criminal statute" that neither those two

named criminal provisions nor any other shall be construed so as to make

"membership . . . per se a violation." If the phraseology were that

immunity is extended only to "membership per se," there might be support

for the argument that the immunity granted by  4(f) extends only [367

U.S. 287] to nominal membership, excluding the type of active membership

which we have here.  But the statute does not say "membership per se." 

It provides that [n]either the holding of office nor membership in any

Communist organization shall constitute per se a violation of subsection

(a) or subsection (c) of this section or of any other criminal statute.

The kind of membership given immunity is not restricted.  It may be

nominal, short-term, long-term, dues-paying, non-dues-paying, inactive,

or active membership.  Every type of membership is included.  What the

Congress is saying is that no type of membership shall violate alone or

by itself (that is to say, per se) any criminal statute.  When Congress

said that membership "shall not constitute per se" a violation of any

criminal statute, it meant that additional conduct besides membership,

whatever its nature, is necessary to constitute a violation.  Only by

transposing "per se" in  4(f) and making it modify "membership" can the

Court's argument be made plausible.  That entails a substantial revision

of the Act and a drastic dilution of rights of immunity which have been

granted by it.



If the Court is correct in its view, the constitutionality of

registration provisions of the 1950 Act are called into question.  True,

today's decision in Communist Party of America v. Subversive Activities

Control Board, ante p. 1, puts off to another day the constitutionality

of the registration provisions in their conflict with the Fifth

Amendment; I have noted my dissent as to the provision of the

registration requirements that designated officials of the Party must

complete, sign, and file the Party's registration statement.  But if

"active membership" remains a crime under the Smith Act, there would be

a serious question whether any Communist -- active or nominal -- could

constitutionally be compelled to register under the 1950 Act.  For it

could be urged that the act of registering [367 U.S. 288] would supply

one link that might complete the chain of evidence against him under the

Smith Act.  It is no answer to that contention that mere membership

would not support a conviction.  As we said in Blau v. United States,

340 U.S. 159, 161: Whether such admissions by themselves would support a

conviction under a criminal statute is immaterial.  Answers to the

questions asked by the grand jury would have furnished a link in the

chain of evidence needed in a prosecution of petitioner for violation of

(or conspiracy to violate) the Smith Act. Prior decisions of this Court

have clearly established that, under such circumstances, the

Constitution gives a witness the privilege of remaining silent.  The

attempt by the courts below to compel petitioner to testify runs counter

to the Fifth Amendment as it has been interpreted from the beginning.

This principle had been an established one ever since Counselman v.

Hitchcock, supra, was decided.



The registration provisions of the 1950 Act were the very heart of that

law.  Disclosure of who the Communists were was the provision from which

all other controls stemmed.  As the Senate Report stated,{21} the

registration requirement is the "central provision" of the Act, the

purpose being (a) to expose the Communist movement and protect the

public against innocent and unwitting collaboration with it; (b) to

expose, and protect the public against, certain acts which are declared

unlawful.



A fair and literal reading of  4(f) can save the 1950 Act against this

Fifth Amendment objection.  By reading  4(f) to provide that being a

member of the Communist Party shall not "constitute per se" a crime,

immunity from prosecution under the membership clause of the [367 U.S.

289] Smith Act is effected.  And that is in full harmony with the

purpose to make something more than "membership" necessary for

conviction.  That something more can be some kind of unlawful activity. 

After the 1950 Act was passed, membership without other activity was no

longer sufficient for Smith Act prosecutions.  That seems to me to be

the only fair way to read  4(f).  That conclusion necessarily requires a

dismissal of this indictment. Footnotes HARLAN, J., lead opinion

(Footnotes)



1. Section 2385 (whose membership clause we place in italics) reads:



Whoever knowingly or willfully advocates, abets, advises, or teaches the

duty, necessity, desirability, or propriety of overthrowing or

destroying the government of the United States or the government of any

State, Territory, District or Possession thereof, or the government of

any political subdivision therein, by force or violence, or by the

assassination of any officer of any such government; or



Whoever, with intent to cause the overthrow or destruction of any such

government, prints, publishes, edits, issues, circulates, sells,

distributes, or publicly displays any written or printed matter

advocating, advising, or teaching the duty, necessity, desirability, or

propriety of overthrowing or destroying any government in the United

States by force or violence, or attempts to do so; or



Whoever organizes or helps or attempts to organize any society, group,

or assembly of persons who teach, advocate, or encourage the overthrow

or destruction of any such government by force or violence; or becomes

or is a member of, or affiliates with, any such society, group, or

assembly of persons, knowing the purposes thereof --



Shall be fined not more than $20,000 or imprisoned not more than twenty

years, or both, and shall be ineligible for employment by the United

States or any department or agency thereof, for the five years next

following his conviction.



If two or more persons conspire to commit any offense named in this

section, each shall be fined not more than $20,000 or imprisoned not

more than twenty years, or both, and shall be ineligible for employment

by the United States or any department or agency thereof, for the five

years next following his conviction.



2. Petitioner was first convicted before a jury in the Middle District

of North Carolina in 1955.  The conviction was upheld by the Court of

Appeals, 227 F.2d 581, and we granted certiorari at the 1955 Term.  350

U.S. 992.  The case was first heard here at the 1956 Term, and was later

set for reargument at the 1957 Term.  Before reargument, the judgment of

conviction was reversed upon the Solicitor General's concession that

this Court's intervening decision in Jencks v. United States, 353 U.S.

657, in any event, entitled Scales to a new trial.  Scales was retried,

and again convicted in 1958.  The Court of Appeals again affirmed, 260

F.2d 21, and we again brought the case here.  358 U.S. 917.  Argument on

the present writ was first heard at the 1958 Term, the case being set

for reargument at the following Term under an order in which the Court

propounded certain questions to which counsel were requested

particularly to address themselves.  360 U.S. 924.  Before reargument

was had, certiorari was granted (361 U.S. 951) in Communist Party v.

Subversive Activities Control Board (No. 12, decided today, ante p. 1),

certain of the statutory and constitutional issues in which were closely

related to some of those in the Scales case.  Because of this

interrelation of the two cases, the Court deemed it advisable that they

should be heard and considered together, and accordingly put over this

case for argument with the Communist Party case at the present Term. 

361 U.S. 952.



3. E.g., 18 U.S.C.  2385 (the remaining provisions of the Smith Act); 29

U.S.C.  159(h), repealed by the Labor-Management Reporting and

Disclosure Act of 1959, 73 Stat. 519,  201(d) (non-Communist affidavits

to be filed by union officers); or any of the offenses created by the

Internal Security Act of 1950, for instance, under  4, 5 or 6.



4. The report also stated: Nowhere does the bill restrict or impair the

constitutional privilege against self-incrimination under the fifth

amendment. . . .  As to whether any registration itself infringes upon

the privilege of self-incrimination, . . . [w]ith respect to individual

members, a person may be compelled to register, keep records, make

reports or statements, etc., concerning any activity which the State

properly may regulate, and he is not protected therefrom by the

privilege. . . .  This becomes purely academic, however, in the light of

the specific bar to self-incrimination written into section 4(f). Id. at

pp. 20-21.



5. Senator Lehman, arguing that the bill required self-incrimination,

stated:



We already have on the statute books more than 20 laws to control and

penalize subversive activities. . . .  We also have the Smith Act,

recently upheld by the Court of Appeals, which makes membership in the

Communist Party prima facie evidence of criminal intent. . . .



. . .  [R]egistration would constitute self-incrimination, if not under

the terms of this law, then under the terms of the Smith Act. 96

Cong.Rec. 14190.



As the debate continued, Senator Long said:



I was under the impression from hearing the Senator from New York

yesterday that he said that, under a previous statute, it was unlawful

to belong to an organization that advocated the overthrow of the United

States government by force . . . , that there was a previous act . . .

which made it unlawful for one to be a member of [such] an organization.

. . . *    *    *    *



Senator Ferguson.  Is it not true that Judge Medina, in his charge to

the jury in the trial of the 11 Communists, told them that mere

membership in the Communist Party was not sufficient to warrant the jury

in convicting them under the Smith Act?  [The petitioner in the present

case correctly notes that this reference was to the Dennis case

involving an indictment for conspiracy to advocate, not the membership

clause of the Smith Act.]



Mr. Mundt [who was one of the proponents of the original bill]. 

Precisely.



Mr. Ferguson.  So that it could not apply to that law.



Mr. Mundt.  It could not conceivably apply. . . .  [I]t would still be

an incorrect interpretation of the [Smith] Act. . . . 96 Cong.Rec.

14235.



Senator McCarran, whose name the new omnibus Senate measure bore, stated

in connection with the Smith Act: It was arresting to hear the Senator

from New York declare on Tuesday that "[t]he Smith Act . . . makes

membership in the Communist Party prima facie evidence of criminal

intent."



. . .  [O]f course, the statement about the Smith Act making membership

in the Communist Party prima facie evidence of criminal intent simply

has no foundation in fact.



. . .  Of course, in order to make a statement like the one he made, a

man must not have read Judge Medina's scholarly charge to the jury, in

which he specifically pointed out that the Communist membership or

affiliation of the 11 defendants was not . . . a part of the charged

offense. . . . *    *    *    *



Mr. President, subsection 4(f) provides as follows:  "neither the

holding of office nor membership . . . shall constitute a violation of

subsection (a). . . ."



. . .  I hope the Senator from New York may find time to read [the

section as a whole], and then I hope he may see fit to tell the Senate

whether he still thinks Communists, as such, would obviously be

indictable and subject to imprisonment under section 4(a). 96 Cong.Rec.

14442-14443.  (Emphasis supplied.)



6. Perhaps the closest we come to any suggestion that  4(f) repeals, pro

tanto, the Smith Act is the statement by Representative Multer of New

York, an opponent of the measure, during the debate on the final version

of the bill: Another very bad provision in this bill is the new -- to

this House -- first sentence [of  4(f)]. . . .



I venture to predict that, if this bill becomes law, you not only

vitiate one of the most important parts of the Smith law, but you will

give a new argument and defense to the 11 Communists recently convicted

in the Federal court in New York of crimes against the United States, as

proscribed in the Smith law, 96 Cong.Rec. 15289, or a similar argument

against the bill by Senator Kilgore, 96 Cong.Rec. 15192.



7. Petitioner makes reference to the legislative history of an amendment

to the Communist Control Act of 1954, S. 3706, 83d Cong., 2d Sess.,

introduced and passed with modifications in a hurried and confused

debate in both Houses.  The amendment, proposed by Senator Humphrey,

provided that it would be criminal knowingly and willfully to become or

remain a member of the Communist Party, or any other organization whose

purpose is to overthrow the government by force and violence.  The

amendment was opposed by the proponents of the Internal Security Act of

1950, among others, on the grounds that it would impair the

effectiveness of  4(f) of the 1950 Act, possibly rendering the

registration provisions of that Act unconstitutional.  But it seems

clear that this result was conceived to flow from the fact that the

amendment mentioned the Communist Party by name, thus making

registration tantamount to an admission of the crime itself. As

Representative Halleck, the then majority leader who opposed the

amendment, put it:



. . .  [W]e have the Internal Security Act of 1950, which was worked out

after the most careful consideration . . . , and the Smith Act, under

which we have had more than 100 indictments and sixty-some convictions,

all of Communist leaders. . . .  Those acts we have on the books . . . ;

they have established themselves.



. . .  [T]he Attorney General . . . [s]peaking of the Internal Security

Act . . . said: Essential to the validity of this careful plan, however,

is the provision of section 4(f) of the act. . . .  It is apparent that

the enactment of legislation making membership in the Communist Party

per se a crime would be in direct conflict with these provisions of the

Internal Security Act.  If membership alone is made criminal, to require

him to declare his membership is to require him to give

self-incriminating evidence.  By nullifying this portion of the act, its

entire operation would be jeopardized. . . . In other words, what we are

doing permits outlawing the Communist Party, and maintaining the

Internal Security Act, the Smith Act, and all other acts by which we

deal realistically with the Communist conspiracy. 100 Cong.Rec. 14658.



There is no doubt that the Humphrey amendment is, in many respects,

similar to the membership clause.  But it was assumed by many of.the

proponents of the 1950 Act, perhaps illogically and under a

misapprehension as to the law, that the amendment should be defeated to

preserve the integrity of the 1950 Act and the Smith Act.  Certainly it

was considered by no one that the membership clause had been repealed,

or its application to Communists barred by  4(f) of the 1950 Act.



8. November 18, 1951, to November 18, 1954.  See 18 U.S.C.  3282.



9. "No person shall . . . be deprived of life, liberty or property,

without due process of law. . . ."



10.



Congress shall make no law . . . abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.



11. While the Government undertakes to defend the statute in the absence

of either or both of such elements, its ultimate constitutional position

rests on the presence of both.



12. "In all criminal prosecutions, the accused shall enjoy the right . .

. to be informed of the nature and cause of the accusation. . . ."



13. See note 27, infra.



14. The statute allows a fine of not more than $10,000 and imprisonment

for not more than ten years to be imposed, and makes one convicted under

the statute ineligible for employment by the United States or any

department or agency thereof for five years following conviction. 

Petitioner was sentenced to imprisonment for six years.



15. The element of "activity" in the proscribed membership stands apart

from the ingredient of guilty "knowledge" in that the former may be

shown by a defendant's participation in general Party affairs, whereas

the latter requires linking him with the organization's illegal

activities.



16. But compare Whitney v. California, 274 U.S. 357; Burns v. United

States, 274 U.S. 328, sustaining state convictions under the organizing

and membership provisions of the California Criminal Syndicalism Act.



17. Complicity has been defined thus:



A person is an accomplice of another person in commission of a crime if:



(a) with the purpose of promoting or facilitating the commission of the

crime, he



(1) commanded, requested, encouraged or provoked such other person to

commit it; or



(2) aided, agreed to aid or attempted to aid such other person in

planning or committing it . . . *    *    *    *



(b) acting with knowledge that such other person was committing or had

the purpose of committing the crime, he knowingly, substantially

facilitated its commission. . . . American Law Institute, Model Penal

Code  2.04(3), tentative draft No. 1 (1953).  The formulation restates

the statutory provisions generally found in jurisdictions in the United

States.  See, e.g., 18 U.S.C.  2(a); Ariz.Code Ann., 1939,  43-116;

Vernon's Texas Stat., 1952, Pen.Code, Art. 70; cf. Criminal Code of

Canada, Tremeear's, 1944,  69.  It should be noted that the membership

clause as here construed is more limited than subsection (b) of this

provision, since it is not enough that one has knowingly facilitated the

substantive criminal conduct, but there must also be present the

specific purpose of facilitating it.



There is, of course, considerable overlap between the law of complicity

and the law of conspiracy, and genuine problems arise as to whether a

conspirator is, by reason of his conspiracy, to be considered an

accomplice and therefore guilty also of the substantive offense.  See

ALI, Model Penal Code, tentative draft No. 1 (1953), at pp. 20 33;

Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 922,

993-1000 (1959).  But we are solely concerned here with pointing up the

accepted limits of imputation of guilt, not with exploring the problems

created by the various provisions by which such imputation is effected.



18. The problems in attributing criminal behavior to an abstract entity,

rather than to specified individuals, though perhaps difficult

theoretically, as a practical matter, resolve themselves into problems

of proof.  Whether it has been successfully shown that a particular

group engages in forbidden advocacy must depend on the nature of the

organization, the occasions on which such advocacy took place, the

frequency of such occasions, and the position within the group of the

persons engaging in the advocacy.  (See pp.  infra.)  Understood in this

way, there is no great difference between a charge of being a member in

a group which engages in criminal conduct and being a member of a large

conspiracy, many of whose participants are unknown or not before the

court.  Whatever difficulties might be thought to inhere in ascribing a

course of criminal conduct to an abstract entity are certainly cured, so

far as any particular defendant is concerned, by the requirement of

proof that he knew that the organization engages in criminal advocacy,

and that it was his purpose to further that criminal advocacy.



19. See generally Hart, The Aims of the Criminal Law, 23 Law &

Contemp.Prob. 401 (1958).



20. Compare concurring opinion of Mr. Justice Brandeis in Whitney v.

California, 274 U.S. 357, 372, 373.



21. As both sides appear to agree that the "clear and present danger"

doctrine, as viewed and applied in Dennis, supra, at  also reaches the

membership clause of the Smith Act, and since the petition for

certiorari tenders no issue as to the method of applying it here, we do

not consider either question.



22. That statute gives the Court power upon review to "direct the entry

of such appropriate judgment . . . as may be just under the

circumstances ."



23. Petitioner complains that the evidence as to Party activities

emanating from such witnesses as Lautner, Hartle, Duran, and Jones, was

inadmissible because not tied up with him.  This confuses the nature of

the offense Congress has created, for it is important as a preliminary

matter, without adverting to the particular defendant in the

prosecution, to prove the character of the organization of which he is

charged with being a member.  The other side of petitioner's claim on

this score would entail giving greater or conclusive weight to

petitioner's admissions as to the nature of the Party merely because he

is the defendant in this case.  But that would be as illogical on the

preliminary question as would be excluding evidence not connected up

with petitioner.  The evidence as to Scales' words and deeds is weighty

and strong against the Party only because of his position in the Party,

not because he is the defendant here.



24. As stated by Clontz: Scales said that we could not expect the Soviet

Union to land troops to start our revolution and finish it.



Scales further said that experience had taught the Communists that that

sort of approach was disastrous, . . . that they in China, the

Communists, had sent in Russian generals, and the only result had been

that the Chinese Communists had been licked completely, that the new

approach, of the Soviet Union, was shown in the example of Mao, who was

then Mao-Tse-Tung, who was then the leader in the Communist Chinese

Government.



He pointed out that Mao had never even been to Russia, but instead, the

Soviet Union and the Soviet Communist Party had sent over military

leaders to instruct Mao, and his leaders, and had sent over professional

revolutionaries that could aid them in bringing about their revolution.



He said that we could count on drawing on the experience of the Soviet

Union, and that they also would furnish us when the revolution came with

experienced revolutionaries from Russia.



25. At one point in the course of instructing Clontz, Wilkerson wrote

out the formula "M-L=F&V" which he told Clontz illustrated the position

adopted by the appellate courts in the United States that

Marxist-Leninist teaching equalled force and violence.  Clontz

testified:



Doxey Wilkerson explained to me that, since that formula had been

established, action had had to be taken by the National Party to conceal

the fact that their principles and their goal and their aims and their

doctrines included forceful and violent revolution.  He pointed out, for

example, that an official statement had been issued by the Education

Commission of the Communist Party U.S.A. disowning or disclaiming

certain study outlines, certain texts, certain publications put out by

the Communist Party.



In fact, the order had ordered all Communist Party members to turn those

in, and the statement, he said, after that particular date -- I don't

recall the exact date -- had said henceforth, we will not recognize

these as official Party publications.



He said, by doing that, they accomplished two things.  They, first of

all, established a technicality for Communists on trial and their

attorneys, that the Party no longer accepted Marxism-Leninism, because,

he said, all Marxism-Leninism included in its teachings and in its

concept the basis of a violent revolution.



He said, secondly, that it did not unduly hamper the Communist Party,

that, in the future, many things would be left unsaid that previously

had been said, many things would be left unwritten that previously had

been written, that, for example, in teaching a more bare outline, would

be given, and the instructor would fill in the revolutionary part, or

the students would be sent into the Marxist-Leninist works as references

to find the revolution, without having it spelled out in the outline.



He said, that, naturally, would not change the basic Party goal or the

basic aims of the Communist Party, but that it would make it more

difficult for Communists to be convicted. *    *    *    *



One thing I recall during our discussion, he had given me a pamphlet, a

study outline entitled White Chauvinism, and he pointed out to me, he

said, Now I have been instructing you from that outline, but technically

it is illegal because we Communists have disclaimed it, so that you are

holding an illegal document there, actually.



26. One of Childs' early tasks, assigned him by the District Organizer,

as a Communist Party member was to serve as bodyguard for a visiting

official of the Civil Rights Congress.  The official, accompanied by

Childs and petitioner, spoke in Chapel Hill in February of 1951 on the

Korean War.  His theme, according to Childs, was that the Korean War was

being used by the capitalists as a means of oppressing the Negro people

. . . that the capitalists are sending the Negroes to Korea to fight the

Korean people who are trying to fight for their rights, the same as the

Negro people are in the South. Childs took notes on the speech, and

testified that the official's "exact words" were:



In Korea, they are still called niggers.  Niggers are court-martialed

for refusing to have their men slaughtered.  Lieutenant Gilbert is one

example.  They say that the nigger is yellow.  Yellow, give the niggers

in North Carolina and Georgia rifles and tell them to fight for their

rights.  Yellow, man, you will see fighting like you have never seen

before.



27. The trial court charged:



Moreover, the teaching in the abstract or teaching objectively, that is,

teaching, discussing, explaining, or expounding what is meant by the aim

or purpose of any author, group, or society of overthrowing the

Government by force and violence is not criminal.  For example, study

and discussion by the Communist Party or by any other group in

classrooms, or in study groups, or public or private meetings with the

object of informing the participants or the audience of the aims and

purposes of the doctrines of Marx, Lenin, Stalin, or the Communist Party

is entirely lawful.  Furthermore, without being criminal, the Communist

Part could privately or publicly endeavor to persuade its members that

they should adopt and espouse the belief that the Government of the

United States should be overthrown by force and violence as speedily as

circumstances will permit.  This is no more than advocating an idea, and

advocating an idea is no crime.  Moreover, without transgressing the

Smith Act, the Party might even instruct its members that it would be

for their good and benefit, if this belief or idea were carried into

effect.



All of this is permissible because such utterances are protected by the

First Amendment of the Federal Constitution, guaranteeing freedom of

speech.



However, if the Party went further, and with the intention of

overthrowing the Government by force and violence, it taught, or

advocated a rule or principle of action which both, one, called on its

members to take forcible and concrete action at some advantageous time

thereafter to overthrow the Government by force and violence, and, two,

expressed that call in such written or oral words as would reasonably

and ordinarily be calculated to incite its members to take concrete and

forcible action for such overthrow; then, if the Communist Party did

that, the Party became such a society or group, as was outlawed by the

Smith Act.



To be criminal, the teaching or advocacy, or the call to action just

described need not be for immediate action, that is, for action today,

tomorrow, next month, or next year.  It is criminal, nonetheless, if the

action is to be at an unnamed time in the future, to be fixed by the

circumstances or on signal from the Party.



It is criminal if it is a call upon the members to be ready, or to stand

in readiness for action, or for a summons to action at a favorable, or

opportune time in the future, or as speedily as circumstances will

permit, provided always that the urging of such readiness be by words

which would reasonably and ordinarily be calculated to spur a person to

ready himself for, and to take action towards, the overthrow of the

Government.  But those to whom the advocacy or urging is addressed must

be urged to do something now or in the future, rather than merely to

believe in something.  In other words, the advocacy must be of concrete

action, and not merely a belief in abstract doctrine.  However, the

immediate concrete action urged should be intended to lead towards the

forcible overthrow, and be so understood by those to whom the advocacy

is addressed.



28. Although most of the particularized evidence related to events not

within the limitations period, it was of course open to the jury, under

proper instructions which were given, to infer that such events

reflected the character of Party advocacy during the limitations period.

 Petitioner does not contend to the contrary.



29. The trial court charged:



The defendant admits that he was a member of the Party.  For his

membership to be criminal, however, it is not sufficient that he be

simply a member.  It must be more than a nominal, passive, inactive, or

purely technical membership.  In determining whether he was an active or

inactive member, consider how much of his time and efforts he devoted to

the Party.  To be active he must have devoted all, or a substantial

part, of his time and efforts to the Party. BLACK, J., dissenting

(Footnotes)



1. 18 U.S.C.  2385.



2. 341 U.S. 494.



3. 354 U.S. 298.



4. 50 U.S.C.  783(f).



5. The fact that the Court's rewriting of the statute has, in this case,

narrowed the statute, rather than broadened it does not change this

conclusion.  Petitioner has a right to have the constitutionality of the

statute considered on the basis upon which it was originally written,

for that was the condition of the statute when he violated it.  The

danger of the practice in which the Court is engaging is pointed up by

its decision in the companion case, Communist Party v. Subversive

Activities Control Board, ante p. 1, in which it imposes the burden upon

the members of that Party to guess as to what sections of the Subversive

Activities Control Act will be held unconstitutional.  The difficulty of

that burden is tremendously increased by the decision in this case for

they cannot know how many and what kind of additional requirements will

be found to be "implied" and placed into the "balance" by which the

constitutionality of questionable provisions of that Act will be

determined.



6. Cohen v. Hurley, 366 U.S. 117, 131 (dissenting opinion).  See also

Konigsberg v. State Bar of California, 366 U.S. 36, 56 (dissenting

opinion).



7. Konigsberg v. State Bar of California, 366 U.S. 36, 51.  See also

Uphaus v. Wyman, 360 U.S. 72; Barenblatt v. United States, 360 U.S. 109;

Uphaus v. Wyman, 364 U.S. 388; Willinson v. United States, 365 U.S. 399;

Braden v. United States, 365 U.S. 431; In re Anastaplo, 366 U.S. 82.  In

each of these cases, I disagreed, as I still do, with the majority's

characterization of the abridgment involved as "incidental," as I

understand that term to have significance in First Amendment cases.  See

particularly my dissenting opinion in the Konigsberg case, supra, at

68-71.



8. The decisions in both of the cases upon which the Court here relies

were rested on the "balancing test."  See Dennis v. United States,

supra, at  Yates v. United States, supra, at 321. DOUGLAS, J.,

dissenting (Footnotes)



1. Following the Equator (1903), Vol. I, p. 198.



2. The prototype of the present prosecution is found in Communist lands.

 The Communist Government in Czechoslovakia on October 6, 1948,

promulgated a law,  3 of which provided:



(1) Whoever publicly or before several people instigates against the

Republic, against its independence, constitutional unity, territorial

integrity or its people's democratic system [of government], its social

or economic order, or against its national character as guaranteed by

the Constitution, shall be punished for a minor crime by rigorous

confinement for from three months to three years.



(2) The following shall be punished in like manner:  whoever

intentionally or through gross negligence makes the dissemination of the

instigative statement specified in Subsection 1 possible or easy.



3. N.Y.L.Doc., 143d Sess., 1920, Vol. 5, No. 30, p. 4.



4. When honest men are impelled to withdraw their allegiance to the

established law or custom of the community, still more when they are

persuaded that such law or custom is too iniquitous to be longer

tolerated, they seek for some principle more generally valid, some "law"

of higher authority, than the established law or custom of the

community.  To this higher law or more generally valid principle they

then appeal in justification of actions which the community condemns as

immoral or criminal.  They formulate the law or principle in such a way

that it is, or seems to them to be, rationally defensible.  To them, it

is "true" because it brings their actions into harmony with a rightly

ordered universe, and enables them to think of themselves as having

chosen the nobler part, as having withdrawn from a corrupt world in

order to serve God or Humanity or a force that makes for the highest

good. Becker, The Declaration of Independence (1942), pp. 277-278.



5. See the Appendix to this opinion, post,



6. 7 The Writings of Thomas Jefferson (Memorial ed.1903) p. 37.



7. 6 The Writings of Thomas Jefferson (Memorial ed.1903) pp. 391-392.



8. Gellhorn, American Rights (1960), in commenting on Dennis v. United

States, 341 U.S. 494, and Yates v. United States, 354 U.S. 298, states:



The aftermath of the Yates case is interesting.  By the end of 1956,

convictions of Communist leaders under the Smith Act had numbered 114. 

Many of these cases were still pending in the appellate courts when the

Yates decision was announced in June of 1957.  On one ground or another,

convictions were set aside and new trials were granted to many of these

defendants.  The Department of Justice itself dropped the prosecution of

a considerable number, on the ground that they could not properly be

convicted on the basis of the evidence now available.  Most

significantly of all, the cases against the nine remaining defendants in

Yates, as to whom the Supreme Court had refused to dismiss the charges,

were abandoned by the prosecution because there was insufficient

evidence that they had advocated action, as distinct from opinion. 

After all the clamor, after all the expressed alarm about the peril into

which the United States was being plunged by this handful of misguided

fanatics, the prosecution felt itself unable to show persuasively that

the Communist spokesmen had engaged in the forbidden incitements to

illegality



This should stimulate a sober second look at the surface attractions of

programs of suppression and coercion.  Occasionally the supporters of

these programs are scoundrels who falsely parade themselves as upholders

of democracy; but more often they are good and sincere men.  Men

genuinely devoted to worthy ends sometimes endorse efforts to force

unanimity of sentiment not because they consciously espouse

authoritarianism, but because they hope thus to assure maximum support

for the nation and its people.  No matter how well intentioned they may

be, however, those efforts themselves create a graver danger than they

overcome.  The perils sought to be suppressed are regularly

overestimated.  History shows in one example after another how excessive

have been the fears of earlier generations, who shuddered at menaces

that, with the benefit of hindsight, we now know were mere shadows. 

This, in itself, should induce the modern generation to view with

prudent skepticism the recurrent alarms about the fatal potentialities

of dissent.  In any event, in a world torn between the merits of freedom

and the blandishments of totalitarian power, the lovers of freedom

cannot afford to sacrifice their moral superiority by adopting

totalitarian methods in order to create a self-deluding sense of

security.  Suppression, once accepted as a way of life, is likely to

spread.  It reinforces the herd urge toward orthodoxies of all kinds --

religious, economic, and moral as well as political. Pp. 82-83. BRENNAN,

J., dissenting (Footnotes)



1. Senator McCarran, the floor manager of the bill in the Senate, spoke

of the exposure of Communists as one of the "principal objectives" of

the bill. 96 Cong.Rec. 14174.



The other principal objective was the definition of certain conduct as

criminal, it being the sense of Congress that existing provisions to

preserve the security of the Nation were inadequate (H.R.Rep. No. 2980,

81st Cong., 2d Sess., p. 2; S.Rep. No. 1358, 81st Cong., 2d Sess., p. 7;

96 Cong.Rec. 14174-14175) and not effective to combat the threat of

subversion from within.  The criminal provisions of the Internal

Security Act are broad and comprehensive.  Section 4(a) prohibits

conspiracy to perform any act which would substantially contribute to

the establis