Yates v. United States

No. 6

Argued October 8-9, 1956

Decided June 17, 1957 *

354 U.S. 298

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus



The 14 petitioners, leaders of the Communist Party in California, were

indicted in 1951 in a Federal District Court under  3 of the Smith Act

and 18 U.S.C.  371 for conspiring (1) to advocate and teach the duty and

necessity of overthrowing the Government of the United States by force

and violence, and (2) to organize, as the Communist Party of the United

States, a society of persons who so advocate and teach, all with the

intent of causing the overthrow of the Government by force and violence

as speedily as circumstances would permit.  The indictment charged that

the conspiracy originated in 1940 and continued down to the date of the

indictment, and that, in carrying it out, petitioners and their

coconspirators would (a) become members and officers of the Communist

Party, with knowledge of its unlawful purposes, and assume leadership in

carrying out its policies and activities, (b) cause to be organized

units of the Party in California and elsewhere, (c) write and publish

articles on such advocacy and teaching, (d) conduct schools for the

indoctrination of Party members in such advocacy and teaching, and (e)

recruit new Party members, particularly from among persons employed in

the key industries of the Nation.  It also alleged 23 overt acts in

furtherance of the conspiracy.  Petitioners were convicted after a jury

trial, and their convictions were sustained by the Court of Appeals.



Held:  The convictions are reversed, and the cause is remanded to the

District Court with directions to enter judgments of acquittal as to

five of the petitioners and to grant a new trial as to the others.



1. Since the Communist Party came into being in 1945, and the indictment

was not returned until 1951, the three-year statute of limitations had

run on the "organizing" charge, and required the withdrawal of that part

of the indictment from the jury's consideration.   [354 U.S. 299]



(a) Applying the rule that criminal statutes are to be construed

strictly, the word "organize," as used in the Smith Act, is construed as

referring only to acts entering into the creation of a new organization,

and not to acts thereafter performed in carrying on its activities, even

though the latter may loosely be termed "organizational."  Pp. 303-311.



(b) The trial court's mistaken construction of the word "organize" was

not harmless error; the circumstances are such as to call for

application of the rule which requires a verdict to be set aside where

it is supportable on one ground, but not another, and it is impossible

to tell which ground the jury selected.



2. The Smith Act does not prohibit advocacy and teaching of forcible

overthrow of the Government as an abstract principle, divorced from any

effort to instigate action to that end; the trial court's charge to the

jury furnished wholly inadequate guidance on this central point in the

case, and the conviction cannot be allowed to stand.  Dennis v. United

States, 341 U.S. 494, distinguished.



3. The evidence against five of the petitioners is so clearly

insufficient that their acquittal should be ordered, but that as to the

others is such as not to justify closing the way to their retrial.



4. Determinations favorable to petitioner Schneiderman made by this

Court in Schneiderman v. United States, 320 U.S. 118, a denaturalization

proceeding in which he was the prevailing party, are not conclusive in

this proceeding under the doctrine of collateral estoppel, and he is not

entitled to a judgment of acquittal on that ground.  Federal Trade

Commission v. Cement Institute, 333 U.S. 683.



225 F.2d 146, reversed and remanded. [354 U.S. 300] HARLAN, J., lead

opinion



MR. JUSTICE HARLAN delivered the opinion of the Court.



We brought these cases here to consider certain questions arising under

the Smith Act which have not heretofore been passed upon by this Court,

and otherwise to review the convictions of these petitioners for

conspiracy to violate that Act.  Among other things, the convictions are

claimed to rest upon an application of the Smith Act which is hostile to

the principles upon which its constitutionality was upheld in Dennis v.

United States, 341 U.S. 494.



These 14 petitioners stand convicted, after a jury trial in the United

States District Court for the Southern District of California, upon a

single count indictment charging them with conspiring (1) to advocate

and teach the duty and necessity of overthrowing the Government of the

United States by force and violence, and (2) to organize, as the

Communist Party of the United States, a society of persons who so

advocate and teach, all with the intent of causing the overthrow of the

Government by force and violence as speedily as circumstances would

permit.  Act of June 28, 1940,  2(a)(1) and (3), 54 [354 U.S. 301] Stat.

670, 671, 18 U.S.C.  371, 2385.  The conspiracy is alleged to have

originated in 1940 and continued down to the date of the indictment in

1951.  The indictment charged that, in carrying out the conspiracy, the

defendants [354 U.S. 302] and their co-conspirators would (a) become

members and officers of the Communist Party, with knowledge of its

unlawful purposes, and assume leadership in carrying out its policies

and activities; (b) cause to be organized units of the Party in

California and elsewhere; (c) write and publish, in the "Daily Worker"

and other Party organs, articles on the proscribed advocacy and

teaching; (d) conduct schools for the indoctrination of Party members in

such advocacy and teaching, and (e) recruit new Party members,

particularly from among persons employed in the key industries of the

nation.  Twenty-three overt acts in furtherance of the conspiracy were

alleged.



Upon conviction, each of the petitioners was sentenced to five years'

imprisonment and a fine of $10,000.  The [354 U.S. 303] Court of Appeals

affirmed.  225 F.2d 146.  We granted certiorari for the reasons already

indicated.  350 U.S. 860.



In the view we take of this case, it is necessary for us to consider

only the following of petitioners' contentions:  (1) that the term

"organize," as used in the Smith Act, was erroneously construed by the

two lower courts; (2) that the trial court's instructions to the jury

erroneously excluded from the case the issue of "incitement to action";

(3) that the evidence was so insufficient as to require this Court to

direct the acquittal of these petitioners, and (4) that petitioner

Schneiderman's conviction was precluded by this Court's judgment in

Schneiderman v. United States, 320 U.S. 118, under the doctrine of

collateral estoppel.  For reasons given hereafter, we conclude that

these convictions must be reversed and the case remanded to the District

Court with instructions to enter judgments of acquittal as to certain of

the petitioners, and to grant a new trial as to the rest. I. The Term

"Organize"



One object of the conspiracy charged was to violate the third paragraph

of 18 U.S.C.  2385, which provides:



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 [government in the United States] by force or

violence . . . [s]hall be fined not more than $10,000 or imprisoned not

more than ten years, or both. [354 U.S. 304]



Petitioners claim that "organize" means to "establish," "found," or

"bring into existence," and that, in this sense, the Communist Party was

organized by 1945 at the latest.  On this basis, petitioners contend

that this part of the indictment, returned in 1951, was barred by the

three-year statute of limitations.  The Government, on the other hand,

says that "organize" connotes a continuing process which goes on

throughout the life of an organization, and that, in the words of the

trial court's instructions to the jury, the term includes such things as

"the recruiting of new members and the forming of new units, and the

regrouping or expansion of existing clubs, classes and other units of

any society, party, group or other organization."  The two courts below

accepted the Government's position.  We think, however, that

petitioners' position must prevail, upon principles stated by Chief

Justice Marshall more than a century ago in United States v. Wiltberger,

5 Wheat. 76, 95-96, as follows:



The rule that penal laws are to be construed strictly is perhaps not

much less old than construction itself.  It is founded on the tenderness

of the law for the rights of individuals, and on the plain principle

that the power of punishment is vested in the legislative, not in the

judicial, department.  It is the legislature, not the Court, which is to

define a crime, and ordain its punishment. [354 U.S. 305]



It is said that, notwithstanding this rule, the intention of the

lawmaker must govern in the construction of penal as well as other

statutes.  This is true.  But this is not a new independent rule which

subverts the old.  It is a modification of the ancient maxim, and

amounts to this:  that, though penal laws are to be construed strictly,

they are not to be construed so strictly as to defeat the obvious

intention of the legislature.  The maxim is not to be so applied as to

narrow the words of the statute to the exclusion of cases which those

words, in their ordinary acceptation, or in that sense in which the

legislature has obviously used them, would comprehend.  The intention of

the legislature is to be collected from the words they employ.  Where

there is no ambiguity in the words, there is no room for construction. 

The case must be a strong one indeed which would justify a Court in

departing from the plain meaning of words, especially in a penal act, in

search of an intention which the words themselves did not suggest.  To

determine that a case is within the intention of a statute, its language

must authorise us to say so.  It would be dangerous indeed to carry the

principle that a case which is within the reason or mischief of a

statute is within its provisions so far as to punish a crime not

enumerated in the statute because it is of equal atrocity, or of kindred

character, with those which are enumerated.  If this principle has ever

been recognized in expounding criminal law, it has been in cases of

considerable irritation, which it would be unsafe to consider as

precedents forming a general rule for other cases.



The statute does not define what is meant by "organize."  Dictionary

definitions are of little help, for, as those offered us sufficiently

show, the term is susceptible [354 U.S. 306] of both meanings attributed

to it by the parties here.  The fact that the Communist Party comprises

various components and activities, in relation to which some of the

petitioners bore the title of "Organizer," does not advance us towards a

solution of the problem.  The charge here is that petitioners conspired

to organize the Communist Party, and, unless "organize" embraces the

continuing concept contended for by the Government, the establishing of

new units within the Party and similar activities, following the Party's

initial formation in 1945, have no independent significance or vitality

so far as the "organizing" charge is involved.  Nor are we here

concerned with the quality of petitioners' activities as such -- that

is, whether particular activities may properly be categorized as

"organizational."  Rather, the issue is whether the term "organize," as

used in this statute, is limited by temporal concepts.  Stated most

simply, the problem is to choose between two possible answers to the

question:  when was the Communist Party "organized"?  Petitioners

contend that the only natural answer to the question is the formation

date -- in this case, 1945.  The Government would have us answer the

question by saying that the Party today is still not completely

"organized"; [354 U.S. 307] that "organizing" is a continuing process

that does not end until the entity is dissolved.



The legislative history of the Smith Act is no more revealing as to what

Congress meant by "organize" than is the statute itself.  The Government

urges that "organize" should be given a broad meaning, since acceptance

of the term in its narrow sense would require attributing to Congress

the intent that this provision of the statute should not apply to the

Communist Party as it then existed.  The argument is that, since the

Communist Party as it then existed had been born in 1919 and the Smith

Act was not passed until 1940, the use of "organize" in its narrow sense

would have meant that these provisions of the statute would never have

reached the act of organizing the Communist Party, except for the

fortuitous rebirth of the Party in 1945 -- an occurrence which, of

course, could not have been foreseen in 1940.  This, says the

Government, could hardly have been the congressional purpose, since the

Smith Act as a whole was particularly aimed at the Communist Party, and

its "organizing" provisions were especially directed at the leaders of

the movement.



We find this argument unpersuasive.  While the legislative history of

the Smith Act does show that concern about communism was a strong factor

leading to this legislation, it also reveals that the statute, which was

patterned on state anti-sedition laws directed not against Communists

but against anarchists and syndicalists, was aimed equally at all groups

falling within its scope.  [354 U.S. 308] More important, there is no

evidence whatever to support the thesis that the organizing provision of

the statute was written with particular reference to the Communist

Party.  Indeed, the congressional hearings indicate that it was the

"advocating and teaching" provision of the Act, rather than the

"organizing" provision, which was especially thought to reach Communist

activities.



Nor do there appear to be any other reasons for ascribing to "organize"

the Government's broad interpretation.  While it is understandable that

Congress should have wished to supplement the general provisions of the

Smith Act by a special provision directed at the activities of those

responsible for creating a new organization of the proscribed type, such

as was the situation involved in the Dennis case, we find nothing which

suggests that the "organizing" provision was intended to reach beyond

this, that is, to embrace the activities of those concerned with

carrying on the affairs of an already existing organization.  Such

activities were already amply covered by other provisions of the Act,

such as the "membership" clause,{10} and the basic prohibition of

"advocacy" in conjunction with the conspiracy provision, and there is

thus no need to stretch the "organizing" provision to fill any gaps in

the statute.  Moreover, it is difficult to find any considerations,

comparable to those relating to persons responsible for creating a new

organization, which would have led the Congress to single out for

special treatment those persons occupying so-called organizational

positions in an existing organization, especially when this same section

of the statute proscribes membership in such an organization without

drawing any distinction between those holding executive office and

others. [354 U.S. 309]



On the other hand, we also find unpersuasive petitioners' argument as to

the intent of Congress.  In support of the narrower meaning of

"organize," they argue that the Smith Act was patterned after the

California Criminal Syndicalism Act;{11} that the California courts have

consistently taken "organize" in that Act in its narrow sense;{12} and

that, under such cases as Willis v. Eastern Trust & Banking Co., 169

U.S. 295, 304, 309, and Joines v. Patterson, 274 U.S. 544, 549, it

should be presumed that Congress in adopting the wording of the

California Act intended "organize" to have the same meaning as that

given it by the California courts.  As the hearings on the Smith Act

show, however, its particular prototype was the New York Criminal

Anarchy Act,{13} not the California statute, and the "organizing"

provisions of the New York Act have never been construed by any court. 

Moreover, to the extent that the language of the California statute,

which itself was patterned on the earlier New York legislation, might be

significant, we think that little weight can be given to these

California decisions.  The general rule that adoption of the wording of

a statute from another legislative jurisdiction carries with it the

previous judicial interpretations of the wording . . . is a presumption

of legislative intention . . . which varies in strength with the

similarity of the language, the established character of the decisions

in the jurisdiction from which the language was adopted and the presence

or lack of other indicia of intention. Carolene Products Co. v. United

States, 323 [354 U.S. 310] U.S. 18, 26.  Here, the three California

cases relied on by petitioners were all decisions of lower courts, and,

in the absence of anything in the legislative history indicating that

they were called to its attention, we should not assume that Congress

was aware of them.



We are thus left to determine for ourselves the meaning of this

provision of the Smith Act, without any revealing guides as to the

intent of Congress.  In these circumstances, we should follow the

familiar rule that criminal statutes are to be strictly construed, and

give to "organize" its narrow meaning, that is, that the word refers

only to acts entering into the creation of a new organization, and not

to acts thereafter performed in carrying on its activities, even though

such acts may loosely be termed "organizational."  See United States v.

Wiltberger, supra; United States v. Lacher, 134 U.S. 624, 628; United

States v. Gradwell, 243 U.S. 476, 485; Fasulo v. United States, 272 U.S.

620, 628.  Such indeed is the normal usage of the word "organize,"{14}

and, until the decisions below in this case, the federal trial courts in

which the question had arisen uniformly gave it that meaning.  See

United States v. Flynn, unreported (D.C.S.D.N.Y.), No. C. 137-37, aff'd,

216 F.2d 354, 358; United States v. Mesarosh, 116 F.Supp. 345, aff'd,

223 F.2d 449, 465 (dissenting opinion of Hastie, J.); see also United

States v. Dennis, unreported (D.C.S.D.N.Y.), No. C. 128-87, aff'd, 183

F.2d 201, 341 U.S. 494.{15}  [354 U.S. 311] We too think this statute

should be read according to the natural and obvious import of the

language, without resorting to subtle and forced construction for the

purpose of either limiting or extending its operation. United States v.

Temple, 105 U.S. 97, 99.



The Government contends that, even if the trial court was mistaken in

its construction of the statute, the error was harmless because the

conspiracy charged embraced both "advocacy" of violent overthrow and

"organizing" the Communist Party, and the jury was instructed that, in

order to convict, it must find a conspiracy extending to both

objectives.  Hence, the argument is, the jury must, in any event, be

taken to have found petitioners guilty of conspiring to advocate, and

the convictions are supportable on that basis alone.  We cannot accept

this proposition for a number of reasons.  The portions of the trial

court's instructions relied on by the Government are not sufficiently

clear or specific to warrant our drawing the inference that the jury

understood it must find an agreement extending to both "advocacy" and

"organizing" in order to convict.{16}  Further, in order to convict, the

jury was required, as the court charged, to find an overt act which was

"knowingly done in furtherance of an object or purpose of the conspiracy

charged in the indictment," and we have no way of knowing whether the

overt act found by the jury was one which it believed to be in

furtherance [354 U.S. 312] of the "advocacy", rather than the

"organizing" objective of the alleged conspiracy.  The character of most

of the overt acts alleged associates them as readily with "organizing"

as with "advocacy."{17}  In these circumstances, we think the proper

rule to be applied is that which requires a verdict to be set aside in

cases where the verdict is supportable on one ground, but not on

another, and it is impossible to tell which ground the jury selected. 

Stromberg v. California, 283 U.S. 359,  Williams v. North Carolina, 317

U.S. 287, 291-292; Cramer v. United States, 325 U.S. 1, 36, n. 45.



We conclude, therefore, that, since the Communist Party came into being

in 1945, and the indictment was not returned until 1951, the three-year

statute of limitations had run on the "organizing" charge, and required

the withdrawal of that part of the indictment from the jury's

consideration.  Samuel v. United States, 169 F.2d 787, 798.  See also

Haupt v. United States, 330 U.S. 631, 641, n. 1; Stromberg v.

California, supra, at 368. II. Instructions to the Jury



Petitioners contend that the instructions to the jury were fatally

defective in that the trial court refused to charge that, in order to

convict, the jury must find that the advocacy which the defendants

conspired to promote was of a kind calculated to "incite" persons to

action for the forcible overthrow of the Government.  It is argued that

advocacy of forcible overthrow as mere abstract doctrine is within the

free speech protection of the First [354 U.S. 313] Amendment; that the

Smith Act, consistently with that constitutional provision, must be

taken as proscribing only the sort of advocacy which incites to illegal

action, and that the trial court's charge, by permitting conviction for

mere advocacy, unrelated to its tendency to produce forcible action,

resulted in an unconstitutional application of the Smith Act.  The

Government, which at the trial also requested the court to charge in

terms of "incitement," now takes the position, however, that the true

constitutional dividing line is not between inciting and abstract

advocacy of forcible overthrow, but rather between advocacy as such,

irrespective of its inciting qualities, and the mere discussion or

exposition of violent overthrow as an abstract theory.



We print in the margin the pertinent parts of the trial court's

instructions.{18}  After telling the jury that it could [354 U.S. 314]

not convict the defendants for holding or expressing mere opinions,

beliefs, or predictions relating to violent overthrow, the trial court

defined the content of the proscribed advocacy or teaching in the

following terms, which are crucial here:



Any advocacy or teaching which does not include the urging of force and

violence as the means of overthrowing and destroying the Government of

the United States is not within the issue of the indictment here, and

can constitute no basis for any finding against the defendants.



The kind of advocacy and teaching which is charged and upon which your

verdict must be [354 U.S. 315] reached is not merely a desirability, but

a necessity that the Government of the United States be overthrown and

destroyed by force and violence, and not merely a propriety, but a duty

to overthrow and destroy the Government of the United States by force

and violence.



There can be no doubt from the record that, in so instructing the jury,

the court regarded as immaterial, and intended to withdraw from the

jury's consideration, any issue as to the character of the advocacy in

terms of its capacity to stir listeners to forcible action.  Both the

petitioners and the Government submitted proposed instructions which

would have required the jury to find [354 U.S. 316] that the proscribed

advocacy was not of a mere abstract doctrine of forcible overthrow, but

of action to that end, by the use of language reasonably and ordinarily

calculated to incite persons to such action.{19}  The trial court

rejected these proposed instructions on the ground that any necessity

for giving them which may have existed at [354 U.S. 317] the time the

Dennis case was tried{20} was removed by this Court's subsequent

decision in that case.  The court made it clear in colloquy with counsel

that, in its view, the illegal advocacy was made out simply by showing

that what was said dealt with forcible overthrow, and that it was

uttered with a specific intent to accomplish that purpose,{21} insisting

that all such advocacy was punishable [354 U.S. 318] "whether it is

language of incitement or not."  The Court of Appeals affirmed on a

different theory, as we shall see later on.



We are thus faced with the question whether the Smith Act prohibits

advocacy and teaching of forcible overthrow as an abstract principle,

divorced from any effort to instigate action to that end, so long as

such advocacy or teaching is engaged in with evil intent.  We hold that

it does not.



The distinction between advocacy of abstract doctrine and advocacy

directed at promoting unlawful action is one that has been consistently

recognized in the opinions of this Court, beginning with Fox v.

Washington, 236 U.S. 273, and Schenck v. United States, 249 U.S. 47.{22}

 This distinction was heavily underscored in Gitlow v. New York, 268

U.S. 652, in which the statute involved{23} was nearly identical with

the one now before us, and where the Court, despite the narrow view

there taken of the First Amendment,{24} said:



The statute does not penalize the utterance or publication of abstract

"doctrine" or academic discussion having no quality of incitement to any

concrete action. . . .  It is not the abstract "doctrine" of

overthrowing organized government by unlawful means which is denounced

by the statute, but the advocacy of action for the accomplishment of

that purpose. . . .  This [Manifesto] . . . is [in] the language of

direct incitement. . . .  That the jury were warranted in finding that

the Manifesto advocated not merely the abstract doctrine of overthrowing

organized government by force, violence and [354 U.S. 319] unlawful

means, but action to that end, is clear. . . .  That utterances inciting

to the overthrow of organized government by unlawful means, present a

sufficient danger of substantive evil to bring their punishment within

the range of legislative discretion, is clear. Id. at



We need not, however, decide the issue before us in terms of

constitutional compulsion, for our first duty is to construe this

statute.  In doing so, we should not assume that Congress chose to

disregard a constitutional danger zone so clearly marked, or that it

used the words "advocate" and "teach" in their ordinary dictionary

meanings when they had already been construed as terms of art carrying a

special and limited connotation.  See Willis v. Eastern Trust & Banking

Co., supra; Joines v. Patterson, supra; James v. Appel, 192 U.S. 129,

135.  The Gitlow case and the New York Criminal Anarchy Act there

involved, which furnished the prototype for the Smith Act, were both

known and adverted to by Congress in the course of the legislative

proceedings.{25}  Cf. Carolene Products Co. v. United States, supra. 

The legislative history of the Smith Act and related bills shows beyond

all question that Congress was aware of the distinction between the

advocacy or teaching of abstract doctrine and the advocacy or teaching

of action, and that it did not intend to disregard it.{26}  The statute

was aimed [354 U.S. 320] at the advocacy and teaching of concrete action

for the forcible overthrow of the Government, and not of principles

divorced from action.



The Government's reliance on this Court's decision in Dennis is

misplaced.  The jury instructions which were refused here were given

there,{27} and were referred to by this Court as requiring "the jury to

find the facts essential to establish the substantive crime."   341 U.S.

at 512 (emphasis added).  It is true that, at one point in the late

Chief Justice's opinion, it is stated that the Smith Act "is directed at

advocacy, not discussion," id. at 502, but it is clear that the

reference was to advocacy of action, not ideas, for, in the very next

sentence, the opinion emphasizes that the jury was properly instructed

that there could be no conviction for "advocacy in the realm of ideas." 

The two concurring opinions in that case likewise emphasize the

distinction with which we are concerned.  Id. at 518, 534, 536, 545,

546, 547, 571, 572.



In failing to distinguish between advocacy of forcible overthrow as an

abstract doctrine and advocacy of action to that end, the District Court

appears to have been led astray by the holding in Dennis that advocacy

of violent action to be taken at some future time was enough.  It seems

to have considered that, since "inciting" speech is usually thought of

as something calculated to induce immediate action, and since Dennis

held advocacy of action for future overthrow sufficient, this meant that

advocacy, irrespective of its tendency to generate action, is

punishable, provided only that it is uttered with a specific intent to

accomplish overthrow.  In other words, the District Court apparently

thought that Dennis obliterated the traditional dividing line between

advocacy of abstract doctrine and advocacy of action.{28} [354 U.S. 321]



This misconceives the situation confronting the Court in Dennis and what

was held there.  Although the jury's verdict, interpreted in light of

the trial court's instructions,{29} did not justify the conclusion that

the defendants' advocacy was directed at, or created any danger of,

immediate overthrow, it did establish that the advocacy was aimed at

building up a seditious group and maintaining it in readiness for action

at a propitious time.  In such circumstances, said Chief Justice Vinson,

the Government need not hold its hand until the putsch is about to be

executed, the plans have been laid and the signal is awaited.  If

Government is aware that a group aiming at its overthrow is attempting

to indoctrinate its members and to commit them to a course whereby they

will strike when the leaders feel the circumstances permit, action by

the Government is required. 341 U.S. at 509.  The essence of the Dennis

holding was that indoctrination of a group in preparation for future

violent action, as well as exhortation to immediate action, by advocacy

found to be directed to "action for the accomplishment" of forcible

overthrow, to violence as "a rule or principle of action," and employing

"language of incitement," id. at  is not constitutionally protected when

the group is of sufficient size and cohesiveness, is sufficiently

oriented towards action, and other circumstances are such as reasonably

to justify apprehension that action will occur.  This is quite a

different thing from the view of the District Court here that mere

doctrinal justification of forcible overthrow, if engaged in with the

intent to accomplish overthrow, is punishable per se under the Smith

Act.  That sort of advocacy, even though uttered with the hope that it

may ultimately lead to violent revolution, is too remote from concrete

action to be regarded [354 U.S. 322] as the kind of indoctrination

preparatory to action which was condemned in Dennis.  As one of the

concurring opinions in Dennis put it: Throughout our decisions, there

has recurred a distinction between the statement of an idea which may

prompt its hearers to take unlawful action, and advocacy that such

action be taken. Id. at 545.  There is nothing in Dennis which makes

that historic distinction obsolete.



The Court of Appeals took a different view from that of the District

Court.  While seemingly recognizing that the proscribed advocacy must be

associated in some way with action, and that the instructions given the

jury here fell short in that respect, it considered that the

instructions which the trial court refused were unnecessary in this

instance because establishment of the conspiracy, here charged under the

general conspiracy statute, required proof of an overt act, whereas in

Dennis, where the conspiracy was charged under the Smith Act, no overt

act was required.{30}  In other words, the Court of Appeals thought that

the requirement of proving an overt act was an adequate substitute for

the linking of the advocacy to action which would otherwise have been

necessary.{31}  This, of course, is a mistaken notion, for the [354 U.S.

323] overt act will not necessarily evidence the character of the

advocacy engaged in, nor, indeed, is an agreement to advocate forcible

overthrow itself an unlawful conspiracy if it does not call for advocacy

of action.  The statement in Dennis that "it is the existence of the

conspiracy which creates the danger," 341 U.S. at 511, does not support

the Court of Appeals.  Bearing in mind that Dennis, like all other Smith

Act conspiracy cases thus far, including this one, involved advocacy

which had already taken place, and not advocacy still to occur, it is

clear that, in context, the phrase just quoted referred to more than the

basic agreement to advocate. The mere fact that [during the indictment

period] petitioners' activities did not result in an attempt to

overthrow the Government by force and violence is, of course, no answer

to the fact that there was a group that was ready to make the attempt. 

The formation by petitioners of such a highly organized conspiracy, with

rigidly disciplined members subject to call when the leaders, these

petitioners, felt that [354 U.S. 324] the time had come for action,

coupled with . . . world conditions, . . . disposes of the contention

that a conspiracy to advocate, as distinguished from the advocacy

itself, cannot be constitutionally restrained, because it comprises only

the preparation.  It is the existence of the conspiracy which creates

the danger. . . .  If the ingredients of the reaction are present, we

cannot bind the Government to wait until the catalyst is added. 341 U.S.

at (emphasis supplied).  The reference of the term "conspiracy," in

context, was to an agreement to accomplish overthrow at some future

time, implicit in the jury's findings under the instructions given,

rather than to an agreement to speak.  Dennis was thus not concerned

with a conspiracy to engage at some future time in seditious advocacy,

but rather with a conspiracy to advocate presently the taking of

forcible action in the future.  It was action, not advocacy, that was to

be postponed until "circumstances" would "permit."  We intimate no views

as to whether a conspiracy to engage in advocacy in the future, where

speech would thus be separated from action by one further remove, is

punishable under the Smith Act.



We think, thus, that both of the lower courts here misconceived Dennis.



In light of the foregoing we are unable to regard the District Court's

charge upon this aspect of the case as adequate.  The jury was never

told that the Smith Act does not denounce advocacy in the sense of

preaching abstractly the forcible overthrow of the Government.  We think

that the trial court's statement that the proscribed advocacy must

include the "urging," "necessity," and "duty" of forcible overthrow, and

not merely its "desirability" and "propriety," may not be regarded as a

sufficient substitute for charging that the Smith Act reaches only

advocacy of action for the overthrow of government by force and

violence.  The essential distinction [354 U.S. 325] is that those to

whom the advocacy is addressed must be urged to do something, now or in

the future, rather than merely to believe in something.  At best, the

expressions used by the trial court were equivocal, since, in the

absence of any instructions differentiating advocacy of abstract

doctrine from advocacy of action, they were as consistent with the

former as they were with the latter.  Nor do we regard their ambiguity

as lessened by what the trial court had to say as to the right of the

defendants to announce their beliefs as to the inevitability of violent

revolution, or to advocate other unpopular opinions.  Especially when it

is unmistakable that the court did not consider the urging of action for

forcible overthrow as being a necessary element of the proscribed

advocacy, but rather considered the crucial question to be whether the

advocacy was uttered with a specific intent to accomplish such

overthrow,{32} we would not be warranted in assuming that the jury drew

from these instructions more than the court itself intended them to

convey.



Nor can we accept the Government's argument that the District Court was

justified in not charging more than it did because the refused

instructions proposed by both sides specified that the advocacy must be

of a character reasonably calculated to "incite" to forcible overthrow,

a term which, it is now argued, might have conveyed to the jury an

implication that the advocacy must be of immediate action.  Granting

that some qualification of the proposed instructions would have been

permissible to dispel such an implication, and that it was not necessary

even that the trial court should have employed the particular term

"incite," it was nevertheless incumbent on the court to make clear in

some fashion that the advocacy must be of action and not merely abstract

doctrine.  The instructions given not only do not employ the word [354

U.S. 326] "incite," but also avoid the use of such terms and phrases as

"action," "call for action," "as a rule or principle of action," and so

on, all of which were offered in one form or another by both the

petitioners and the Government.{33}



What we find lacking in the instructions here is illustrated by

contrasting them with the instructions given to the Dennis jury, upon

which this Court's sustaining of the convictions in that case was

bottomed.  There, the trial court charged:



In further construction and interpretation of the statute [the Smith

Act], I charge you that it is not the abstract doctrine of overthrowing

or destroying organized government by unlawful means which is denounced

by this law, but the teaching and advocacy of action for the

accomplishment of that purpose, by language reasonably and ordinarily

calculated to incite persons to such action.  Accordingly, you cannot

find the defendants or any of them guilty of the crime charged unless

you are satisfied beyond a reasonable doubt that they conspired . . . to

advocate and teach the duty and necessity of overthrowing or destroying

the Government of the United States by force and violence, with the

intent that such teaching and advocacy be of a rule or principle of

action and by language reasonably and ordinarily calculated to incite

persons to such action, all with the intent to cause the overthrow . . .

as speedily as circumstances would permit. (Emphasis added.)  9 F.R.D.

367, 391, and see 341 U.S. at



We recognize that distinctions between advocacy or teaching of abstract

doctrines, with evil intent, and that which is directed to stirring

people to action, are often subtle and difficult to grasp, for, in a

broad sense, as Mr. Justice Holmes said in his dissenting opinion in

Gitlow, [354 U.S. 327] supra, 268 U.S. at 673:  "Every idea is an

incitement."  But the very subtlety of these distinctions required the

most clear and explicit instructions with reference to them, for they

concerned an issue which went to the very heart of the charges against

these petitioners.  The need for precise and understandable instructions

on this issue is further emphasized by the equivocal character of the

evidence in this record, with which we deal in Part III of this opinion.

 Instances of speech that could be considered to amount to "advocacy of

action" are so few and far between as to be almost completely

overshadowed by the hundreds of instances in the record in which

overthrow, if mentioned at all, occurs in the course of doctrinal

disputation so remote from action as to be almost wholly lacking in

probative value.  Vague references to "revolutionary" or "militant"

action of an unspecified character which are found in the evidence

might, in addition, be given too great weight by the jury in the absence

of more precise instructions.  Particularly in light of this record, we

must regard the trial court's charge in this respect as furnishing

wholly inadequate guidance to the jury on this central point in the

case.  We cannot allow a conviction to stand on such "an equivocal

direction to the jury on a basic issue."  Bollenbach v. United States,

326 U.S. 607, 613. III. The Evidence



The determinations already made require a reversal of these convictions.

 Nevertheless, in the exercise of our power under 28 U.S.C.  2106 to

"direct the entry of such appropriate judgment . . . as may be just

under the circumstances," we have conceived it to be our duty to

scrutinize this lengthy record{34} with care, in order to determine

whether the way should be left open for a new trial of all or some of

these petitioners.  Such a judgment, we [354 U.S. 328] think, should, on

the one hand, foreclose further proceedings against those of the

petitioners as to whom the evidence in this record would be palpably

insufficient upon a new trial, and should, on the other hand, leave the

Government free to retry the other petitioners under proper legal

standards, especially since it is by no means clear that certain aspects

of the evidence against them could not have been clarified to the

advantage of the Government had it not been under a misapprehension as

to the burden cast upon it by the Smith Act.  In judging the record by

these criteria, we do not apply to these cases the rigorous standards of

review which, for example, the Court of Appeals would be required to

apply in reviewing the evidence if any of these petitioners are

convicted upon a retrial.  Compare Dennis v. United States, supra, at

516.  Rather, we have scrutinized the record to see whether there are

individuals as to whom acquittal is unequivocally demanded.  We do this

because it is, in general, too hypothetical and abstract an inquiry to

try to judge whether the evidence would have been inadequate had the

cases been submitted under a proper charge, and had the Government

realized that all its evidence must be channeled into the "advocacy",

rather than the "organizing" charge.  We think we may do this by drawing

on our power under 28 U.S.C.  2106, because, under that statute, we

would no doubt be justified in refusing to order acquittal even where

the evidence might be deemed palpably insufficient, particularly since

petitioners have asked in the alternative for a new trial as well as for

acquittal.  See Bryan v. United States, 338 U.S. 552.



On this basis, we have concluded that the evidence against petitioners

Connelly, Kusnitz, Richmond, Spector, and Steinberg is so clearly

insufficient that their acquittal should be ordered, but that, as to

petitioners Carlson, Dobbs, Fox, Healey (Mrs. Connelly), Lambert, Lima,

Schneiderman, Stack, and Yates, we would not be justified [354 U.S. 329]

in closing the way to their retrial.  We proceed to the reasons for

these conclusions.



At the outset, in view of the conclusions reached in Part I of this

opinion, we must put aside as against all petitioners the evidence

relating to the "organizing" aspect of the alleged conspiracy, except

insofar as it bears upon the "advocacy" charge.  That, indeed, dilutes

in a substantial way a large part of the evidence, for the record

unmistakably indicates that the Government relied heavily on its

"organizing" charge.  Two further general observations should also be

made about the evidence as to the "advocacy" charge.  The first is that

both the Government and the trial court evidently proceeded on the

theory that advocacy of abstract doctrine was enough to offend the Smith

Act, whereas, as we have held, it is only advocacy of forcible action

that is proscribed.  The second observation is that both the record and

the Government's brief in this Court make it clear that the Government's

thesis was that the Communist Party, or at least the Communist Party of

California, constituted the conspiratorial group, and that membership in

the conspiracy could therefore be proved by showing that the individual

petitioners were actively identified with the Party's affairs, and thus,

inferentially, parties to its tenets.  This might have been well enough

towards making out the Government's case if advocacy of the abstract

doctrine of forcible overthrow satisfied the Smith Act, for we would at

least have little difficulty in saying on this record that a jury could

justifiably conclude that such was one of the tenets of the Communist

Party, and there was no dispute as to petitioners' active identification

with Party affairs.  But, when it comes to Party advocacy or teaching in

the sense of a call to forcible action at some future time, we cannot

but regard this record as strikingly deficient.  At best, this

voluminous record shows but a half dozen or so scattered incidents

which, even under the loosest [354 U.S. 330] standards, could be deemed

to show such advocacy.  Most of these were not connected with any of the

petitioners, or occurred many years before the period covered by the

indictment.  We are unable to regard this sporadic showing as sufficient

to justify viewing the Communist Party as the nexus between these

petitioners and the conspiracy charged.  We need scarcely say that

however much one may abhor even the abstract preaching of forcible

overthrow of government, or believe that forcible overthrow is the

ultimate purpose to which the Communist Party is dedicated, it is upon

the evidence in the record that the petitioners must be judged in this

case.



We must, then, look elsewhere than to the evidence concerning the

Communist Party as such for the existence of the conspiracy to advocate

charged in the indictment.  As to the petitioners Connelly, Kusnitz,

Richmond, Spector, and Steinberg, we find no adequate evidence in the

record which would permit a jury to find that they were members of such

a conspiracy.  For all purposes relevant here, the sole evidence as to

them was that they had long been members, officers or functionaries of

the Communist Party of California, and that, standing alone, as Congress

has enacted in  4(f) of the Internal Security Act of 1950,{35} makes out

no case against them.  So far as this record shows, none of them has

engaged in or been associated with any but what appear to have been

wholly lawful activities,{36} or has ever made a single remark or [354

U.S. 331] been present when someone else made a remark, which would tend

to prove the charges against them.  Connelly and Richmond were, to be

sure, the Los Angeles and Executive Editors, respectively, of the Daily

People's World, the West Coast Party organ, but we can find nothing in

the material introduced into evidence from that newspaper which advances

the Government's case.



Moreover, apart from the inadequacy of the evidence to show, at best,

more than the abstract advocacy and teaching of forcible overthrow by

the Party, it is difficult to perceive how the requisite specific intent

to accomplish such overthrow could be deemed proved by a showing of mere

membership or the holding of office in the Communist Party.  We

therefore think that, as to these petitioners, the evidence was entirely

too meagre to justify putting them to a new trial, and that their

acquittal should be ordered.



As to the nine remaining petitioners, we consider that a different

conclusion should be reached.  There was testimony from the witness

Foard, and other evidence, tying Fox, Healey, Lambert, Lima,

Schneiderman, Stack, and Yates to Party classes conducted in the San

Francisco area during the year 1946 where there occurred what might be

considered to be the systematic teaching and advocacy of illegal action

which is condemned by the statute.  It might be found that one of the

purposes of such classes was to develop in the members of the group a

readiness to engage at the crucial time, perhaps during war or during

attack upon the United States from without, in such activities as

sabotage and street fighting in order to divert and diffuse the

resistance of the authorities and, if possible, to seize local vantage

points.  There was also testimony as to activities in the Los Angeles

area, during the period covered by the indictment, which might be

considered to amount to "advocacy of action," and with which petitioners

Carlson and Dobbs were linked.  From the [354 U.S. 332] testimony of the

witness Scarletto, it might be found that individuals considered to be

particularly trustworthy were taken into an "underground" apparatus and

there instructed in tasks which would be useful when the time for

violent action arrived.  Scarletto was surreptitiously indoctrinated in

methods, as he said, of moving "masses of people in time of crisis."  It

might be found, under all the circumstances, that the purpose of this

teaching was to prepare the members of the underground apparatus to

engage in, to facilitate, and to cooperate with violent action directed

against government when the time was ripe.  In short, while the record

contains evidence of little more than a general program of educational

activity by the Communist Party which included advocacy of violence as a

theoretical matter, we are not prepared to say, at this stage of the

case, that it would be impossible for a jury, resolving all conflicts in

favor of the Government and giving the evidence as to these San

Francisco and Los Angeles episodes its utmost sweep, to find that

advocacy of action was also engaged in when the group involved was

thought particularly trustworthy, dedicated, and suited for violent

tasks.



Nor can we say that the evidence linking these nine petitioners to that

sort of advocacy, with the requisite specific intent, is so tenuous as

not to justify their retrial under proper legal standards.  Fox, Healey,

Lambert, Lima, Schneiderman, Stack, and Yates, as members of the State

and San Francisco County Boards, were shown to have been closely

associated with Ida Rothstein, the principal teacher of the San

Francisco classes, who also, during this same period, arranged in a

devious and conspiratorial manner for the holding of Board meetings at

the home of the witness Honig which were attended by these petitioners. 

It was also shown that, from time to time, instructions emanated from

the Boards or their members to instructors of groups at lower levels .

And while none [354 U.S. 333] of the written instructions produced at

the trial were invidious in themselves, it might be inferred that

additional instructions were given which were not reduced to writing. 

Similarly, there was evidence of close association between petitioners

Carlson and Dobbs and associates or superiors of the witness Scarletto

which might be taken as indicating that these two petitioners had

knowledge of the apparatus in which Scarletto was active.  And finally,

all of these nine petitioners were shown either to have made statements

themselves or apparently approved statements made in their presence

which a jury might take as some evidence of their participation with the

requisite intent in a conspiracy to advocate illegal action.



As to these nine petitioners, then, we shall not order an acquittal.



Before leaving the evidence, we consider it advisable, in order to avoid

possible misapprehension upon a new trial, to deal briefly with

petitioners' contention that the evidence was insufficient to prove the

overt act required for conviction of conspiracy under 18 U.S.C.  371. 

Only 2 of the 11 overt acts alleged in the indictment to have occurred

within the period of the statute of limitations were proved.  Each was a

public meeting held under Party auspices at which speeches were made by

one or more of the petitioners extolling leaders of the Soviet Union and

criticizing various aspects of the foreign policy of the United States. 

At one of the meetings, an appeal for funds was made.  Petitioners

contend that these meetings do not satisfy the requirement of the

statute that there be shown an act done by one of the conspirators "to

effect the object of the conspiracy."  The Government concedes that

nothing unlawful was shown to have been said or done at these meetings,

but contends that these occurrences nonetheless sufficed as overt acts

under the jury's findings. [354 U.S. 334]



We think the Government's position is correct.  It is not necessary that

an overt act be the substantive crime charged in the indictment as the

object of the conspiracy.  Pierce v. United States, 252 U.S. 239, 244;

United States v. Rabinowich, 238 U.S. 78, 86.  Nor, indeed, need such an

act, taken by itself, even be criminal in character.  Braverman v.

United States, 317 U.S. 49.  The function of the overt act in a

conspiracy prosecution is simply to manifest "that the conspiracy is at

work," Carlson v. United States, 187 F.2d 366, 370, and is neither a

project still resting solely in the minds of the conspirators nor a

fully completed operation no longer in existence.  The substantive

offense here charged as the object of the conspiracy is speech, rather

than the specific action that typically constitutes the gravamen of a

substantive criminal offense.  Were we to hold that some concrete action

leading to the overthrow of the Government was required, as petitioners

appear to suggest, we would have changed the nature of the offense

altogether.  No such drastic change in the law can be drawn from

Congress' perfunctory action in 1948 bringing Smith Act cases within 18

U.S.C.  371.



While, upon a new trial, the overt act must be found, in view of what we

have held, to have been in furtherance of a conspiracy to "advocate,"

rather than to "organize," we are not prepared to say that one of the

episodes relied on here could not be found to be in furtherance of such

an objective if, under proper instructions, a jury should find that the

Communist Party was a vehicle through which the alleged conspiracy was

promoted.  While, in view of our acquittal of Steinberg, the first of

these episodes, in which he is alleged to have been involved, may no

longer be relied on as an overt act, this would not affect the second

episode, in which petitioner Schneiderman was alleged and proved to have

participated.



For the foregoing reasons we think that the way must be left open for a

new trial to the extent indicated. [354 U.S. 335] IV. Collateral

Estoppel



There remains to be dealt with petitioner Schneiderman's claim based on

the doctrine of collateral estoppel by judgment.  Petitioner urges that,

in Schneiderman v. United States, 320 U.S. 118, a denaturalization

proceeding in which he was the prevailing party, this Court made

determinations favorable to him which are conclusive in this proceeding

under the doctrine of collateral estoppel.  Specifically, petitioner

contends that the Schneiderman decision determined, for purposes of this

proceeding, (1) that the teaching of Marxism-Leninism by the Communist

Party was not necessarily the advocacy of violent overthrow of

government; (2) that at least one tenable conclusion to be drawn from

the evidence was that the Communist Party desired to achieve its goal of

socialism through peaceful means; (3) that it could not be presumed,

merely because of his membership or officership in the Communist Party,

that Schneiderman adopted an illegal interpretation of Marxist doctrine,

and, finally, (4) that, absent proof of overt acts indicating that

Schneiderman personally adopted a reprehensible interpretation, the

Government had failed to establish its burden by the clear and

unequivocal evidence necessary in a denaturalization case.  In the

courts below, petitioner urged unsuccessfully that these determinations

were conclusive in this proceeding under the doctrine of collateral

estoppel, and entitled him either to an acquittal or to special

instructions to the jury.  He makes the same contentions here.



We are in agreement with petitioner that the doctrine of collateral

estoppel is not made inapplicable by the fact that this is a criminal

case, whereas the prior proceedings were civil in character.  United

States v. Oppenheimer, 242 U.S. 85.  We agree further that the

nonexistence of a fact may be established by a judgment no less than its

[354 U.S. 336] existence; that, in other words, a party may be precluded

under the doctrine of collateral estoppel from attempting a second time

to prove a fact that he sought unsuccessfully to prove in a prior

action.  Sealfon v. United States, 332 U.S. 575.  Nor need we quarrel

with petitioner's premise that the standard of proof applicable in

denaturalization cases is at least no greater than that applicable in

criminal proceedings.  Compare Helvering v. Mitchell, 303 U.S. 391;

Murphy v. United States, 272 U.S. 630.  We assume, without deciding,

that substantially the same standards of proof are applicable in the two

types of cases.  Cf. Klapprott v. United States, 335 U.S. 601, 612. 

Nevertheless, for reasons that will appear, we think that the doctrine

of collateral estoppel does not help petitioner here.



We differ with petitioner, first of all, in his estimate of what the

Schneiderman case determined for purposes of the doctrine of collateral

estoppel.  That doctrine makes conclusive in subsequent proceedings only

determinations of fact, and mixed fact and law, that were essential to

the decision.  Commissioner v. Sunnen, 333 U.S. 591, 601-602; Tait v.

Western Maryland R. Co., 289 U.S. 620; The Evergreens v. Nunan, 141 F.2d

927, 928.  As we read the Schneiderman opinion, the only determination

essential to the decision was that Schneiderman had not, prior to 1927,

adopted an interpretation of the Communist Party's teachings featuring

"agitation and exhortation calling for present violent action."  320

U.S. at   If it be accepted that the holding extended in the alternative

to the character of advocacy engaged in by the Communist Party, then the

essential finding was that the Party had not, in 1927, engaged in

"agitation and exhortation calling for present violent action."  Ibid. 

The Court in Schneiderman certainly did not purport to determine what

the doctrinal content of "Marxism-Leninism" might be at all times and in

all places.  Nor did it establish that the books and pamphlets

introduced against [354 U.S. 337] Schneiderman in that proceeding could

not support in any way an inference of criminality, no matter how or by

whom they might thereafter be used.  At most, we think, it made the

determinations we have stated, limited to the time and place that were

then in issue.



It is therefore apparent that the determinations made by this Court in

Schneiderman could not operate as a complete bar to this proceeding. 

Wholly aside from the fact that the Court was there concerned with the

state of affairs existing in 1927, whereas we are concerned here with

the period 1948-1951, the issues in the present case are quite

different.  We are not concerned here with whether petitioner has

engaged in "agitation and exhortation calling for present violent

action," whether in 1927 or later.  Even if it were conclusively

established against the Government that neither petitioner nor the

Communist Party had ever engaged in such advocacy, that circumstance

would constitute no bar to a conviction under 18 U.S.C.  371 of

conspiring to advocate forcible overthrow of government in violation of

the Smith Act.  It is not necessary for conviction here that advocacy of

"present violent action" be proved.  Petitioner's demand for judgment of

acquittal must therefore be rejected.  The decision in Federal Trade

Commission v. Cement Institute, 333 U.S. 683, 708-709, is precisely in

point, and is controlling.



What we have said we think also disposes of petitioner's contention that

the trial court should have instructed the jury that certain evidentiary

or subordinate issues must be taken as conclusively determined in his

favor.  The argument is that the determinations made in the Schneiderman

case are not wholly irrelevant to this case, even if they do not

conclude it, and hence that petitioner should be entitled to an

instruction giving those determinations such partial conclusive effect

as they might warrant.  We think, however, that the doctrine [354 U.S.

338] of collateral estoppel does not establish any such concept of

"conclusive evidence" as that contended for by petitioner.  The normal

rule is that a prior judgment need be given no conclusive effect at all

unless it establishes one of the ultimate facts in issue in the

subsequent proceeding.  So far as merely evidentiary or "mediate" facts

are concerned, the doctrine of collateral estoppel is inoperative.  The

Evergreens v. Nunan, 141 F.2d 927; Restatement, Judgments  68, comment

p.  Whether there are any circumstances in which the giving of limiting

instructions such as those requested here might be necessary or proper

we need not now determine.  Cf. Bordonaro Bros. Theatres, Inc. v.

Paramount Pictures, Inc., 203 F.2d 676, 678.  It is sufficient for us to

hold that, in this case, the matters of fact and mixed fact and law

necessarily determined by the prior judgment, limited as they were to

the year 1927, were so remote from the issues as to justify their

exclusion from evidence in the discretion of the trial judge.



Since there must be a new trial, we have not found it necessary to deal

with the contentions of the petitioners as to the fairness of the trial

already held.  The judgment of the Court of Appeals is reversed, and the

case remanded to the District Court for further proceedings consistent

with this opinion.



It is so ordered. BURTON, J., concurring



MR. JUSTICE BURTON, concurring in the result.



I agree with the result reached by the Court, and with the opinion of

the Court except as to its interpretation of the term "organize" as used

in the Smith Act.  As to that, I agree with the interpretation given it

by the Court of Appeals.  225 F.2d 146.



MR. JUSTICE BRENNAN and MR. JUSTICE WHITTAKER took no part in the

consideration or decision of this case. [354 U.S. 339] BLACK, J.,

concurring and dissenting



MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring in

part and dissenting in part. I



I would reverse every one of these convictions, and direct that all the

defendants be acquitted.  In my judgment, the statutory provisions on

which these prosecutions are based abridge freedom of speech, press and

assembly in violation of the First Amendment to the United States

Constitution.  See my dissent and that of MR. JUSTICE DOUGLAS in Dennis

v. United States, 341 U.S. 494, 579, 581.  Also see my opinion in

American Communications Assn. v. Douds, 339 U.S. 382, 445.



The kind of trials conducted here are wholly dissimilar to normal

criminal trials.  Ordinarily, these "Smith Act" trials are prolonged

affairs lasting for months.  In part, this is attributable to the

routine introduction in evidence of massive collections of books,

tracts, pamphlets, newspapers, and manifestoes discussing Communism,

Socialism, Capitalism, Feudalism and governmental institutions in

general, which, it is not too much to say, are turgid, diffuse,

abstruse, and just plain dull.  Of course, no juror can or is expected

to plow his way through this jungle of verbiage.  The testimony of

witnesses is comparatively insignificant.  Guilt or innocence may turn

on what Marx or Engels or someone else wrote or advocated as much as a

hundred or more years ago.  Elaborate, refined distinctions are drawn

between "Communism," "Marxism," "Leninism," "Trotskyism," and

"Stalinism."  When the propriety of obnoxious or unorthodox views about

government is in reality made the crucial issue, as it must be in cases

of this kind, prejudice makes conviction inevitable except in the rarest

circumstances. [354 U.S. 340] II



Since the Court proceeds on the assumption that the statutory provisions

involved are valid, however, I feel free to express my views about the

issues it considers.



First. -- I agree with Part I of the Court's opinion, that deals with

the statutory term, "organize" and holds that the organizing charge in

the indictment was barred by the three-year statute of limitations.



Second. -- I also agree with the Court insofar as it holds that the

trial judge erred in instructing that persons could be punished under

the Smith Act for teaching and advocating forceful overthrow as an

abstract principle.  But, on the other hand, I cannot agree that the

instruction which the Court indicates it might approve is

constitutionally permissible.  The Court says that persons can be

punished for advocating action to overthrow the Government by force and

violence where those to whom the advocacy is addressed are urged "to do

something, now or in the future, rather than merely to believe in

something."  Under the Court's approach, defendants could still be

convicted simply for agreeing to talk, as distinguished from agreeing to

act.  I believe that the First Amendment forbids Congress to punish

people for talking about public affairs, whether or not such discussion

incites to action, legal or illegal.  See Meiklejohn, Free Speech and

Its Relation to Self-Government.  Cf. Chafee, Book Review, 62

Harv.L.Rev. 891.  As the Virginia Assembly said in 1785, in its "Statute

for Religious Liberty," written by Thomas Jefferson, it is time enough

for the rightful purposes of civil government for its officers to

interfere when principles break out into overt acts against peace and

good order. . . .*  Cf. Giboney v. Empire Storage & Ice Co., 336 U.S.

490,  Labor [354 U.S. 341] Board v. Virginia Electric & P. Co., 314 U.S.

469, 476-480; Virginia Electric & P. Co. v. Labor Board, 319 U.S. 533,

539.



Third. -- I also agree with the Court that petitioners, Connelly,

Kusnitz, Richmond, Spector, and Steinberg, should be ordered acquitted,

since there is no evidence that they have ever engaged in anything but

"wholly lawful activities."  But, in contrast to the Court, I think the

same action should also be taken as to the remaining nine defendants. 

The Court's opinion summarizes the strongest evidence offered against

these defendants.  This summary reveals a pitiful inadequacy of proof to

show beyond a reasonable doubt that the defendants were guilty of

conspiring to incite persons to act to overthrow the Government.  The

Court says: In short, while the record contains evidence of little more

than a general program of educational activity by the Communist Party

which included advocacy of violence as a theoretical matter, we are not

prepared to say, at this stage of the case, that it would be impossible

for a jury, resolving all conflicts in favor of the Government and

giving the evidence as to these San Francisco and Los Angeles episodes

its utmost sweep, to find that advocacy of action was also engaged in

when the group involved was thought particularly trustworthy, dedicated,

and suited for violent tasks.



It seems unjust to compel these nine defendants, who have just been

through one four-month trial, to go through the ordeal of another trial

on the basis of such flimsy evidence.  As the Court's summary

demonstrates, the evidence introduced during the trial against these

defendants was insufficient to support their conviction.  Under such

circumstances, it was the duty of the trial judge to direct a verdict of

acquittal.  If the jury had [354 U.S. 342] been discharged so that the

Government could gather additional evidence in an attempt to convict,

such a discharge would have been a sound basis for  plea of former

jeopardy in a second trial.  See Wade v. Hunter, 336 U.S. 684, and cases

cited there.  I cannot agree that "justice" requires this Court to send

these cases back to put these defendants in jeopardy again in violation

of the spirit, if not the letter, of the Fifth Amendment's provision

against double jeopardy.



Fourth. -- The section under which this conspiracy indictment was

brought, 18 U.S.C.  371, requires proof of an overt act done "to effect

the object of the conspiracy."  Originally, 11 such overt acts were

charged here.  These 11 have now dwindled to 2, and, as the Court says:

Each was a public meeting held under Party auspices at which speeches

were made by one or more of the petitioners extolling leaders of the

Soviet Union and criticizing various aspects of the foreign policy of

the United States.  At one of the meetings ,an appeal for funds was

made.  Petitioners contend that these meetings do not satisfy the

requirement of the statute that there be shown an act done by one of the

conspirators "to effect the object of the conspiracy."  The Government

concedes that nothing unlawful was shown to have been said or done at

these meetings, but contends that these occurrences nonetheless sufficed

as overt acts under the jury's findings. The Court holds that attendance

at these lawful and orderly meetings constitutes an "overt act"

sufficient to meet the statutory requirements.  I disagree.



The requirement of proof of an overt act in conspiracy cases is no mere

formality, particularly in prosecutions like these, which, in many

respects are akin to trials for treason.  Article III,  3, of the

Constitution provides [354 U.S. 343] that No Person shall be convicted

of Treason unless on the Testimony of two Witnesses to the same overt

Act, or on Confession in open Court. One of the objects of this

provision was to keep people from being convicted of disloyalty to

government during periods of excitement, when passions and prejudices

ran high, merely because they expressed "unacceptable" views.  See

Cramer v. United States, 325 U.S. 1, 48.  The same reasons that make

proof of overt acts so important in treason cases apply here.  The only

overt act which is now charged against these defendants is that they

went to a constitutionally protected public assembly where they took

part in lawful discussion of public questions, and where neither they

nor anyone else advocated or suggested overthrow of the United States

Government.  Many years ago, this Court said that The very idea of a

government, republican in form, implies a right on the part of its

citizens to meet peaceably for consultation in respect to public affairs

and to petition for a redress of grievances. United States v.

Cruikshank, 92 U.S. 542, 552.  And see De Jonge v. Oregon, 299 U.S. 353,

  In my judgment, defendants' attendance at these public meetings cannot

be viewed as an overt act to effectuate the object of the conspiracy

charged. III



In essence, petitioners were tried upon the charge that they believe in

and want to foist upon this country a different, and, to us, a

despicable, form of authoritarian government in which voices criticizing

the existing order are summarily silenced.  I fear that the present type

of prosecutions are more in line with the philosophy of authoritarian

government than with that expressed by our First Amendment.



Doubtlessly, dictators have to stamp out causes and beliefs which they

deem subversive to their evil regimes.  [354 U.S. 344] But governmental

suppression of causes and beliefs seems to me to be the very antithesis

of what our Constitution stands for.  The choice expressed in the First

Amendment in favor of free expression was made against a turbulent

background by men such as Jefferson, Madison, and Mason -- men who

believed that loyalty to the provisions of this Amendment was the best

way to assure a long life for this new nation and its Government. 

Unless there is complete freedom for expression of all ideas, whether we

like them or not, concerning the way government should be run and who

shall run it, I doubt if any views, in the long run, can be secured

against the censor.  The First Amendment provides the only kind of

security system that can preserve a free government -- one that leaves

the way wide open for people to favor, discuss, advocate, or incite

causes and doctrines however obnoxious and antagonistic such views may

be to the rest of us. CLARK, J., dissenting



MR. JUSTICE CLARK, dissenting.



The petitioners, principal organizers and leaders of the Communist Party

in California, have been convicted for a conspiracy covering the period

1940 to 1951.  They were engaged in this conspiracy with the defendants

in Dennis v. United States, 341 U.S. 494 (1951).  The Dennis defendants,

named as coconspirators but not indicted with the defendants here, were

convicted in New York under the former conspiracy provisions of the

Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.)  11.  They have served or

are now serving prison terms as a result of their convictions.



The conspiracy charged here is the same as in Dennis, except that here

it is geared to California conditions, and brought, for the period 1948

to 1951, under the general conspiracy statute, 18 U.S.C.  371, rather

than the old conspiracy section of the Smith Act.  The indictment [354

U.S. 345] charges petitioners with a conspiracy to violate two sections

of the Smith Act, as recodified in 18 U.S.C.  2385, by knowingly and

willfully (1) teaching and advocating the violent overthrow of the

Government of the United States, and (2) organizing in California

through the creation of groups, cells, schools, assemblies of persons,

and the like, the Communist Party, a society which teaches or advocates

violent overthrow of the Government.



The conspiracy includes the same group of defendants as in the Dennis

case, though petitioners here occupied a lower echelon in the party

hierarchy.  They nevertheless served in the same army and were engaged

in the same mission.  The convictions here were based upon evidence

closely paralleling that adduced in Dennis and in United States v.

Flynn, 216 F.2d 354 (C.A.2d Cir.1954), both of which resulted in

convictions.  This Court laid down in Dennis the principles governing

such prosecutions, and they were closely adhered to here, although the

nature of the two cases did not permit identical handling.



I would affirm the convictions.  However, the Court has freed five of

the convicted petitioners and ordered new trials for the remaining nine.

 As to the five, it says that the evidence is "clearly insufficient."  I

agree with the Court of Appeals, the District Court, and the jury that

the evidence showed guilt beyond a reasonable doubt.  It paralleled that

in Dennis and Flynn, and was [354 U.S. 346] equally as strong.  In any

event, this Court should not acquit anyone here.  In its long history, I

find no case in which an acquittal has been ordered by this Court solely

on the facts.  It is somewhat late to start in now usurping the function

of the jury, especially where new trials are to be held covering the

same charges.  It may be -- although, after today's opinion ,it is

somewhat doubtful -- that, under the new theories announced by the Court

[354 U.S. 347] for Smith Act prosecutions sufficient evidence might be

available on remand.  To say the least, the Government should have an

opportunity to present its evidence under these changed conditions.



I cannot agree that half of the indictment against the remaining nine

petitioners should be quashed as barred by the statute of limitations. 

I agree with my Brother BURTON that the Court has incorrectly

interpreted the [354 U.S. 348] term "organize" as used in the Smith Act.

 The Court concludes that the plain words of the Act, "Whoever organizes

or helps or attempts to organize any society, group, or assembly of

persons" (emphasis added) embodies only those "acts entering into the

creation of a new organization."  As applied to the Communist Party, the

Court holds that it refers only to the reconstitution of the Party in

1945, and a part of the prosecution here is therefore barred by the

three-year statute of limitations.  This construction frustrates the

purpose of the Congress, for the Act was passed in 1940 primarily to

curb the growing strength and activity of the Party.  Under such an

interpretation, all prosecution would have been barred at the very time

of the adoption of the Act, for the Party was formed in 1919.  If the

Congress had been concerned with the initial establishment of the Party,

it would not have used the words "helps or attempts," nor the phrase

"group, [354 U.S. 349] or assembly of persons."  It was concerned with

the new Communist fronts, cells, schools, and other groups, as well as

assemblies of persons, which were being created nearly every day under

the aegis of the Party to carry on its purposes.  This is what the

indictment here charges and the proof shows beyond doubt was, in fact,

done.  The decision today prevents for all time any prosecution of Party

members under this subparagraph of the Act.



While the holding of the Court requires a reversal of the case and a

retrial, the Court very properly considers the instructions given by the

trial judge.  I do not agree with the conclusion of the Court regarding

the instructions, but I am highly pleased to see that it disposes of

this problem, so that, on the new trial, instructions will be given that

will at least meet the views of the Court.  I have studied the section

of the opinion concerning the instructions, and, frankly, its "artillery

of words" leaves me confused as to why the majority concludes that the

charge as given was insufficient.  I thought that Dennis merely held

that a charge was sufficient where it requires a finding that the Party

advocates the theory that there is a duty and necessity to overthrow the

Government by force and violence. . . . , not as a prophetic insight or

as a bit of . . . speculation, but as a program for winning adherents

and as a policy to be translated into action as soon as the

circumstances permit.  341 U.S. at (concurring opinion).  I notice

however that, to the majority, The essence of the Dennis holding was

that indoctrination of a group in preparation for future violent action,

as well as exhortation to immediate action, by advocacy found to be

directed to "action for the accomplishment" of forcible overthrow, to

violence "as a rule or principle of action," and employing "language of

incitement," id. at  is not constitutionally protected when the group is

of sufficient [354 U.S. 350] size and cohesiveness, is sufficiently

oriented towards action, and other circumstances are such as reasonably

to justify apprehension that action will occur. I have read this

statement over and over, but do not seem to grasp its meaning, for I see

no resemblance between it and what the respected Chief Justice wrote in

Dennis, nor do I find any such theory in the concurring opinions.  As I

see it, the trial judge charged, in essence, all that was required under

the Dennis opinions, whether one takes the view of the Chief Justice or

of those concurring in the judgment.  Apparently what disturbs the Court

now is that the trial judge here did not give the Dennis charge,

although both the prosecution and the defense asked that it be given. 

Since he refused to grant these requests, I suppose the majority feels

that there must be some difference between the two charges, else the one

that was given in Dennis would have been followed here.  While there may

be some distinctions between the charges, as I view them, they are

without material difference.  I find, as the majority intimates, that

the distinctions are too "subtle and difficult to grasp."



However, in view of the fact that the case must be retried regardless of

the disposition made here on the charges, I see no reason to engage in

what becomes nothing more than an exercise in semantics with the

majority about this phase of the case.  Certainly, if I had been sitting

at the trial I would have given the Dennis charge, not because I

consider it any more correct, but simply because it had the stamp of

approval of this Court.  Perhaps this approach is too practical.  But I

am sure the trial judge realizes now that practicality often pays.



I should perhaps add that I am in agreement with the Court in its

holding that petitioner Schneiderman can find no aid from the doctrine

of collateral estoppel. Footnotes HARLAN, J., lead opinion (Footnotes)



* Together with No. 7, Schneiderman v. United States, and No. 8,

Richmond et al. v. United States, also on certiorari to the same Court.



1. The Smith Act, as enacted in 1940, provided in pertinent part as

follows:



SEC. 2.  (a) It shall be unlawful for any person --



(1) to knowingly or willfully advocate, abet, advise, or teach the duty,

necessity, desirability, or propriety of overthrowing or destroying any

government in the United States by force or violence . . . ;



(2) with the intent to cause the overthrow or destruction of any

government in the United States, to print, publish, edit, issue,

circulate, sell, distribute, or publicly display any written or printed

matter advocating, advising, or teaching the duty, necessity,

desirability, or propriety of overthrowing or destroying any government

in the United States by force or violence;



(3) to organize or help to organize any society, group, or assembly of

persons who teach, advocate, or encourage the overthrow or destruction

of any government in the United States by force or violence; or to be or

become a member of, or affiliate with, any such society, group, or

assembly of persons, knowing the purposes thereof. *    *    *    *



SEC. 3. It shall be unlawful for any person to attempt to commit, or to

conspire to commit, any of the acts prohibited by the provisions of this

title. *    *    *    *



SEC. 5.  (a) Any person who violates any of the provisions of this title

shall, upon conviction thereof, be fined not more than $10,000 or

imprisoned for not more than ten years, or both.



Effective September 1, 1948, the Smith Act was repealed, and

substantially reenacted as 18 U.S.C.  2385, as part of the 1948

recodification.  62 Stat. 808.  Section 2385 provided in pertinent part

as follows:



Whoever knowingly or willfully advocates, abets, advises, or teaches the

duty, necessity, desirability, or propriety of overthrowing or

destroying the government of the United States . . . by force or

violence . . . ; or



Whoever, with intent to cause the overthrow or destruction of any such

government, prints, publishes, edits, issues, circulates, sells,

distributes, or publicly displays any written or printed matter

advocating, advising, or teaching the duty, necessity, desirability, or

propriety of overthrowing or destroying any government in the United

States by force or violence . . . ; or



Whoever organizes or helps or attempts to organize any society, group,

or assembly of persons who teach, advocate, or encourage the overthrow

or destruction of any such government by force or violence; or becomes

or is a member of, or affiliates with, any such society, group, or

assembly of persons, knowing the purposes thereof --



Shall be fined not more than $10,000 or imprisoned not more than ten

years, or both. . . .



For convenience, the original Smith Act and  2385 will both be referred

to in this opinion as "the Smith Act."



It will be noted that the recodification did not carry into  2385 the

conspiracy section of the Smith Act ( 3).  The latter provision,

however, was in substance restored to  2385 on July 24, 1956, to apply

to offenses committed on or after that date.  70 Stat. 623.



The conspiracy charged in this case was laid under  3 of the Smith Act

for the period 1940 to September 1, 1948, and for the period thereafter,

down to the filing of the indictment in 1951, under the general

conspiracy statute, 18 U.S.C.  371, providing in pertinent part as

follows:



If two or more persons conspire . . . to commit any offense against the

United States, . . . and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not more than

$10,000 or imprisoned not more than five years, or both.



2. We find it unnecessary to consider the petitioners' contention with

respect to the District Court's alleged failure to apply the "clear and

present danger" rule, as well as the contention that their motions for a

new trial and a continuance were erroneously denied.



3. See note 1, supra, at



4. Except where otherwise indicated, throughout this opinion, "Communist

Party" refers to the present Communist Party of the United States.



5. It is not disputed that the Communist Party, as referred to in the

indictment, came into being no later than July, 1945, when the Communist

Political Association was disbanded and reconstituted as the Communist

Party of the United States.  The original Party was founded in this

country in 1919.



6. 62 Stat. 828, 18 U.S.C.  3282.



7. Both petitioners and the Government cite the following definitions of

"organize" from Webster's New International Dictionary (2d ed.):



1. To furnish with organs; to give an organic structure to. . . .  2. To

arrange or constitute in interdependent parts, each having a special

function, act, office, or relation with respect to the whole; to

systematize; to get into working order; as, to organize an army; to

organize recruits. The Government also gives us the following from Funk

& Wagnall's New Standard Dictionary (1947):



1. To bring into systematic connection and cooperation as parts of a

whole, or to bring the various parts of into effective correlation and

cooperation; as, to organize the peasants into an army. And petitioners

cite Black's Law Dictionary, as follows: To establish or furnish with

organs; to systematize; to put into working order; to arrange in order

for the normal exercise of its appropriate functions.



8. Representative John W. McCormack, one of the leading proponents of

the Smith Act, stated before the Subcommittee of the Committee on the

Judiciary, House of Representatives: And, by the way, this bill is not

alone aimed at Communists; this bill is aimed at anyone who advocates

the overthrow of Government by violence and force. Hearing before

Subcommittee No. 2 of the House Committee on the Judiciary on H.R. 4313

and H.R. 6427, 74th Cong., 1st Sess., May 22, 1935, Serial 5, p. 3.



9. Id., passim.



10. The "organizing" section, supra, n. 1, also makes it an offense "to

be or become a member of, or affiliate with, any such society, group, or

assembly of persons, knowing the purposes thereof."



11. Cal.Stat. 1919, c. 188, West's Ann. Cal.Codes, Penal Code,  11401.



12. See People v. Thurman, 62 Cal.App. 147, 216 P. 394; People v.

Thornton, 63 Cal.App. 724, 219 P. 1020; People v. Ware, 67 Cal.App. 81,

226 P. 956.



13. N.Y.Laws 1902, c. 371, McKinney's N.Y.Laws, Penal Law,  161.



14. In other contexts, state courts have given the term that meaning. 

See State ex rel. Childs v. School District, 54 Minn. 213, 55 N.W. 1122;

Whitmire v. Cass, 213 S.C. 230, 236, 49 S.E.2d 1, 3; Warren v. Barber

Asphalt Pav. Co., 115 Mo. 572, 576-577, 22 S.W. 490-491; Commonwealth v.

Wm. Mann Co., 150 Pa. 64, 70, 24 A. 601, 602.



15. Following the decision of the Court of Appeals for the Ninth Circuit

in this case, "organize" has been given its wider meaning by two

District Courts in that circuit, United States v. Fujimoto, reported on

another point, 107 F.Supp. 865, and United States v. Huff, as yet

unreported, now pending on appeal to the Court of Appeals.  The Court of

Appeals for the Sixth Circuit, following the Ninth Circuit, has likewise

given the term its broader meaning.  Wellman v. United States, 227 F.2d

757.



16. The trial court did no more on this score than to charge, in the

language of the indictment, that the conspiracy had two objects, namely,

to advocate and teach forcible overthrow and to organize the Communist

Party as a vehicle for that purpose, and then instruct the jury that it

must find that "the conspiracy charged in the indictment" had been

proved beyond a reasonable doubt.



17. Of the 23 overt acts charged, 20 alleged attendance of various

defendants at meetings or conventions, and 3 alleged the issuance and

circulation of "directives" by certain of the defendants.  Only two of

the acts alleged were proved.  Both were Party meetings unmarked by any

advocacy of the type that the petitioners were allegedly conspiring to

promote.



18. The trial court charged:



As used in the Smith Act and the indictment:



(1) the word "advocate" means to urge or "to plead in favor of; . . . to

support, vindicate, or recommend publicly . . . ";



(2) the word "teach" means "to instruct . . . show how . . . to guide

the studies of . . . "; *    *    *    *



The holding of a belief or opinion does not constitute advocacy or

teaching.  Hence, the Smith Act does not prohibit persons who may

believe that the violent overthrow and destruction of the Government of

the United States is probable or inevitable from expressing that belief.

 Whether such belief be reasonable or unreasonable is immaterial. 

Prediction or prophecy is not advocacy.



Any advocacy or teaching which does not include the urging of force and

violence as the means of overthrowing and destroying the Government of

the United States is not within the issue of the indictment here, and

can constitute no basis for any finding against the defendants.



The kind of advocacy and teaching which is charged and upon which your

verdict must be reached is not merely a desirability, but a necessity

that the Government of the United States be overthrown and destroyed by

force and violence, and not merely a propriety, but a duty to overthrow

and destroy the Government of the United States by force and violence. *

   *    *    *



The word "willfully," as used in the indictment, means a statement or

declaration made or other act done with the specific intent to cause or

bring about the overthrow and destruction of the Government of the

United States by force and violence as speedily as circumstances would

permit.



The defendants, in common with all other persons living under our

Constitution, have a general right protected by the First Amendment to

hold, express, teach and advocate opinions, even though their opinions

are rejected by the overwhelming majority of the American people, and

have the further right to organize or combine peaceably with other

persons for the purpose of spreading and promoting their opinions more

effectively.



Whether you agree with these opinions or whether they seem to you

reasonable, unreasonable, absurd, distasteful or hateful has no bearing

whatever on the right of other persons to maintain them and to seek to

persuade others of their validity.



No inference that any of the defendants knowingly and willfully

conspired as charged in the indictment, or intended to cause or bring

about the overthrow and destruction of the Government of the United

States by force and violence as speedily as circumstances would permit,

may be drawn from the advocacy or teaching of socialism or other

economic or political or social doctrines, by reason of any unpopularity

of such doctrines or by reason of any opinion you may hold with respect

to whether such doctrines, or the opinions or beliefs of any of the

defendants, are unreasonable, distasteful, absurd or hateful.



The defendants, in common with other persons living under our

Constitution, have the right protected by the First Amendment to

criticize our system of Government and the Government itself, even

though the speaking or writing of such criticism may undermine

confidence in the Government or cause or increase discontent.  They have

the right also to criticize the foreign policy of the United States and

the role being played by this country in international affairs, and to

praise the foreign policy of other governments and the role being played

by those governments in international affairs.



The right of the defendants to enjoy such freedom of expression is

unaffected by whether or not the opinions spoken or published may seem

to you to be crudely intemperate, or to contain falsehoods, or to be

designed to embarrass the Government.  No inference of conspiracy to

advocate and teach the necessity and duty of overthrow and destruction

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

intent to cause or bring about the overthrow and destruction of the

Government of the United States by force and violence as speedily as

circumstances would permit, may be drawn from such expressions alone.



19. Petitioners' proposed instructions were:



Where the Smith Act, the statute which these defendants are charged with

conspiring to violate, speaks of advocating and teaching the duty and

necessity of overthrowing the Government by force and violence, this

refers only to statements which, in the language of incitement to

action, urge immediate action to overthrow the then existing government

under the then existing circumstances.  A statement, on the other hand,

that, if our form of government should change in the future, violent

overthrow of the government would then become necessary and right, is

not within the Smith Act's prohibition, and would not constitute any

basis for a finding against the defendants here. *    *    *    *



For purposes of this trial, a person can be said to teach or advocate

the overthrow and destruction of the Government of the United States by

force and violence only when his expressions are designed to induce

action, rather than discussion or belief, and only when they are

expressed in language which, under the circumstances in which it is

used, is reasonably and ordinarily calculated to incite persons to such

action, rather than merely to discussion or belief. *    *    *    *



The burden is on the prosecution to show beyond a reasonable doubt that

a common understanding existed among the alleged coconspirators as to

the specific content of expressions amounting to advocacy of the

overthrow and destruction of the Government by force and violence.  The

Government must further show that this understanding included an

understanding that such advocacy would be in language amounting to

incitement to action, and that it would take place under circumstances

such as to lead to a probability that it would inspire persons to take

action toward violent overthrow.



The Government's burden is not met by proof that the defendant shared

certain beliefs and made joint efforts to persuade other persons to

adopt them, no matter what you may find the content of such beliefs to

have been, or whether you may agree or disagree with such beliefs. The

Government's proposed instruction was:



In further construction and interpretation of the statute, I charge you

that it is not the abstract doctrine of overthrowing or destroying

organized government by unlawful means which is denounced by this law,

but the teaching and advocacy of action for the accomplishment of that

purpose, by language reasonably and ordinarily calculated to incite

persons to such action.  Accordingly, you cannot find the defendants or

any of them guilty of the crime charged unless you are satisfied beyond

a reasonable doubt that they conspired to organize a society, group and

assembly of persons who teach and advocate the overthrow or destruction

of the Government of the United States by force and violence and to

advocate and teach the duty and necessity of overthrowing or destroying

the Government of the United States by force and violence, with the

intent that such teaching and advocacy be of a rule or principle of

action, and by language reasonably and ordinarily calculated to incite

persons to such action, all with the intent to cause the overthrow or

destruction of the Government of the United States by force and violence

as speedily as circumstances would permit.



20. The Government's proposed instruction was that given by the trial

court in the Dennis case, 341 U.S. 494.  See p. 326, infra.



21. Having stated that all advocacy and teaching of forcible overthrow

of Government was punishable "whether it is language of incitement or

not," so long as it was done with the requisite intent, the court added,

It seems to me this question of "incitement to" is involved around the

question of sufficiency of evidence to indicate intent.  The language

used is language of philosophy and theory and academic treatment, rather

than language . . . [of] "incitement to action."  If the jury should

convict on that sort of language, [the] argument would be the evidence

was insufficient to sustain the conviction . . . .



22. For discussion of the principal cases in this Court on the subject,

see the several opinions in Dennis v. United States, supra.



23. The New York Criminal Anarchy Act, note 13, supra.



24. See Dennis v. United States, supra, at 541.



25. Hearings on H.R. 4313 and H.R. 6427, May 22, 1935, at pp. 5, 6,

cited in note 8, supra.



26. At the hearing cited in note 8, supra, Representative McCormack

repeatedly emphasized that the proscribed advocacy was inciting

advocacy.  For example, he stated:  ". . . the word `advocacy' means `in

a manner to incite,' as construed by the Supreme Court in the Gitlow

case. . . ."  (P. 5.) . . .  Government has a right to make it a crime

for a person to use language specifically inciting to the commission of

illegal acts. . . .  [I]t is advocacy in the manner to incite, knowingly

to advocate in a manner to incite to the overthrow of the Government. .

. . (P. 15.)  See also pp. 4, 8, 11.



27. See p. 326, infra.



28. See United States v. Schneiderman, 106 F.Supp. 906, 923.



29. The writ of certiorari in Dennis did not bring up the sufficiency of

the evidence.  340 U.S. 863.



30. See note 1, supra.



31. The Court of Appeals stated, 225 F.2d at 151:



Finally [referring to Dennis], the opinion of the Court of Appeals and a

concurring opinion in the Supreme Court gave approval of instructions of

the trial judge in Dennis requiring the jury to find "language of

incitement" was used by the conspirators there.  Another phrase given

approval is that the doctrine of destruction had become a "rule of

action."  In conjunction with an indictment based upon such a statute

proscribing organization for the purpose of teaching and advocating

overthrow, but which required neither proof of overt acts nor a

specifically planned objective, such precautionary instructions were

well enough.  But these expressions of the judges in instructions in

connection with the original statute established no unalterable

requirement that such phrases themselves be used ipsissimis verbis where

the changes in the basic law and an entirely different indictment

predicated upon the conspiracy statute have rendered admonitions to a

jury in such language supererogatory. And further, at p. 162:



The gist of the substantive crime of conspiracy is that an unlawful

combination and agreement becomes a positive crime only when some of the

proved conspirators enter the field of action pursuant to the criminal

design.  Therefore, if the conspiracy did not become a rule of action

pursuant to the proscribed intent, there would have been no violation of

the conspiracy statute.  The use of such phrases [as incitement] in

instructions might have been well enough where a violation of the Smith

Act alone was charged in its original form.  It would be folly to

command imperatively that these specific phrases be each used in

instructions after a trial on an indictment such as the present one. It

may also be noted that, for the period 1940 to September 1, 1948 (see

note 1, supra), the conspiracy charge here was laid under the old Smith

Act.



32. See pp. 317-318, supra.



33. See note 19, supra.



34. The record consists of some 14,000 typewritten pages.



35. 64 Stat. 987, 50 U.S.C.  783(f): 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.



36. While there was evidence that might tend to link petitioner Richmond

to "the conspiracy," i.e., evidence of association by him with other

petitioners, and with an individual who might be found by the jury to

have engaged during the same period in the proscribed advocacy, see pp. 

infra we think that, without more, such evidence would not justify

refusal to direct an acquittal. BLACK, J., concurring and dissenting

(Footnotes)



* 12 Hening's Stat. (Virginia 1823), c. 34, p. 85. CLARK, J., dissenting

(Footnotes)



1. Petitioners Richmond, Connelly, Kusnitz, Steinberg, and Spector are

set free.



Richmond, at the time of his indictment, had for many years been the

editor-in-chief of the Daily People's World, the official organ of the

Party on the West Coast.  He had joined the Party in 1931, and received

his indoctrination in Communist technique at the offices of the Daily

Worker, the official Party paper on the East Coast.  In 1937, he was

chosen by the Party's Central Committee to be managing editor of the

Daily People's World, and was transferred to California.  From 1946

through 1948, he regularly attended secret meetings of the state and

county boards of the Party, admission to which was by identification

from a special list of Party members prepared by the Party chairman or

its security chief.  Party strategy was mapped out at "very secret

meetings" attended by Richmond and the core of the Party machinery,

including at least seven of the petitioners here.  Richmond served on a

special committee to help develop "preconvention discussion" with

petitioner Yates; he represented the state committee at the 1950

convention; he addressed many Party meetings preaching the "vanguard

role" of the Party and the importance of the People's World in the

Communist movement, and his articles in the paper urged the "Leninist

and Marxist approach."



Connelly, a Party member since at least 1938, was the Los Angeles editor

of the People's World.  During the mobilization effort early in World

War II, he devoted his efforts to "building up sentiment against . . .

the war effort" among steel, aircraft, and shipyard workers.  He

attended the same secret meetings attended by Richmond.



There can be no question that the proof sustained the charges against

Richmond and Connelly in the conspiracy.  Their newspaper was the

conduit through which the Party announced its aims, policies, and

decisions, sought its funds, and recruited its members.  It is the

height of naivete to claim that the People's World does not publish

appeals to its readers to follow Party doctrine in seeking the overthrow

of the Government by force, but it is stark reality to conclude that

such a publication provides an incomparable means of promoting the

Party's aim of forcible seizure when the time is ripe.



Petitioner Spector has been active in the California Party since the

early 1930's.  He taught "Marxism-Leninism" in Party schools and was

"division organizer" in Los Angeles County.  He attended "underground

meetings" with petitioners Lambert, Dobbs, Healy, Carlson, and

Schneiderman.  The witness Rosser testified that these meetings were "so

hid that you couldn't get to them unless you were invited and taken

there."  In 1946, he "conducted classes" for Party members in Hollywood,

and in 1947, as a member of a committee of three Party officials,

examined the witness Russell, a student in one of his classes, on

charges of being a Party "police spy."



Petitioner Kusnitz, following an organizational indoctrination period in

New York City, became a Party leader in California in 1946, served as

"section organizer," and later as "organizational secretary" in Los

Angeles.  Her position was directly below that of the local chairman in

Party hierarchy.  She attended many secret meetings, and was present at

a Party meeting with petitioner Yates when Yates advocated the necessity

of "Soviet support" and "Marxist-Leninist training" as a means of

bringing about the Soviet "type of government . . . all over the world."

 She contributed articles to Communist publications, and was very active

in the "regrouping of . . . clubs into smaller units"; conducting a "six

session leadership training seminar"; carrying on campaigns for

subscriptions to the People's World, and leading the "Party Building

drive" for the recruitment of members.



Petitioner Henry Steinberg, active in the Young Communist League, and

associated with the Party since 1936, was the "educational director." 

He took part in the creation of the program for the Party's training

schools in Los Angeles County.  His "education department" sponsored

several meetings, one honoring the 25th anniversary of the death of

Lenin.  He worked with petitioner Schneiderman, the Party Chairman in

California, attended meetings regularly, was active in circulation

drives for the People's World, and was the principal speaker at many

meetings.



2. 18 U.S.C.  2385.



3. Congressman McCormack's remarks on the floor of the House of

Representatives on July 29, 1939, during the debate on the Smith Act,

reflect the underlying purpose behind that Act.  He stated, inter alia:

We all know that the Communist movement has as its ultimate objective

the overthrow of government by force and violence or by any means, legal

or illegal, or a combination of both.  That testimony was indisputably

produced before the special committee of which I was chairman, and came

from the lips not of those who gave hearsay testimony, but of the actual

official records of the Communist Party of the United States, presented

to our committee by the executive secretary of the Communist Party and

the leader of the Communist Party in the United States, Earl Browder. .

. .  Therefore, a Communist is one who intends knowingly or willfully to

participate in any actions, legal or illegal, or a combination of both,

that will bring about the ultimate overthrow of our Government.  He is

the one we are aiming at. . . . (Emphasis added.) 84 Cong.Rec. 10454.

See also Hearings before Subcommittee No. 3 of the House Committee on

the Judiciary on H.R. 5138, 76th Cong., 1st Sess. 84.

