367 U.S.

203
81 S.Ct. 1469
6 L.Ed.2d 782

Junius Irving SCALES, Petitioner,

v.
UNITED STATES of America.
No. 1.
Reargued Oct. 10, 1960.
Decided June 5, 1961.
Rehearing Denied June 19, 1961.

See 366 U.S. 978, 81 S.Ct. 1912.

[Syllabus from pages 203-204 intentionally omitted]
Mr. Telford Taylor, New York City, for petitioner.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.

Our writ issued in this case (358 U.S. 917, 79 S.Ct. 289, 3 L.Ed.2d 237) to
review a judgment of the Court of Appeals (4 Cir., 260 F.2d 21) affirming
petitionr conviction under the so-called membership clause of the Smith Act.
18 U.S.C. 2385, 18 U.S.C.A. 2385. The Act, among other things, makes a
felony the acquisition or holding of knowing membership in any organization
which advocates the overthrow of the Government of the United States by
force or violence.1 The indictment charged that from January 1946 to the date
of its filing (November 18, 1954) the Communist Party of the United States
was such an organization, and that petitioner throughout that period was a
member thereof, with knowledge of the Party's illegal purpose and a specific
intent to accomplish overthrow 'as speedily as circumstances would permit.'

The validity of this conviction is challenged on statutory, constitutional, and

evidentiary grounds, and further on the basis of certain alleged trial and
procedural errors. We decide the issues raised upon the fullest consideration,

the case having had an unusually long history in this Court.2 For reasons given
in this opinion we affirm the Court of Appeals.
I.
3Statutory Challenge.
4

Petitioner contends that the indictment fails to state an offense against the
United States. The claim is that 4(f) of the Internal Security Act of 1950, 64
Stat. 987, 50 U.S.C. 781 et seq., 50 U.S.C.A. 781 et seq., constitutes a pro
tanto repeal of the membership clause of the Smith Act by excluding from the
reach of that clause membership in any Communist organization. Section 4(f)
provides:

'Neither the holding of office nor membership in any Communist organization

by any person shall constitute per se a violation of subsection (a) or subsection
(c) of this section or of any other criminal statute. The fact of the registration of
any person under section 7 or section 8 of this title as an officer or member of
any Communist organization shall not be received in evidence against such
person in any prosecution for any alleged violation of subsection (a) or
subsection (c) of this section or for any alleged violation of any other criminal
statute.'

To prevail in his contention petitioner must, of course, bring himself within the
first sentence of this provision, since the second sentence manifestly refers only
to exclusion from evidence of the fact of registration, thus assuming that a
prosecution may take place.

We turn first to the provision itself, and find that, as to petitioner's construction
of it, the language is at best ambiguous if not suggestive of a contrary
conclusion. Section 4(f) provides that membership or office-holding in a
Communist organization shall not constitute 'per se a violation of subsection (a)
or subsection (c) of this section or of any other criminal statute.' Petitioner
would most plainly be correct if the statute under which he was indicted
purported to proscribe membership in Communist organizations, as such, and to
punish membership per se in an organization engaging in proscribed advocacy.
But the membership clause of the Smith Act on its face, much less as we
construe it in this case, does not do this, for it neither proscribes membership in
Communist organizations, as such, but only in organizations engaging in
advocacy of violent overthrow, nor punishes membership in that kind of
organization except as to one 'knowing the purposes thereof,' and, as we have
interpreted the clause, with a specific intent to further those purposes (infra,

367 U.S. at pages 219222, 81 S.Ct. at pages 14811483). We have also held
that the proscribed membership must be active, and not nominal, passive or
theretical (infra, 367 U.S. at pages 222224, 81 S.Ct. at pages 14821484).
Thus the words of the first sentence of 4(f) by no means unequivocally
demand the result for which petitioner argues. When we turn from those words
to their context, both in the section as a whole and in the scheme of the Act of
which they are a part, whatever ambiguity there may be must be resolved, in
our view, against the petitioner's contention.
8

In the context of 4 as a whole, the first sentence of subsection (f) does not
appear to be a provisions repealing in whole or in part any other provision of
the Internal Security Act. Subsection (a) of 4 makes it a crime

'for any person knowingly to combine, conspire, or agree with any other person
to perform any act which would substantially contribute to the establishment
within the United States of a totalitarian dictatorship * * * the direction and
control of which is to be vested in, or exercised by or under the domination or
control of, any foreign government, foreign organization or foreign individual *
* *.'

10
Subsection
(c) makes it a crime for any officer or member of a 'Communist
organization' to obtain classified information. We should hesitate long before
holding that subsection (f) operates to repeal pro tanto either one of these provisions
which are found in the same section of which subsection (f) is a part; and indeed the
petitioner does not argue for any such quixotic result. The natural tendency of the
first sentence of subsection (f) as to the criminal provisions specifically mentioned is
to provide clarification of the meaning of those provisions, that is, that an offense is
not made out on proof of mere membership in a Communist organization. As to
these particularly mentioned criminal provisions immunity, such as there is, is
specifically granted in the second sentence only, where it is said that the fact of
registration shall not be admitted in evidence. Yet petitioner argues that when we
come to the last phrase of the first sentence, the tag 'or * * * any other criminal
statute,' the operative part of the sentence, 'membership * * * shall (not) constitute
per se a violation,' has an altogether different purport and effect. What operated as a
clarification and guide to construction to the specifically identified provisions is,
petitioner argues, a partial repealer as to the statutes referred to in the omnibus
clause at the end of the sentence.
11

It seems apparent from the foregoing that the language of 4(f) in its natural
import and context should not be taken to immunize members of Communist
organizations from the membership clause of the Smith Act, but rather as a
mandate to the courts charged with the construction of subsections (a) and (c)

'or * * * any other criminal statute' that neither those two named criminal
provisions nor any other shall be construed so as to make 'membership' in a
Communist organization 'per se a violation.' Indeed, as we read the first
sentence of 4(f), even if the membership clause of the Smith Act could be
taken as punishing naked Communist Party membership, it would then be our
duty under 4(f) to construe it in accordance with that mandate, certainly not to
strike it down. Although we think that the membership clause on its face goes
beyond making mere Party membership a violation, in that it requires a
showing both of illegal Party purposes and of a member's knowledge of such
purposes, we regard the first sentence of 4(f) as a clear warrant for construing
the clause as requiring not only knowing membership, but active and purposive
membership, purposive that is as to the organization's criminal ends. (Infra, 367
U.S. at pages 219244, 81 S.Ct. at pages 14811484.) By its terms, then,
subsection (f) does not effect a pro tanto repeal of the membership clause; at
most it modifies it.
12

Petitioner argues that if the 4(f) provision does not bar this prosecution under
the membership clause, then the phrase 'or of any other criminal statute'
becomes meaningless, for there is no other federal criminal statute that makes
this sort of membership a crime. But the argument assumes the answer. The
first sentence was intended to clarify, not repeal, 4(a) of the Internal Security
Act. By a parity of reasoning, its effect on 'any other criminal statute' is also
clarification, not repeal.

13

Petitioner's contentions do not stop, however, with the words of 4(f) itself.
The supposed partial repeal of the membership clause by that provision, it is
claimed, is a consequence of the latter's purpose in the whole scheme of the
Internal Security Act of 1950, as illuminated by its legislative history. The
argument runs as follows: The core of the Internal Security Act is its
registration provisions ( 7 and 8), requiring disclosure of membership in the
Communist Party following a valid final determination of the Subversive
Activities Control Board as to the status of the Party. See No. 12, ante, 367 U.S.
1, 81 S.Ct. 1357, 6 L.Ed.2d 625. The registration requirement would be
rendered nugatory by a plea of selfi ncrimination and could only be save by a
valid grant of immunity from prosecution by reason of any such disclosure.
However, the immunity provided by the second sentence of 4(f) is
insufficient, in that it forbids only the use of the 'fact of * * * registration' as
evidence in any future prosecution, and not also its employment as a 'lead' to
other evidence. See Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35
L.Ed. 1110; Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306.
Therefore to effectuate the congressional purpose it becomes necessary to
consider the first sentence of 4(f) a pro tanto repealer of the membership

clause of the Smith Act, thereby assuring effective immunity from the criminal
consequences of registration in this instance.
14

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

against constitutional attack, it must not and will not carry this to the point of
perverting the purpose of a statute. Certainly the section before us cannot be
construed as petitioner argues. The fact of registration may provide a significant
investigatory lead not only in prosecutions under the membership clause of the
Smith Act, but equally probably to prosecutions under 4(a) of the Internal
Security Act, let alone 4(c). Thus, if we accepted petitioner's argument that
4(f) must be read as a partial repealer of the membership clause, we would be
led to the extraordinary conclusion that Congress also intended to immunize
under 4(f) what it prohibited in these other subsections which it passed at the
same time. Furthermore, the thrust of petitioner's argument cannot be limited to
the membership clause, for it is equally applicable to any prosecution under any
of a host of criminal provisions where Communist Party membership might
provide an investigatory lead as to the elements of the crime.3 We cannot
attribute any such sweeping purpose to Congress on the basis of the attenuated
inference offered by petitioner.

15

Presented as we are with every indication in the statute itself that Congress had
no purpose to bar a prosecution such as this, we turn to the legislative history of
the Internal Security Act of 1950 to see if a different conclusion is indicated.

16

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

conceived by the House and the Senate to deal with the problem which is the
subject of the present Internal Security Act. Primarily, however, 4 is the result
of the Senate's efforts. In 1949 Senator Mundt reintroduced in the Senate a bill,
the Mundt-Nixon bill, which had died in committee the year before. S. 2311,
81st Cong., 1st Sess. The bill, which was referred to the Committee on the
judiciary, contained registration provisions similar to those in the present
statute, and a 4(a), a criminal provision identical to that of the present 4(a).
In response to an enquiry, the Committee received a letter from an eminent
lawyer, the late John W. Davis of New York, to the effect that although the
primary purpose of the bill appears to be 'ventilation rather than prohibition,'
there was a question whether 'mere membership in a Communist political
organization, which is * * * required to register (might) constitute an act such
as section 4(a) proscribes? If so,' the letter continued, 'is there not inherent
contradiction between these sections, and might not a person called on to
register as a member claim that he would involuntarily incriminate himself by
so doing?' (Emphasis supplied.) S. Rep. No. 1358, 81st Cong., 1st Sess., pp. 43
44. Thus, the Davis letter seemed to address is elf only to self-incrimination

under the proscriptions of 4(a), and only to the extent that the membership
disclosed by registration would without more constitute a violation of 4(a).
17

In response to this narrow objection the Committee drafted the predecessor of

the present 4(f). That section, also numbered 4(f), provided that:

18

'Neither the holding of office nor membership in any Communist organization

by any person shall constitute a violation of subsection (a) * * * of this section.
The fact of the registration of any person * * * shall not be received in evidence
against such person in any prosecution for any alleged violation of subsection
(a) * * *.' S. 2311, as amended.

19

The Committee in reporting the bill out to the Senate made it abundantly clear
that whatever objections might be made could, in its view, be overcome by the
clarification of 4(a) contained in 4(f), to wit: that 'mere membership in an
organization required to register is not an overt act such as to bring a person
within the prohibitions of section 4. This amendment was inserted to make
clear the intent of Congress that registration * * * was not evidence of a
violation of section 4 of the bill.' 4 (Emphasis supplied.) S. Rep. No. 1358,
supra, p. 2. To the drafters of the original version of the section, then, the
perforce limited immunity of the second sentence of 4(f) together with the
clarification of the meaning of 4(a) in the first sentence was adequate to deal
with the self-incrimination problem under 4(a), raised by the Davis letter.
There is no mention of the Smith Act or any other criminal statute as yet, but
the problem of the necessary scope of immunity is no different in relation to
4(a) than it would be to such other statutes.

20

The subsequent history of the section in the Senate reinforces the conclusion
that there was no intent to grant a broad immunity such as would meet the
reasoning of Counselman v. Hitchcock. The Mundt-Nixon bill was
incorporated in the body of an omnibus measure, the McCarran bill. S. 4037,
81st Cong., 2d Sess. When this bill was reported out to the Senate no further
mention was made in the majority report of the Judiciary Committee of the
sections under consideration. However, Senator Kilgore's minority report
squarely presented two questions as to the insufficiency of the immunity
provisions of 4(f): (1) that the immunity was inadequate to meet the
Counselman rule, and (2) that in any case there was no immunity of any sort
granted in respect of the Smith Act. S.Rep. No. 2369, 81st Cong., 2d Sess., Pt.
2, pp. 1213. These grounds were urged against the bill also in debate by its
opponents. Senator Humphrey read into the Record a 'brief' prepared by the
Justice Department which in effect restated the objections of the minority
report. 96 Cong.Rec. 14475, at 14479. Senator Lehman stated the same

objections, and also suggested that the membership clause of the Smith Act as
well as 4(a) made Communist membership per se a crime. This latter
contention was vigorously denied by the proponents of the measure.5 Thus, the
Senate passed its predecessor version of 4(f), even though it had had clearly
presented to it constitutional objections to that provision which are the same as
the objections petitioner now makes to a natural and lie ral reading of the
present statute. There was no immunity of any kind against Smith Act
prosecutions, and only limited immunity against prosecutions under the
comparable provisions of 4(a).
21

The history of the original House measure is likewise relevant to the issue
under consideration. That measure the Wood bill, which also provided for
regstration, contained no provision similar to 4(a), but did have a provision
similar to the prsent 4(c), forbidding members of Communist organizations
from obtaining classified information. H.R. 9490, 81st Cong., 2d Sess. The bill
included an immunity provision in the same subsection as the predecessor to
present 4(c), which declared that:

22

'* * * the fact of the registration of any person * * * shall not be received in
evidence against such person in any prosecution for any alleged violation * * *
of this section.'

23

Once again, the Wood bill demonstrates the same narrow view of the selfincrimination problem as was evidenced by the Senate bill. In debate
Congressmen Cller and Marcantonio, opposing the bill, pointed to the twofold
inadequacy of the immunity provision: its failure to meet Counselman, and its
not reachingo ther criminal statutes. 96 Cong.Rec. 1373913740. The House
responded to these objections by adding the words 'or for any alleged violation
of any other * * * criminal statute' at the end of the abovequoted provision. 96
Cong.Rec. 13761. It is, therefore, even clearer than in the case of the Senate's
action that there was no attempt to grant complete immunity or to repeal any
other statute at least as to prosecution of Communist Party members, since the
House's immunity provision in terms only dealt with the admission into
evidence of the fact of registration, having no provision comparable to the first
sentence of present 4(f). That there was no such provision may perhaps be
explained by the fact that there was no equivalent to 4(a) in need of
clarification.

24

In conference, the substance of the Senate bill was accepted by the conferees,
including the criminal provision of the present 4(a). The Senate version of
4(f) was amended to its present form by the addition of the House 'or any other
criminal statute' language to both the first and second sentences of the

subsection, and by the addition of 'per se' to the first sentence. Thus we are
asked by petitioner to hold that although neither House in its preconference bills
evidenced any purpose to repeal the Smith Act insofar as Communist Party
membership was concerned, let alone other possibly applicable statutes under
which registration as a Party member might produce an investigatory lead (see
note 3, supra), the amalgamation of these two bills was intended, though
without any notification by the conferees to either House in their conference
reports, to have this result. No does the addition of the words 'per se' advance
petitioner's argument. On its face the addition would seem simply to make
more explicit the clarifying purpose of the sentence. In its context of worries
that 4(a) or the Smith Act makes Communist membership per se criminal, and
of statements by the proponents of the bills that this was an unfounded fear as
to both provisions, the purely clarifying purpose of per se is apparent.
Furthermore, we are asked to attribute this purpose to the conferees, although
neither they nor the proponents of the measure as it finally emerged from
conference said a word about such an important departure from the original
purposes of the two Houses.6
25

Finally, it is worth noting that after the conference measure returned to the floor
of the Senate it was attacked by Senator Kefauver on precisely the same
grounds as had been urged againt it in both Houses prior to conference: that the
immunity conferred by the present 4(f) was too narrowly drawn to save the
registration provisions against an attack under Counselman. 96 Cong.Rec.
15198 15199. This same attack was renewed after the President's veto, which
was overridden by Congress.7 96 Cong.Rec. 1555315554.

26

The legislative history of 4(f), therefore, far from weakening the conclusion
flowing from analysis of the terms of the statute itself, fortifies that analysis at
every point. To conclude that Congress' desire to protect the registration
provisions of the Internal Security Act against pleas of self-incrimination
should prevail over its advertent failure to assure that result at the expense of
wiping out the membership clause of the Smith Act, as applied to Communists,
would require a disregard by this Court of the evidence congressional purpose.
Whatever may be the consequences of that failure upon the Internal Security
Act, we are concerned here solely with the question whether Congress by 4(f)
intended a partial repeal of the membership clause of the Smith Act. We
conclude that it did not and hold that this prosecution is not barred by 4(f) of
the Internal Security Act of 1950.

II.
27

Constitutional Challenge to the Membership Clause on its Face.

28

Petitioner's constitutional attack goes both to the statute on its face and as
applied. At this point we deal with the first aspect of the challenge and with one
part of its second aspect. The balance of the latter, which essentially concerns
the sufficiency of the evidence, is discussed in the next section of this opinion.

29

It will bring the constitutional issues into clearer focus to notice first the
premises on which the case was submitted to the jury. The jury was instructed
that in order to convict it must find that within the three-year limitations period8
(1) the Communist Party advocated the violent overthrow of the Government,
in the sense of present 'advocacy of action' to accomplish that end as soon as
circumstances wer propitious; and (2) petitioner was an 'active' member of the
Party, and not merely 'a nominal, passive, inactive or purely technical' member,
with knowledge of the Party's illegal advocacy and a specific intent to bring
about violent overthrow 'as speedily as circumstances would permit.'

30

The constitutional attack upon the membership clause, as thus construed, is that
the statute offends (1) the Fifth Amendment, 9 in that it impermissibly imputes
guilt to an individual merely on the basis of his associations and sympathies,
rather than because of some concrete personal involvement in criminal conduct;
and (2) the First Amendment,10 in that it infringes on free political expression
and association. Subsidiarily, it is argued that the statute cannot be intepreted as
including a requirement of a specific intent to accomplish violent overthrow, or
as requiring that membership in a proscribed organization must be 'active'
membership, in the absence of both or either of which it is said the statute
becomes a fortiori unconstitutional.11 It is further contended that even if the
adjective 'active' may properly be implied as a qualification upon the term
'member,' petitioner's conviction would nonetheless be unconstitutional,
because so construed the statute would be impermissibly vague under the Fifth
and Sixth Amendments,12 and so applied would in any event infringe the Sixth
Amendment, in that the indictment charged only that Scales was a 'member,'
not an 'active' member, of the Communist Party.

1. Statutory Construction.
31
32

Before reaching petitioner's constitutional claims, we should first ascertain

whether the membership clause permissibly bears the construction put upon it
below. We think it does.

33

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

proscribed was fully in accord with what was held in Yates v. United States,
354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356.13 And the statute itself requires
that a defendant must have knowledge of the organization's illegal advocacy.

34

The only two elements of the crime, as defined below, about which there is
controversy are therefore 'specific intent' and 'active' membership. As to the
former, this Court held in Dennis v. United States, 341 U.S. 494, 499500, 71
S.Ct. 857, 862, 95 L.Ed. 1137, that even though the 'advocacy' and 'organizing'
provisions of the Smith Act, unlike the 'literature' section (note 1, supra), did
not expressly contain such a specific intent element, such a requirement was
fairly to be implied. We think that the reasoning of Dennis applies equally to
the membership clause, and are left unpersuaded by the distinctions petitioner
seeks to draw between this clause and the advocacy and organizing provisions
of the Smith Act.

35

We find hardly greater difficulty in interpreting the membership clause to reach

only 'active' members. We decline to attribute to Congress a purpose to punish
nominal membership, even though accompanied by 'knowledge' and 'intent,' not
merely because of the close constitutional questions that such a purpose would
raise (cf. infra, 367 U.S. at page 228, 81 S.Ct. at page 1486; Yates, supra, 354
U.S. at page 319, 77 S.Ct. at page 1077), but also for two other reasons: It is not
o be lightly inferred that Congress intended to visit upon mere passive
members the heavy penalties imposed by the Smith Act.14 Nor can we assume
that it was Congress' purpose to allow the quality of the punishable membership
to be measured solely by the varying standards of that relationship as
subjectively viewed by different organizations. It is more reasonable to believe
that Congress contemplated an objective standard fixed by the law itself,
thereby assuring an evenhanded application of the statute.

36

This Court in passing on a similar provision requiring the deportation of aliens

who have become members of the Communist Partya provision which rested
on Congress' far more plenary power over aliens, and hence did not press nearly
so closely on the limits of constitutionality as this enactmenthad no difficulty
in interpreting 'membership' there as meaning more than the mere voluntary
listing of a person's name on Party rolls. Galvan v. Press, 347 U.S. 522, 74
S.Ct. 737, 98 L.Ed. 911; Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2
L.Ed.2d 140; see Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed.
2103. A similar construction is called for here.15

37

Petitioner's particular constitutional objections to this construction are

misconceived. The indictment was not defective in failing to charge that Scales
was an 'active' member of the Party, for that factor was not in itself a discrete
element of the crime, but an inherent quality of the membership element. As
such it was a matter not for the indictment, but for elucidating instructions to
the jury on what the term 'member' in the statute meant. Nor do we think that
the objection on the score of vagueness is a tenable one. The distinction

between 'active' and 'nominal' membership is well understood in common

parlance (cf. Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329,
96 L.Ed. 367; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed.
1877; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167), and the
point at which one shades into the other is something that goes not to the
sufficiency of the statute, but to the adequacy of the trial court's guidance to the
jury by way of instructions in a particular case. See note 29, infra. Moreover,
whatever abstract doubts might exist on the matter, this case presents no such
problem. For petitioner's actions on behalf of the Communist Party most
certainly amounted to active membership by whatever standards one could
reasonably anticipate, and he can therefore hardly be considered to have acted
unadvisedly on this score.
38

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

expected to anticipate a construction of the statute that included within its
elements activity and specific intent, and hence that he was not duly warned of
what the statute made cruiminal. It is, of course, clear that the lower courts'
construction was narrower, not broader, than the one for which petitioner
argues in defining the character of the forbidden conduct and that therefore,
according to petitioner's own construction, his actions were forbidden by the
statute. The contention must then be that petitioner had a right to rely on the
statute's, as he construed it, being held unconstitutional. Assuming, arguendo,
that petitioner's construction was not unreasonable, no more can be said than
that in light of the courts' traditional avoidance of constructions of dubious
constitutionality and in light of their role in construing the purpose of a statute
there were two ways one could reasonably anticipate this statute's being
construed, and that petitioner had clear warning that his actions were in
violation of both constructions. There is no additional constitutional
requirement that petitioner should be entitled to rely upon the statute's being
construed in such a way as possibly to render it unconstitutional. In sum, this
argument of a 'right' to a literal construction simply boils down to a claim that
the view of the statute taken below did violence to the congressional purpose.
Of course a litigant is always prejudiced when a court errs, but whether or not
the lower courts erred in their construction is an issue which can only be met on
its merits, and not by reference to a 'right' to a particular interpretation.

39

We hold that the statute was correctly interpreted by the two lower courts, and
now turn to petitioner's basic constitutional challenge.

2. Fifth Amendment.
40
41

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

on a status or on conduct can only be justified by reference to the relationship of

that status or conduct to other concededly criminal activity (here advocacy of
violent overthrow), that relationship must be sufficiently substantial to satisfy
the concept of personal guilt in order to withstand attack under the Due Process
Clause of the Fifth Amendment. Membership, without more, in an organization
engaged in illegal advocacy, it is now said, has not heretofore been recognized
by this Court to be such a relationship.16 This claim stands, and we shall
examine it, independently of the claim made under the First Amendment.
42

Any thought that due process puts beyond the reach of the criminal law all
individual associational relationships, unless accompanied by the commission
of specific acts of criminality, is dispelled by familiar concepts of the law of
conspiracy and complicity. While both are commonplace in the landscape of
the criminal law, they are not natural features. Rather they are particular legal
concepts manifesting the more general principle that society, having the power
to punish dangerous behavior, cannot be powerless against those who work to
bring about that behavior.17 The fact that Congress has not resorted to either of
these familiar concepts means only that the enquiry here must direct itself to an
analysis of the relationship between the fact of membership and the underlying
substantive illegal conduct, in order to determine whether that relationship is
indeed too tenuous to permit its use as the basis of criminal liability. In this
instance it is an organization which engages in criminal activity,18 and we can
perceive no reason why one who actively and knowingly works in the ranks of
that organization, intending to contribute to the success of those specifically
illegal activities, should be any more immune from prosecution than he to
whom the organization has assigned the task of carrying out the substantive
criminal act. Nor should the fact that Congress has focussed here on
'membership,' the characteristic relationship between an individual and the type
of conspiratorial quasi-political associations with the criminal aspect of whose
activities Congress was concerned, of itself require the conclusion that the
legislature has traveled outside the familiar and permissible bounds of criminal
imputability. In truth, the specificity of the proscribed relationship is not neces
arily a vice; it provides instruction and warning.19

43

What must be met, then, is the argument that membership, even when
accompanied by the elements of knowledge and specific intent, affords an
insufficient quantum of participation of the organization's alleged criminal
activity, that is, an insufficiently significant form of aid and encouragement to
permit the imposition of criminal sanctions on that basis. It must indeed by
recognized that a person who merely becomes a member of an illegal
organization, by that 'act' alone need be doing nothing more than signifying his
assent to its purposes and activities on one hand, and providing, on the other,

only the sort of moral encouragement which comes from the knowledge that
others believe in what the organization is doing. It may indeed be argued that
such assent and encouragement do fall short of the concrete, practical impetus
given to a criminal enterprise which is lent for instance b a commitment on the
part of a conspirator to act in furtherance of that enterprise. A member, as
distinguished from a conspirator, may indicate his approval of a criminal
enterprise by the very fact of his membership without thereby necessarily
committing himself to further it by any act or course of conduct whatever.
44

In an area of the criminal law which this Court has indicated more than once
demands its watchful scrutiny (see Dennis, supra, 341 U.S. at page 516, 71
S.Ct. at page 870, 95 L.Ed. 1137; Yates, supra, 354 U.S. at page 328, 77 S.Ct.
at page 1081, 1 L.Ed.2d 1356; and see also Noto v. United States, 367 U.S.
290, 81 S.Ct. 1517, 6 L.Ed.2d 836), these factors have weight20 and must be
found to be overborne in a total constitutional assessment of the statute. We
think, however, they are duly met when the statute is found to reach only
'active' members having also a guilty knowledge and intent, and which
therefore prevents a conviction on what otherwise might be regarded as merely
an expression of sympathy with the alleged criminal enterprise, unaccompanied
by any significant action in its support or any commitment to undertake such
action.

45

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

think the factors called for in rendering members criminally responsible for the
illegal advocacy of the organization fall within established, and therefore
presumably constitutional, standards of criminal imputability.

3. First Amendment.
46
47

Little remains to be said concerning the claim that the statute infringes First
Amendment freedoms. It was settled in Dennis that the advocacy with which
we are here concerned is not constitutionally protected speech, and it was
further established that a combination to promote such advocacy, albeit under
the aegis of what purports to be a political party, is not such association as is
protected by the First Amendment. We can discern no reason why membership,
when it constitutes a purposeful form of complicity in a group engaging in this
same forbidden advocacy, should receive any greater degree of protection from
the guarantees of that Amendment.

48

If it is said that the mere existence of such an enactment tends to inhibit the
exercise of constitutionally protected rights, in that it engenders an unhealthy
fear that one may find himself unwittingly embroiled in criminal liability, the

answer surely is that the statute provides that a defendant must be proven to
have knowledge of the proscribed advocacy before he may be convicted. It is,
of course, true that quasi-plitical parties or other groups that may embrace both
legal and illegal aims differ from a technical conspiracy, which is defined by its
criminal purpose, so that all knowing association with the conspiracy is a
proper subject for criminal proscription as far as First Amendment liberties are
concerned. If there were a similar blanket prohibition of association with a
group having both legal and illegal aims, there would indeed be a real danger
that legitimate political expression or association would be impaired, but the
membership clause, as here construed, does not cut deeper into the freedom of
association than is necessary to deal with 'the substantive evils that Congress
has a right to prevent.' Schenck v. United States, 249 U.S. 47, 52, 39 L.Ed. 247,
249, 63 L.Ed. 470. The clause does not make criminal all association with an
organization which has been shown to engage in illegal advocacy. There must
be clear proof that a defendant 'specifically intend(s) to accomplish (the aims of
the organization) by resort to violence.' Noto v. United States, post, 367 U.S.
290, to v. United States, post, 367 U.S. at page 299, 81 S.Ct. at page 1522.
Thus the member for whom the organization is a vehicle for the advancement
of legitimate aims and policies does not fallw ithin the ban of the statute: he
lacks the requisite specific intent 'to bring about the overthrow of the
government as speedily as circumstances would permit.' Such a person may be
foolish, deluded, or perhaps merely optimistic, but he is not by this statute made
a criminal.
49

We conclude that petitioner's constitutional challenge must be overruled.21

III.
Evidentiary Challenge.
50
51

Only in rare instances will this Court review the general sufficiency of the
evidence to support a criminal conviction, for ordinarily that is a function
which properly belongs to and ends with the Court of Appeals. We do so in this
case and in No. 9, Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6
L.Ed.2d 836 our first review of convictions under the membership clause of the
Smith Actnot only to make sure that substantive constitutional standards have
not been thwarted, but also to provide guidance for the future to the lower
courts in an area which borders so closely upon constitutionally protected
rights.

52

On this phase of the case petitioner's principal contention is that the evidence
was insufficient to establish that the Communist Party was engaged in present

advocacy of violent overthrow of the Government in the sense required by the

Smith Act, that is, in 'advocacy of action' for the accomplishment of such
overthrow either immediately or as soon as circumstances proved propitious,
and uttered in terms reasonably calculated to 'incite' to such action. See Yates v.
United States, supra, 354 U.S. 318322, 77 S.Ct. 10761078. This
contention rests largely on the proposition that the evidence on this aspect of
the case does not differ materially from that which the Court in Yates stated
was inadequate to establish that sort of Party advocacy there.
53

In Yates the Government sought to use the Communist Party, or at least the
California branch of the Party, as the conspiratorial nexus between various
individuals charged, among other things, with a conspiracy to engage in illegal
advocacy. Upon reversal here for error in the trial court's charge on the nature
of the advocacy proscribed by the Smith Act, this Court, in the exercise of its
powers under 28 U.S.C. 2106, 28 U.S.C.A. 2106,22 went on to consider the
adequacy of the evidence for the purpose of determining as to which defendants
an acquittal should be ordered, and as to which ones the way for a new trial
should be left open. In the process it was stated that the Government's Partyconspiratorial-nexus theory was unavailing because the evidence fell short of
establishing that the Party's advocacy constituted 'a call to forcible action' for
the accomplishment of immediate or future overthrow, in contrast to the
teaching of mere 'abstract doctrine' favoring that end. 354 U.S. at page 329, 77
S.Ct. at page 1082. At the same time, however, it was found that the record
reflected certain episodes which, it was considered, might permissibly lend
themselves to an inference of illegal advocacy by particular Party members (see
id., 354 U.S. at pages 331333, 77 S.Ct. at pages 10831084). It was
concluded, however, that these and similar episodes were too 'sporadic' and
remote (id., 354 U.S. 330, 77 S.Ct. 1082) to justify their attribution to the Party,
possibly casting its abstract teaching of the 'Communist classics' in a different
mold. Accordingly, the Court directed an acquittal of those defendants who had
not themselves been connected with such episodes.

54

We age e with petitioner that the evidentiary question here is controlled in large
part by Yates. The decision in Yates rested on the view (not articulated in the
opinion, though perhaps it should have been) that the Smith Act offenses,
involving as they do subtler elements than are present in most other crimes, call
for strict standards in assessing the adequacy of the proof needed to make out a
case of illegal advocacy. This premise is as applicable to prosecutions under the
membership clause of the Smith Act as it is to conspiracy prosecutions under
that statute as we had in Yates.

55

The impact of Yates with respect to this petitioner's evidentiary challenge is not

limited, however, to that decision's requirement of strict standards of proof.

Yates also articulates general criteria for the evaluation of evidence in
determining whether this requirement is met. The Yates opinion, through its
characterizations of large portions of the evidence which were either described
in detail or referred to by reference to the record, indicates what type of
evidence is needed to permit a jury to find that (a) there was 'advocacy of
action' and (b) the Party was responsible for such advocacy.
56

First, Yates makes clear what type of evidence is not in itself sufficient to show
illegal advocacy. This category includes evidence of the following: the teaching
of Marxism-Leninism and the connected use of Marxist 'classics' as textbooks;
the official general resolutions and pronouncements of the Party at past
conventions; dissemination of the Party's general literature, including the
standard outlines on Marxism; the Party's history and organizational structure;
the secrecy of meetings and the clandestine nature of the Party generally;
statements by officials evidencing sympathy for and alliance with U.S.S.R. It
was the predominance of evidence of this type which led the Court to order the
acquittal of several Yates defendants, with the comment that they had not
themselves 'made a single remark or been present when someone else made a
remark which would tend to prove the charges against them.' However, this
kind of evidence, while insufficient in itself to sustain a conviction, is not
irrelevant. Such evidence, in the context of other evidence, may be of value in
showing illegal advocacy.

57

Second, the Yates opinion also indicates what kind of evidence is sufficient.
There the Court pointed to two series of events which justified the denial of
directed acquittals as to nine of the Yates defendants. The Court noted that with
respect to seven of the defendants, meetings in San Francisco which were
described by the witness Foard might be considered to be 'the systematic
teaching and advocacy of illegal action which is condemned by the statute.' 354
U.S. at page 331, 77 S.Ct. at page 1083. In those meetings, a small group of
members were not only taught that violent revolution was inevitable, but they
were also taught techniques for achieving that end. For example, the Yates
record reveals that members were directed to be prepared to convert a general
strike into a revolution and to deal with Negroes so as to prepare them
specifically for revolution. In addition to the San Francisco meetings, the Court
referred to certain activities in the Los Angeles area 'which might be considered
to amount to 'advocacy of action" and with which two Yates defendants were
linked. Id., 354 U.S. 331332, 77 S.Ct. 1083. Here again, the participants did
not stop with teaching of the inevitability of eventual revolution, but went on to
explain techniques, both legal and illegal, to be employed in preparation for or
in connection with the revolution. Thus, one member was 'surreptitiously

indoctrinated in methods * * * of moving 'masses of people in time of crisis";

others were told to adopt such Russian prerevolutionary techniques as the
development of a special communication system through a newspaper similar to
Pravda. Id., 354 U.S. 332, 77 S.Ct. 1083. Viewed together, these events
describd in Yates indicate at least two patterns of evidence sufficient to show
illegal advocacy: (a) the teaching of forceful overthrow, accompanied by
directions as to the type of illegal action which must be taken when the time for
the revolution is reached; and (b) the teaching of forceful overthrow,
accompanied by a contemporary, though legal, course of conduct clearly
undertaken for the specific purpose of rendering effective the later illegal
activity which is advocated. Compare Noto v. United States, post, 367 U.S. at
pages 297299, 81 S.Ct. at pages 15201522.
58

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

type and quantum of evidence necessary to attach liability for illegal advocacy
to the Party. In discussing the Government's 'conspiratorial-nexus theory' the
Court found that the evidence there was insufficient because the incidents of
illegal advocacy were infrequent, sporadic, and not fairly related to the period
covered by the indictment. In addition, the Court indicated that the illegal
advocacy was not sufficiently tied to officials who spoke for the Party as such.

59

Thus, in short, Yates imposes a strict standard of proof, and indicates the kind
of evidence that is insufficient to show illegal advocacy under that standard, the
kind of evidence that is sufficient, and what pattern of evidence is necessary to
hold the Party responsible for such advocacy. With these criteria in mind, we
now proceed to an examination of the evidence in this case.

60

We begin with what was also present in Yates, the general evidence as to the
doctrines, organization, and tactical procedures of the Communist Party,
exposited by Lautner, the Government's foundational witness both here and in
Yates. Together with documentary evidence, Lautner's testimony, based on
high-level participation in Party affairs from 1929 to 1950, furnished the
necessary background in Party theory and terminology which is crucial to the
proper appreciation of the tenor of Party pronouncements, for these
pronouncements, taken out of this larger context, might appear harmless and
peaceable without in reality being so. The distinction that was drawn in Yates
between theoretical advocacy and advocacy of violence as a rule of action is of
course basic, but when the teaching is carried out in a special vocabulary,
knowledge of that vocabulary is at least relevant to an understanding of the
quality and tenor of the teaching.

61

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

the 1945 reconstitution of the organization. Prior to that time the Party, as the
Communist Political Association, had adhered to the position that the change to
a Communist society could be achieved through peaceful, democratic means.
The reconstitution, which was finally approved at a National Convention in
July of 1945, involved a return to the principles of Marxism-Leninism. As
found in the so-called Communist classics, the adoption of a program of
industrial concentration, the increased effort among Negroes, especially in the
South, the complete repudiation of the former Party leader, Browder, and his
doctrine of 'revisionism,' all signified, so Lautner testified, that the United
States was henceforth to be regarded as no exception to the teachings of Lenin
that communism could only be achieved in an industrialized nation such as this
by resort to violent revolution, and that a belief in peaceful means was
foolishness or treachery. Lautner testified that the industrial concentration
program, as well as the emphasis on the Negro minority, was an articulation of
this doctrine, in that it involved a concentration on those elements in society
which the Party believed could do most damage, in time of crisis, to the
existing social fabric in relation to their numbers, and that victory at the polls
was not its concern. Lautner testified that it was further resolved at the 1945
National Convention that in order to implement the principles of the reconstitui
on, a program of thorough re-education of the whole Party membership should
be undertaken, and Lautner himself was charged with the duty of carrying out
this re-education as a District Organizer and State Chairman. The balance of
Lautner's testimony was devoted to a detailed description of the elaborate
underground 'apparatus' which he and others were charged with setting up in
the various portions of the country assigned to them.
62

Mrs. Hartle testified as to her activities in the Party, primarily in the Pacific
Northwest area, from 1934 to approximately 1952. Mrs. Hartle confirmed, in
many respects, Lautner's testimony as to Party teaching and doctrine throughout
this period. After the 1945 reconstitution she was sent to the National Training
School in New York, where thirty 'officers and functionaries' from various parts
of the country were 're-educated' in accordance with the decisions and
resolutions of the 1945 Convention. She was taught about 'dialectical
materialism,' and the theory of struggle between the capitalist class and the
working class. They were taught 'and reference was made to a quotation * * *
that it is the duty of a revolutionary not to try to gloss over this class struggle or
to try to compromise it, but to unravel it, to allow this class struggle and help
this class struggle to unfold, the clash to proceed.' The class was told that 'it is
the duty of a Marxist-Leninist to be a revolutionary and not a reformist.' They
were further instructed 'that the United States * * * was objectively at the stage
for Proletarian revolution,' that the time for the proletariat revolution would
come when the objective conditions of political or economic crisis coincided

with the 'subjective condition' of a Communist Party which was large enough,
with enough 'influence' among the working classes, 'to give the necessary
leadership to lead to the seizure of power.' Much of the testimony summarized
so far may indeed by considered to relate to the mere theory of revolution,
abstract advocacy. However, the teaching at the National Training School also
descended to a lower level of generality. Mrs. Hartle was told that the 'role' of
the Communist Party was 'preparing the workers and the people to be ready to
be able to take power, to know how to take power' when a 'revolutionary
situation arose.' At that time, 'the plan and program of the Party would be to
lead the working class to seize power' and 'to smash the Bourgeois state
machine.' With respect to this latter task, the class was told:
63

'* * * the Bourgeois state machine is not smashed after the seizure of power,
but in the course of seizing power that the armies, the police, the prisons have
to be dealt with and smashed up and rendered inoperative in the course of the
seizure of power, that other matters, that some other matters in replacing the, a
state, such as the, some of the administrative apparatus and some other matters
would take a longer period of time, but the forcible elements of the capitalist
state must be smashed in the course of taking power, but some other things like
reorganizing the banking system, or some matters like that, could be done in a
somewhat longer process.'

64

In pressing toward the fulfillment of the 'subjective conditions' necessary for

such action, Mrs. Hartle was taught that 'the struggles and activities of the
Communist Party prepare the working class for this act of seizure of power,'
and the history of the Russian Communist Party and Revolution was taught in
the school and the events and principles of this history were constantly related
to contemporary conditions in the United States. Thus, for example, the class
was told that the coalition of workers and peasants which had proved so
successful in Russia should have its counterpart in America in a coalition of
workers and Negroes, especially in the South.

65

Following her classes at the National Training School, Mr. Hartle returned to
Washington, where she helped to recruit and organize in 'undergroud fashion'
the employees of the Boeing Aircraft Plant in that State. At the same time, Mrs.
Hartle was active in Party schools in her area. She testified that she had both
been instructed and had herself taught:

66

'* * * the means by which the ultimate goal might be attained was that those
means would be forcible. The teaching was that any teaching, any theory of a
peaceful road to socialism, or a growing over from capitalism to socialism was a
betrayal of the working class and that the Communist Party leading the working

class would have to arm it in the first place with the theory that the workers
must know and must be prepared to know that they can only take power
forcibly.
67

'The action that Communist Party members should take in preparing for the
ultimate goal that I was taught and that I taught, were to build the Communist
Party as the vanguard party of the working class, a theoretically equipped party,
equipped with the theory of Marxism-Leninism, a highly organized party that
could act as a unit, as a monolithic whole, with democratic centralism, the
principle guiding it * * * and that the Communist Party should be the
connection between the vanguard and the working class millions in this
preparation by working with and winning the confidence of the working class
and allies of the working class, such as, the Negro people, the poor farmers,
other national groups, and in this way, in the course of struggle, constant
struggle taking the forms of strikes and demonstrations and picket lines and
marches and various kinds of activities to train the working class and the people
for revolutionary battle.'

68

The witness Duran, who attended a Party School in Los Angeles in 1951,
described what he had been taught by one Moreau, a member of the National
Education Commission of the Communist Party:

69

'He divided in his explanation the * * * Proletariat * * * as being divided into

two groups. Those in industry that would lead the revolution, and those in
agriculture that would follow, and speaking about the revolution, Professor
Moreau stated to the class in a very emotional manner that he could see himself
carrying a gun against the capitalist S.O.B.'s and explained to the class it was
all based on the science of Marx and Lenin.

70

'In discussing the Proletarian Revolution more thoroughly Professor Moreau

explained throughout the school that the Proletarian Revolution would only
come about if a Bolshevik rank and file, the sincere Communists, would get out
and teach, and teach the people, the desirability of changing the system and the
necessity of changing them, and in doing that, we had to teach the people that
you cannot change the capitalist system to a Socialist system, to socialism
successfully, the peaceful way; it had to be erupted from, and had to be taken
away by force and violence, away from them and the entire state machinery of
the Bourgeoisie smashed, the F.B.I., the courts and the Army and the Navy,
whatever was on it, whatthe entire instrumentality of the Bourgeoisie had to
be smashed and substituted by the Proletarian machinery.

71

'* * * and during the period of the revolution the transition, the violent

71

'* * * and during the period of the revolution the transition, the violent
transition, we had to make mass work to get the masses away from the
Bourgeoisie so they would not join a counterrevolution movement.

72

'It meant after the people of the Communist Party, the vanguard, had become
satisfied, that the Bourgeoisie machinery was smashed, and they were in
control, then they also had to collect guns from the people and control the
people themselves.

73

'Q. Do I understand, Mr. Moreau (sic) that during this period of revolution the
people, that is, the masses of the people, would be carrying guns? A. Yes, sir.

74

'Q. And after the revolution do I understand that the Party would go around and
collect these guns and take them away from the people? A. Yes, sir; take them
away from those that helped them overthrow the capitalist system in order to
assure the revolution itself. * * *

75

'm mediately after the overthrow of the capitalist system and establishment of
the dictatorship of the Proletariat, it became necessary for a Communist to
establish Red Army in this country, not only to secure and maintain the
dictatorship of the proletariat, but control the people as well, and those people
that did help overthrow the Government would not have any civil rights
whatsoever, no voting rights, or anything; they would be dished out to them
according to the way they felt, way they fell in with the Communist office by
the dictatorship.

76

'Q. Now, Mr. Duran, what, if anything, did Mr. Moreau teach you in this school
about the role that would be played by the Communist Party during this period
of revolution when the Government would be overthrown by force and
violence? A. The role of the Communist Party, and specifically within the
Communist Party, the Bolsheviks was to play a vanguard role, a leading role;
that is explained scientifically in that so that first we teach the people the
desirability of overthrowing them and teach them the, it could only be done
through the Proletarian Revolution, and then when the time is ripe we could
stampede them against the capitalist class.'

77

Duran also testified to what he had been taught by Art Berry, District Organizer
for seven States, in a Colorado school in 1952:

78

'* * * we were discussing the scientific application of Marx and Lenin to the
transition period between capitalism and socialism, and he demonstrated this

with the kettle of water, that you could put a quantitative amount of water in a
kettle and set it somewhere, nothing would happen, just like the masses,
nothing does happen.
79

'* * * (he) said, however, if you get that same amount, same kettle with the
same amount of water in it, and put fire underneath it, then you begin to get
quantitative changes, and eventually it reaches a nodule point to where it has a
qualitative and abrupt transition into steam. He continued, same applied to the
development of the revolution in this sense the American people will not and
cannot make a successful change over from capitalism to socialism by
themselves, like the fire underneath the water, the Communist Party teaches
and leads them to where when the society reaches that nodule point, the
Communist people teaches the people before and then leads them to make that
abrupt change into the society of socialism.

80

'Substantially, within the same explanation of violent overthrow of the

Government * * * he stated that not only would it be that, but that we would
have to set up barricades, establish a central point from where we would
participate from; he stated that 'we' literally speaking 'we', would have to have a
central point because during the revolution it may become necessary to ebb,
retreat in certain battles, and we would have to learn to retreat in an
organizational way and a correct way. It was essential to learn to ebb as it was
to flow on the revolution.

81

'In the ebbing we were to see that we ebb before the enemy wiped everybody
out. Ebbing to the central point that had been barricaded, reorganization, and
then at the correct time start flowing forward in the revolution.'

82

The witness Obadiah Jones testified concerning a Party Training School in St.
Louis which he attended in 1947. Jones was taught 'that the only way the
national problem could be solved would be in connection with the Proletariat
Revolution.' Jones was also instructed as to the nature of a Communist army:

83

'A. He said general staff of an army was different from the Communist Party *
* * general staff of an army operated from a safe spot from behind the line and
led the army from a far distance, and that the Communist Party went forth and
fought with the workers.

84

'Q. Did he say anything with reference to the techniques? A. Yes, he said that
you couldn't be a good leader without knowing all of the techniques of fighting.

85

'Q. Did he say anything with respect to carrying out instructions? A. Yes, sir.

86

'Q. What di he say in that connection? A. He said that capitalists in the army did
not carry out the instructions in full, but the Communists did, irregardless of
what the cost would be, the would carry out instructions completely.'

87

At the final session, the students were required by the instructor to take a
pledge:

88

'The pledge was each of us are Communists or members of the Party and each
of us have a responsibility and we must carry out our responsibility and work
for the interests of the Party and its recipients and carry out the full will of the
Party even though it meant to fight and to kill, we must carry out the demands
of the Party and all of them.'

89

The witnesses Clontz, Childs, and Reavis testified primarily as to their dealings
with petitioner Scales. We regard this testimony, which finds no counterpart in
the Yates record with respect to any of the defendants whose acquittal was
directed, as being of special importance in two ways: it supplies some of the
strongest and most unequivocal evidence against the Party based on the
statements and activities of a man whose words and deeds, by virtue of his high
Party position, carry special weight in determining the character of the Party
from the standpoint of the Smith Act; and it appears clearly dispositive as to the
quality of petitioner's Party membership, and his knowledge and intent, when
we come to consider him not as a Party official but as the defendant in this
case. 23

90

In 1948 Ralph C. Clontz, Jr., then a student at Duke Law School, undertook to
furnish the F.B.I. with information he had gained about Communist Party
activities in North Carolina, and to volunteer his services in attempting to
penetrate the Party to acquire further information. As a result, in September of
that year, Clontz sent a postcard to petitioner, informing him that he was a law
student and that he was interested in communism. Petitioner replied by sending
Clontz 'a large cardborad box filled with Communist literature.' An
accompanying letter, headed 'Carolina District Communist Party U.S.A.' with
the notation 'Junius Scales, Chairman,' explained:

91

'Under separate cover I have already sent you a rather varied sample of our
literature. I hope you will give it close attention. If I can discuss any matter
relating to my Party and its program with you in person, I will be glad to do so.'

92

93

Several days later Clontz went to visit petitioner and thus began a relationship
which was to bring him into intimate contact with the Communist Party, its
teachings, purposes and activities.
At an early meeting between the two, petitioner told Clontz that it was
impossible for the Communist Party to succeed to power through educating the
people in this country and gaining their votes at the polls, but that a forceful
revolution would be necessary. At a later meeting, the discussion was not
limited to the theoretical inevitability of revolution, but went beyond the theory
itself to an explanation of 'basic strategy' which the Communist Party was using
to give concrete foundation o the theory, i.e., to bringing about the revolution:

94

'The defendant (petitioner) explained that basically their strategy was bottomed
on a concept that there were two classes of people in this country, that could be
used by the Communist Party to foment a revolution.

95

'The first class he termed the working class or Proletariat, working class, he
said, had as its natural born leaders or vanguard, the Communist Party.

96

'The second class, he described, in this country was what he termed the Negro
nation. The Negro nation he described as a separate nation in what he termed
the Black Belt, including thirteen Southern States, and the strategy of the
Communist Party was to bring the working class, led by the Communist Party,
and what he termed the Negro nation, together, to bring about a forceful
overthrow of the Government.

97

'Now Scales and the Communist Party taught that the basic strategy of the
Communist Party would never change, but that tactics might be altered as the
situation changed.'

98

On petitioner's invitation, Clontz joined the Communist Party on January 17,

1950. He was not assigned to a particular group but became a member 'at large,'
in order to continue his instruction under petitioner. In the course of this
instruction, petitioner repeatedly told Clontz of the necessity for revolution to
bring about the Dictatorship of the Proletariat. Scales analogized the situation
in the United States to that in Russia prior to the 1917 Revolution. He pointed
out that revolution would be 'easier' in this country than it had been in Russia:

99

'that while in the Soviet Union there had been no one to help the Soviet Party,
that in this country when the revolution started, we would have the benefit of
the help from the mother country, Russia, in bringing about our own

revolution, because part of the purposes of the Communist Party in the Soviet
Union was international in scope and that we naturally would continue to
receive help in all circumstances from the Soviet Party when the revolution
was started here in this country.'
100 Petitioner explained that the Soviet Union could not be expected to land troops
to start a revolution here. A similar procedure had been unsuccessful in China.
Rather, he said 'that we Communists in this country would have to start the
revolution, and we would have to continue fighting it,' but that the Soviet
Union would aid the Communist Party in this endeavor by furnishing it 'with
experienced revolutionaries from Russia.'24 He added that 'if the United States
declared war on the Communists in their revolution, then the Soviet Union
would land troops, and he said that would be a bloody time for all.' When asked
by Clontz when all this would occur, Scales noted that a 'depression would
greatly accelerate the coming of the revolution' if the Communists used it
properly to prepare the masses of the people.
101 Petitioner arranged for Clontz to be awarded a scholarship to study in New
York at th Jefferson School of .social Science, an official Communist Party
School, during the month of August 1950. Because Clontz arrived at a time
when few scheduled courses were being offered, the bulk of his training at the
school was received in private instruction from Doxey A. Wilkerson, the
teacher with whom petitioner had communicated in arranging Clontz'
scholarship.25 Wilkerson, like petitioner, told Clontz 'that the Communist Party
recognized and expressed to themselves that the only kind of means would be
proper means, which would be forceful means, that no longer was there any
even pretense among intelligent Communists that any voting system or any
people's election could bring this government.' He also stated, as Scales had,
that 'the revolution basically would come about by combining the forces of
what had been already identified as the Negro nation and the working class as
the vanguard.'
102 In line with this strategy, Wilkerson advised Clontz that he should not let his
membership in the Communist Party become known, that by remaining 'under
cover' he 'would be much more helpful to the Party when the revolution came.'
As part of his undercover activity, Clontz was directed to attempt to infiltrate
various organizations of the working class in order to achieve 'a background of
respectability' and to be able to lead such organizations 'toward the goal of the
Communist Party, * * * the undermining of the Government and overthrowing
the Government, bringing communism in the United States.' But Clontz was
not to lose contact with the Party, for if he 'got isolated without Party direction
* * * (his) efforts would be pretty largely wasted.' In connection with these

instructions, Wilkerson mentioned 'one of the things that frightened the United
States leaders was they knew that not only did they have to contend with China
and the other Communist-dominated countries, but that also in every capitalist
country the working class party, the Communists, would be working from
within.'
103 When Clontz returned to North Carolina, he reported to petitioner on his
activities at the Jefferson School. He also informed petitioner, under
instructions from the F.B.I., that he wished to move to New York. Petitioner
arranged for Clontz to remain under his direction and to pay dues to him, while
in New York, rather than effecting a formal transfer. Clontz moved to New
York in March of 1951. While there Scales directed him to 'get in with the
A.C.L.U. organization to report on what value they might have in the coming
struggle * * *.' Clontz had also been advised by an associate of petitioner to
'infiltrate * * * the Civilian Defense setup.'
104 The witnesses Childs and Reavis also testified to their relationship with Scales,
who among other things arranged for their attendance at Party schools where
their instruction followed much the same pattern as that described by Clontz.26
In 1952 Childs attended a 'Party Training School' of which petitioner was a
director. The school was given 'for outstanding cadres in the North and South
Carolina and Virginia Districts of the Communist Party.' It was held on a farm
and strict security measures were taken. The District Organizer of Virginia
instructed at the school. He told the students that 'the role of the Communist
Party is to lead the working masses to the overthrow of the capitalist
government.' With respect to the preliminary task of gaining the 'broad
coalition' necessary to achieve this task, he stated that,
105 '* * * the Communist Party has a program of industrial concentration in which
they try to get people, that is, people who are Communist Party members, into
key shops or key industries which the Party has determined or designated to be
industrial concentration industries or plants. This is so that the Communist
Party members in a particular plant will be able to have a cell, or a Communist
Party group in which they will be able to more effectively plan for such things
as attempting to control the union in that particular plant.'
106 And, in a compulsory recreation period, this same instructor gave a
demonstration of jujitsu and, explaining that the students 'might be able to use
this on a picket line,' how to kill a person with a pencil. According to Childs'
testimony, 'what he showed us to do was to take our pencil, * * * just take the
pencil and place it simply in the palm of your hand so that the back will rest
against the base of the thumb, and then we were to take it, and the person, and

give a quick jab so that it would penetrate through here (demonstrating), and
enter the heart, and then if w could not do that, we just take it and grab it at the
base of the throat.'
Reavis attended the Party's New York Jefferson School in 1942. In a course on
107 'Negro History' the students, drawn primarily from the South, were taught that
'* * * the Negro people was the only revolutionary group within the United
States that we could align themselves (sic) with, and hope to reach their (sic)
gains through the avenue of force and violence, by overthrow of the
Government, by Proletariat faction * * *.' Reavis was later advised to seek
employment at the Western Electric Plant in Winston-Salem. He stated:
108 'I bumped into Mr. Scales at Harvey's home and Ithe report said * * * the
advice I'd been getting was confirmed by him. I advanced the question on what
I should do in case I did get employment there at Western Electric, and I knew
if was a, Government work, what I should do in case I was asked to sign certain
papers, and I was told to do the same, that they had when signing a TaftHartley affidavit, to go ahead and sign them, that before they did, the defendant
asked me if I had signed any papers that might be used as proof that I was in the
Party, and I didn't remember any.'
109 We conclude that this evidence sufficed to make a case for the jury on the issue
of illegal Party advocacy. Dennis and Yates have definitely laid at rest any
doubt that present advocacy of future action for violent overthrow satisfies
statutory and constitutional requirements equally with advocacy of immediate
action to that end. 341 U.S. at page 509, 71 S.Ct. at page 867, 95 L.Ed. 1137;
354 U.S. at page 321, 77 S.Ct. at page 1078, 1 L.Ed.2d 1356. Hence this record
cannot be considered deficient because it contains no evidence of advocacy for
immediate overthrow.
110 Since the evidence amply showed that Party leaders were continuously
preaching during the indictment period the inevitability of eventual forcible
overthrow, the first and basic question is a narrow one: whether the jury could
permissibly infer that such preaching, in whole or in part, 'was aimed at
building up a seditious group and maintaining it in readiness for action at a
propitious time * * * the kind of indoctrination preparatory to action which was
condemned in Dennis.' Yates, supra, 354 U.S. at pages 321322, 77 S.Ct. at
page 1078. On this score, we think that the jury, under instructions which fully
satisfied the requirements of Yates,27 was entitled to infer from this systematic
preaching that where the explicitness and concreteness, of the sort described
previously, seemed necessary and prudent, the doctrine of violent revolution
elsewhere more a theory of historical predictability than a rule of conductwas

put forward as a guide to future action, in whatever tone, be it emotional or

calculating, that the audience and occasion required; in short, that 'advocacy of
action' was engaged in.
The only other question on this phase of the case is whether such advocacy was
111 sufficiently broadly based to permit its attribution to the Party. We think it was.
The advocacy of action was not 'sporadic' (cf. 367 U.S. at page 226, 81 S.Ct. at
page 1485, supra), the instances of it being neither infrequent, remote in time
nor casual.28 It cannot be said that the jury could not have found that the
criminal advocacy was fully authorized and condoned by the Party. We regard
the testimony of the witnesses, whose credibility, of course, is not for us, as
indicating a sufficiently systematic and substantial course of utterances and
conduct on the part of those high in the councils of the Party, including the
petitioner himself, to entitle the jury to infer that such activities reflected tenets
of the Party. The testimony described activities in various States, including the
teaching at some seven schools, among them the national Party school. The
witnesses told of advocacy by high Party officials, including that of leaders of
the Party in nine States. Further, there was testimony that the Party followed
the principle of 'democraticentralism' whereby a position once adopted by the
Party must be unquestionably adhered to by the whole membership. The
conformity of the views expressed and the terms employed in advocating
violent overthrow in such States as Washington, North Carolina, Missouri,
Colorado and Virginia could reasonably be taken by the jury as a practical
manifestation of 'democratic-centralism.' Another concrete illustration of this
principle could have been found in the circumstance that in almost every
instance where a speaker engaged in advocacy of violent overthrow, he not only
advocated violence to his audience but urged others to go out and do likewise.
All of these factors combine to justify the inference that the illegal individual
advocacy as to which testimony was adduced was in truth the expression of
Party policy and purpose.
112 The requirement of Party imputability is adequately met in the record. (See note
18, supra.)
113 The sufficiency of the evidence as to other elements of the crime requires no
exposition. Scales' 'active' membership in the Party is indisputable, and that
issue was properly submitted to the jury under instructions that were entirely
adequate.29 The elements of petitioner's 'knowledge' and 'specific intent' (ante,
376 U.S. at page 220, 81 S.Ct. at page 1481) require no further discussion of
the evidence beyond that already given as to Scales' utterances and activities.
Compare Noto v. United States, 367 U.S. at pages 299300, 81 S.Ct. at pages
15211522. They bear little resemblance to the fragmentary and equivocal

utterances and conduct which were found insufficient in Nowak v. United

States, 356 U.S. 660, 666667, 78 S.Ct. 955, 959, 2 L.Ed.2d 1048, and in
Maisenberg v. United States, 356 U.S. 670, 673, 78S.Ct. 960, 962, 2 L.Ed.2d
1056.
114 We hold that this prosecution does not fail for insufficiency of the proof.
IV.
Alleged Trial Errors.
115
116 Petitioner contends that a number of errors were committed, having the effect
of vitiating the fairness of his trial. For reasons substantially similar to those
given by the Court of Appeals (260 F.2d 3846), we find that none of
petitioner's contentions raise points meriting reversal.
117 1. Admission of Remote or Prejudicial Evidence.
118 Petitioner complains as to the admission of certain evidence relating the the
Party's general or specific purposes. In particular, he objects to the admission of
evidence about the Party's program in the so-called 'Black Belt' and especially
to the admission of a pamphlet called 'I Saw the Truth in Korea,' which
contained a very gruesome description of alleged American atrocities in Korea.
There can be no doubt that this matter, and particularly the latter, would not
have reflected well on the petitioiner or the Party in the eyes of the jury, but if
it was relevant to an element of the crime, then whether its asserted prejudicial
effect so far outweighed its probative value as to require exclusion of the
evidence, was a decision which rested in the sound discretion of the trial judge.
Particularly in light of the fact that the most damaging of this material emanated
from petitioner himself (260 F.2d at page 38), we cannot say that its admission
involved an abuse of discretion which would warrant out reversal of the
conclusions of the trial judge and the Court of Appeals on this score.
119 We therefore need only consider whether the complained-of evidence was
legally relevant and therefore admissible. As we have pointed out in our review
of the record, the jury could have inferred that part of the Communist Party's
program for violent revolution was the winning of favor with the Negro
population in the South, which it thought was particularly susceptible to
revolutionary propaganda and action. Surely, then, the evidence of the Party's
teaching that the Negro population should be given the right to form a separate
nation is not irrelevant to the issue of whether or not the Party's program as a
whole constituted a call to stand in readiness for violent action, when this

particular plank in the platform was intended as baitf or one of the substantial
battalions in the hoped-for revolutionary array. Of course, the preaching that
the Negro population in the South has the right to form a separate nation does
not of itself constitute illegal advocacy. But neither does the teaching of the
abstract theory of Marxism-Leninism, which we have held cannot alone form
the basis for a conviction for violation of the Smith Act, Yates v. United States,
supra; yet it cannot be seriously urged that evidence of such teaching is legally
irrelevant to the charge. Similarly the evidence of the pamphlet on alleged
American atrocities in Korea cannot be said to be irrelevant to the issue of
illegal advocacy by the Party. Once again, the pamphlet may not in itself
constitute such an incitement to violence as would justify a finding that the
Party advocated violent overthrow, but it is possible to infer from it that it was
the purpose of the Party to undermine the Government in the eyes of the people
in time of war as a preparatory measure, albeit legal in itself, to the teaching and
sympathetic reception of illegal advocacy to violent revolution.
120 Petitioner also argues that this and other evidence was not connected up with
him or his activities. Whether it was or not, since it is necessary under the
membership clause to prove the advocacy of the Party as an independent
element of the offense, this renders admissible evidence not connected up with
the defendant in the accepted conspiracy sense. (See note 23, supra.) Doubtless
because of this there is a special need to make sure that the evidence
establishing a defendant's personal knowledge of illegal Party advocacy and his
intent in becoming or remaining a Party member to accomplish violent
overthrow is cogent and adequately brought home to him. But, having said that,
we have said all, in respect to petitioner's claim on this point.
2. The 'Jencks' Claim.
121
122 When this case was first before us we reversed the conviction, 355 U.S. 1, 78
S.Ct. 9, 2 L.Ed.2d 19, on the authority of our decision in Jencks v. United
States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. Before the second trial
Congress enacted the so-called Jencks statute, 18 U.S.C. 3500, 18 U.S.C.A.
3500. Petitioner, as we understand him, does not now argue that that statute
was incorrectly applied in his case; rather he attacks, on constitutional grounds,
the statute itself. That the procedure set forth in the statute does not violate the
Constitution and that the procedure required by the decision of this Court in
Jencks was not required by the Constitution was assumed by us in Palermo v.
United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. It is enough to say
here that there can be no complaint by a criminal defendant that he has been
denied the opportunity to examine statements by government witnesses which
do not relate to the subject matter of their testimony, for such statements bear

no greater relevance to that testimony which he seeks to impeach than would

statements by persons unconnected with the prosecution. Whether the
statements so relate to prosecution testimony is a decision which is vested not in
the Government but in the trial judge with full opportunity for appellate review.
Once this question has been determined, whether the statements may be useful
for purposes of impeachment is a decision which rests, of course, with the
defendant himself.
123 Petitioner also objects to the limitation of the Act to written statements signed
or adopted by the witness or to any form of substantially verbatim transcription
of an oral statement by the witness. However, petitioner does not assert that he
has been prejudiced by this provision, or that any statement or document
requested by him was withheld on the authority of the statute. In these
circumstances we perceive no basis for this aspect of petitioner's
124 claims. 3. Congressional Findings in the Communist Control Act of 1954 and
the Internal Security Act of 1950.
125 Petitioner asserts that the congressin al findings as to the character of the
Communist Party contained in both statutes deprived him of a fair trial on the
issue of the character of the Party That legislative action may have the effect of
precluding a fair trial is not impossible, see Delaney v. United States, 1 Cir.,
199 F.2d 107, 39 A.L.R.2d. 1300, but petitioner's claim here appears to be no
more than an afterthought. There is no showing of any prejudice, nor that
during the voir dire examination of jurors petitioner attempted to ascertain
whether any juror had even heard of these enactments, much less that petitioner
attempted to have any juror disqualified on that ground. We cannot on this
record regard this as a substantial contention.
126 Finally, for the reasons stated by the Court of Appeals, 260 F.2d at pages 44
46, we think that petitioner waived any right he might have had to question the
method of choosing grand jurors by his failure to comply with Rule 12,
Fed.Rules Crim.Proc., 18 U.S.C.A. and further that no impropriety in the
method of choosing grand jurors has been shown.
127 The judgment of the Court of Appeals must be
128 Affirmed.
129 Mr. Justice BLACK, dissenting.

130 Petitioner was convicted for violation of the 'membership clause' of the Smith
Act which imposes a penalty of up to twenty years' imprisonment together with
a fine of $20,000 upon anyone who 'becomes or is a member of, or affiliates
with, any * * * society, group, or assembly of persons (who teach, advocate, or
encourage the overthrow of the existing government by force or violence),
knowing the purposes thereof * * *.'1 Rejecting numerous contentions urged for
reversal, the Court upholds a six-year sentence imposed upon petitioner under
the authority of its prior decisions in Dennis v. United States2 and Yates v.
United States.3 My reasons for dissenting from this decision are primarily those
set out by Mr. Justice BRENNANthat 4(f) of the Subversive Activities
Control Act4 bars prosecutions under the membership clause of the Smith Act
and Mr. Justice DOUGLASthat the First Amendment absolutely forbids
Congress to outlaw membership in a political party or similar association
merely because one of the philosophical tenets of that group is that the existing
government should be overthrown by force at some distant time in the future
when circumstances may permit. There are, however, two additional points that
I think should also be mentioned.
131 In an attempt to bring the issue of the constitutionality of the membership
clause of the Smith Act within the authority of the Dennis and Yates cases, the
Court has practically rewritten the statute under which petitioner stands
convicted by treating the requirements of 'activity' and 'specific intent' as
implicit in words that plainly do not include them. Petitioner's conviction is
upheld just as though the membership clause had always contained these
requirements. It seems clear to me that neither petitioner nor anyone else could
ever have guessed that this law would be held to mean what this Court now
holds it does mean. For that reason, it appears that petitioner has been convicted
under a law that is, at best, unconstitutionally vague and, at worst, ex post
facto.5 He has therefore been deprived of his right to be tried under a clearly
defined, pre-existing 'law of the land' as guaranteed by the Due Process Clause
and I think his conviction should be reversed on that ground.6
132 Secondly, I think it is important to point out the manner in which this case reemphasizes the freedom-destroying nature of the 'balancing test' presently in
use by the Court to justify its refusal to apply specific constitutional protections
of the Bill of Rights. In some of the recent cases in which it has 'balanced' away
the protections of the First Amendment, the Court has suggested that it was
justified in the application of this 'test' because no direct abridgment of First
Amendment freedoms was involved, the abridgment in each of these cases
being, in the Court's opinion, nothing more than 'an incident of the informed
exercise of a valid governmental function.'7 A possible implication of the
suggestion was that if the Court were confronted with what it would call a

direct abridgment of speech, it would not apply the 'balancing test' but would
enforce the protections of the First Amendment according to its own terms.
This case causes me to doubt that such an implication is justified. Petitioner is
being sent to jail for the express reason that he has associated with people who
have entertained unlawful ideas and said unlawful things, and that of course is a
direct abridgment of his freedoms of speech and assemblyunder any
definition that has ever been used for that term. Nevertheless, even as to this
admittedly direct abridgment, the Court relies upon its prior decisions to the
effect that the Government has power to abridge speech and assembly if its
interest in doing so is sufficient to outweigh the interest in protecting these First
Amendment freedoms. 8
133 This, I think, demonstrates the unlimited breadth and danger of the 'balancing
test' as it is currently being applied by a majority of this Court. Under that 'test,'
the question in every case in which a First Amendment right is asserted is not
whether there has been an abridgment of that right, not whether the abridgment
of that right was intentional on the part of the Government, and not whether
there is any other way in which the Government o uld accomplish a lawful aim
without an invasion of the constitutionally guaranteed rights of the people. It is,
rather, simply whether the Government has an interest in abridging the right
involved and, if so, whether that interest is of sufficient importance, in the
opinion of a majority of this Court, to justify the Government's action in doing
so. This doctrine, to say the very least, is capable of being used to justify almost
any action Government may wish to take to suppress First Amendment
freedoms.
134 Mr. Justice DOUGLAS, dissenting.
135 When we allow petitioner to be sentenced to prison for six years for being a
'member' of the Communist Party, we make a sharp break with traditional
concepts of First Amendment rights and make serious Mark Twain's
lighthearted comment that 'It is by the goodness of God that in our country we
have those three unspeakably precious things: freedom of speech, freedom of
conscience, and the prudence never to practice either of them.'1
136 Even the Alien and Sedition Lawsshameful reminders of an early chapter in
intolerancenever went so far as we go today. They were aimed at conspiracy
and advocacy of insurrection and at the publication of 'false, scandalous and
malicious' writing against the Government, 1 Stat. 596. The Government then
sought control over the press 'in order to strike at one of the chief sources of
disaffection and sedition.' Miller, Crisis in Freedom (1951), p. 56. There is here
no charge of conspiracy, no charge of any overt act to overthrow the

Government by force and violence, no charge of any other criminal act. The
charge is being a 'member' of the Communist Party, 'well-knowing' that it
advocated the overthrow of the Government by force and violence, 'said
defendant intending to bring about such overthrow by force and violence as
speedily as circumstances would permit.' That falls far short of a charge of
conspiracy. Conspiracy rests not in intention alone but in an agreement with one
or more others to promote an unlawful project. United States v. Falcone, 311
U.S. 205, 210, 61 S.Ct. 204, 206, 85 L.Ed. 128; Direct Sales Co. v. United
States, 319 U.S. 703, 713, 63 S.Ct. 1265, 1270, 87 L.Ed. 1674. No charge of
any kind or sort of agreement hitherto embraced in the concept of a conspiracy
is made here.
137 We legalize today guit by association, sending a man to prison when he
committed no unlawful act. Today's break with tradition is a serious one. It
borrows from the totalitarian philosophy. As stated by O'Brian, National
Security and Individual Freedom (1955), pp. 2728:
138 'The Smith Act of 1940 made it unlawful for any person to be or to become a
member of or affiliate with any society, group, or assembly which teaches,
advocates, or encourages the overthrow or destruction of any government in the
United States by force or violence. These statutes (the Smith Act together with
a 1920 amendment to the Immigration Law, Act of June 5, 1920, 41 Stat. 1008,
8 U.S.C.A. 1101, 1182), therefore, imported into our law the alien doctrine
of guilt by association, which up to this time had been regarded as abhorrent
and which had never been recognized either by the courts or by the Department
of Justice, even during the perils and excitements of the First World War.'
139 The case is not saved by showing that petitioner was an active member. None
of the activity constitutes a crime. The record contains evidence that Scales was
the Chairman of the North and South Carolina Districts of the Communist
Party. He recruited new members into the Party, and promoted the advanced
education of selected young Party members in the theory of communism to be
undertaken at secret schools. He was a director of one such school. He
explained the principles of the Party to an FBI agent who posed as someone
interested in joining the Party, and furnished him literature, including articles
which criticized in vivid language the American 'aggression' in Korea and
describe American 'atrocities' committed on Korean citizens. He once remarked
that the Party was setting up underground means of communication, and in
1951 he himself 'went underground.' At the school of which Scales was
director, students were told (by someone else) that one of the Party's
weaknesses was in failing to place people in key industrial positions. One
witness told of a meeting arranged by Scales at which the staff of the school

urged him to remain in his position in an industrial plant rather than return to
college. In Scales' presence, students at the school were once shown how to kill
a person with a pencil, a device which, it was said, might come in handy on a
picket line. Other evidence showed Scales to have made several statements or
distributed literature containing implicating passages. Among them were
comments to the effect that the Party line was that the Negroes in the South and
the working classes should be used to foment a violent revolution; that a
Communist government could not be voted into power in this country because
the Government controlled communication media, newspapers, the military,
and the educational systems, and that force was the only way to achieve the
revolution; that if a depression were to come the Communist America would be
closer at hand than predicted by William Z. Foster; that the revolution would
come within a generation; that it would be easier in the United States than in
Russia to effectuate the revolution because of assistance and advice from
Russian Communists. Petitioner at different times said or distributed literature
which said that the goals of communism could only be achieved by violent
revolution that would have to start internally with the working classes.
140 Not one single illegal act is charged to petitioner. That is why the essence of
the crime covered by the indictment is merely belief2 belief in the proletarian
revolution, belief in Communist creed.
141 Spinoza summed up in a sentence much of the history of the struggle of man to
think and speak what he believes:
142 'Laws which decree what every one must believe, and forbid utterance against
this or that opinion, have too often been enacted to confirm of enlarge the
power of those who dared not suffer free inquiry to be made, and have by a
perversion of authority turned the superstition of the mob into violence against
opponents.' Tractatus Theologico-Politicus (London 1862) p. 349.
143 'The thought of man shall not be tried, for the devil himself knoweth not the
thought of man,' said Chief Justice Brian in Y. B. Pasch, 17 Edw. IV, f. 2, pl. 2.
The crime of beliefpresently prosecutedis a carryback to the old law of
treason where men were punished for compassing the death of the King. That
law, which had been employed for 'suppression of political opposition or the
expression of ideas or beliefs distasteful to those in power,' Hurst, Historic
Background of the Treason Clause, 6 Fed.B.J. 305, 307, was rejected here, and
the treason clause of our Constitution was 'most praised for the reason that it
prevented the use of treason trials as an instrument of political faction.' Id., 307.
Sedition or treason in the realm of politics and heresy in the eccelesiastical field
ha long centered on beliefs as the abhorrent criminal act. The struggle on this

side of the Atlantic was to get rid of that concept and to punish men not for
what they thought but for overt acts against the peace of the Nation. Cramer v.
United States, 325 U.S. 1, 2830, 65 S.Ct. 918, 931933, 69 L.Ed. 1441.
Montesquieu, who was a force in the thinking of those times (id., 15, n. 21),
proclaimed against punishing thoughts or words:
'There was a law passed in England under Henry VIII, by which whoever
144 predicted the king's death was declared guilty of high treason. This law was
extremely vague; the terror of despotic power is so great that it recoils upon
those who exercise it. In the king's last illness, the physicians would not
venture to say he was in danger; and surely they acted very right. * * * Marsyas
dreamed that he had cut Dionysius's throat. Dionysius put him to death,
pretending that he would never have dreamed of such a thing by night if he had
not thought of it by day. This was a most tyrannical action: for though it had
been the subject of his thoughts, yet he had made no attempt towards it. The
laws do not take upon them to punish any other than overt acts.' The Spirit of
Laws (1949), Vol. 1, pp. 192193.
145 'Words do not constitute an overt act; they remain only in idea.' Id., 193.
146 These were the notions that led to the restrictive definition of treason, presently
contained in Art. III, 3, of the Constitution, which requires overt acts. Cramer
v. United States, supra; Haupt v. United States, 330 U.S. 631, 645, 67 S.Ct.
874, 880, 91 L.Ed. 1145 (concurring opinion); Hurst, Treason in the United
States, 58 Harv.L.Rev. 395. Our long and painful experience with the law of
treason, wholly apart from the First Amendment, should be enough warning
that we as a free people should not venture again into the field of prosecuting
beliefs.
147 That was the philosophy behind West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 641642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628:
148 'We can have intellectual individualism and the rich cultural diversities that we
owe to exceptional minds only at the price of occasional eccentricity and
abnormal attitudes. When they are so harmless to others or to the State as those
we deal with here, the price is not too great. But freedom to differ is not limited
to things that do not matter much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to things that touch the heart of
the existing order.
149 'If there is any fixed star in our constitutional constellation, it is that no official,

high or petty, can prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to confess by word or act
their faith therein. If there are any circumstances which permit an exception,
they do not now occur to us.'
150 Nothing but beliefs is on trial in this case. They are unpopular and to most of us
revolting. But they are nonetheless ideas or dogmas or faiths within the broad
framework of the First Amendment. See Barenblatt v. United States, 360 U.S.
109, 145152, 79 S.Ct. 1081, 11021106, 3 L.Ed.2d 1115 (dissent). The
creed truer to our faith was stated by the Bar Committee headed by Charles E.
Hughes which in 1920 protested the refusal of the New York Assembly to seat
five members of the Socialist Party:3
151 '* * * it is of the essence of the institutions of liberty that it be recognized that
guilt is personal and cannot be attributed to the holding of opinion or to mere
intent in the absence of overt acts * * *.'
152 Belief in the principle of revolution is deep in our traditions. The Declaration of
Independence4 proclaims it:
153 'whenever any Form of Government becomes destructive of these Ends, it is the
Right of the People to alter or to abolish it, and to institute new Government,
laying its Foundation on such Principles, and organizing its Powers in such
Form, as to them shall seem most likely to effect their Safety and Happiness.'
154 This right of revolution has been and is a part of the fabric of our institutions.5
Last century when Russia invaded Hungary and subdued her, Louis Kossuth
came here to enlist American support. On January 8, 1852, Lincoln spoke in
sympathy of the Hungarian cause and was a member of a committee which on
January 9, 1852, submitted Resolutions in Behalf of Hungarian Freedom.
Among these resolutions was one that read:
155 'That it is the right of any people, sufficiently numerous for national
independence, to throw off, to revolutionize, their existing form of government,
and to establish such other in its stead as they may choose.' Basler, Vol. II, The
Collected Works of Abraham Lincoln (1953), p. 115.
156 On January 12, 1848, Lincoln in an address before the United States House of
Representatives stated: 'Any people anywhere, being inclined and having the
power, have the right to rise up, and shake off the existing government, and
form a new one that suits them better. This is a most valuable,a most sacred

righta right, which we hope and believe, is to liberate the world.' Id., Vol. I,
p. 438.
157 Of course, government can move against those who take up arms against it. Of
course, the constituted authority has the right of self-preservation. But we deal
in this prosecution of Scales only with the legality of ideas and beliefs, not with
overt acts. The Court speaks of the prevention of 'dangerous behavior' by
punishing those 'who work to bring about that behavior.' That formula returns
man to the dark days when government determined what behavior was
'dangerous' and then policed the dissidents for tell-tale signs of advocacy. What
is 'dangerous behavior' that must be suppressed in its talk-stage has had a vivid
history even on this continent. The British colonial philosophy was summed up
by Sir William Berkeley, who served from 1641 to 1677 as Virginia's
Governor: '* * * I think God, there are no free schools nor printing, and I hope
we shall not have these hundred years; for learning has brought disobedience,
and heresy, and sects into the world, and printing has divulged them, and libels
against the best government. God keep us from both!' 2 Hening's Stat.Va. 1660
1682, p. 517. The history is familiar; much of it is reviewed in Chafee, The
Blessings of Liberty (1956). He states in one paragraph what I think is the
Jeffersonian conception of the First Amendment rights involved in the present
case:
158 'We must choose between freedom and fearwe cannot have both. If the
citizens of the United States persist in being afraid, the real rulers of this
country will be fanatics fired with a zeal to save grown men from objectionable
ideas by putting them under the care of official nursemaids.' Id., 156.
159 In recent years we have been departing, I think, from the theory of government
expressed in the First Amendment. We have too often been 'balancing' the right
o speech and association against other values in society to see if we, the judges,
feel that a particular need is more important than those guaranteed by the Bill
of Rights. Dennis v. United States, 341 U.S. 494, 508509, 71 S.Ct. 857, 866
867, 95 L.Ed. 1137; American Communications Ass'n, C.I.O. v. Douds, 339
U.S. 382, 399 400, 70 S.Ct. 674, 684685, 94 L.Ed. 928; N.A.A.C.P. v. State
of Alabama, 357 U.S. 449, 463466, 78 S.Ct. 1163, 11721174, 2 L.Ed.2d
1488; Uphaus v. Wyman, 360 U.S. 72, 7879, 79 S.Ct. 1040, 1045, 3 L.Ed.2d
1090; Barenblatt v. United States, 360 U.S. 109, 126134, 79 S.Ct. 1081,
10921097, 3 L.Ed.2d 1115; Bates v. City of Little Rock, 361 U.S. 516, 524,
80 S.Ct. 412, 417, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct.
247, 5 L.Ed.2d 231; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5
L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d
653; Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; In re

Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. This approach, which
treats the commands of the First Amendment as 'no more than admonitions of
moderation' (see Hand, The Spirit of Liberty (1960 ed.), p. 278), runs counter to
our prior decisions. See Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668,
82 L.Ed. 949; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108,
63 S.Ct. 870, 872, 87 L.Ed. 1292; West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628.
160 It also runs counter to Madison's views of the First Amendment as we are
advised by his eminent biographer, Irving Brant:
161 'When Madison wrote, 'Congress shall make no law' infringing these rights, he
did not expect the Supreme Court to decide, on balance, whether Congress
could or could not make a law infringing them. It was true, he observed in
presenting his proposals, that state legislative bodies had violated many of the
most valuable articles in bills of rights. But that furnished no basis for judging
the effectiveness of the proposed amendments:
162 "If they are incorporated into the Constitution, independent tribunals of justice
will consider themselves in a peculiar manner the guardians of those rights;
they will be an impenetrable bulwark against every assumption of power in the
Legislative or Executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights.'
163 'This statement by Madison, along with all the rest of his speech, is so
devastating to the 'balance theory' that efforts have been and are being made to
discredit its authenticity. The Annals of Congress, it is said, is not an official
document, but a compilation of stenographic reports (by a shorthand reporter
admitted to the floor for that purpose) published in the press and containing
numerous errors. That is true, although the chief complaint was that partially
caught sentences were meaningless. In general, that which was clearly reported
was truly reported. In the case of this all-important speech, Madison spoke from
notes, and the notes in his handwriting are in the Library of Congress. They
parallel the speech from end to end, scantily, but leaving no doubt of the
fundamental faithfulness of the report.' The Madison Heritage, 35
N.Y.U.L.Rev. 882, 899900.
164 Brant goes on to relate how Madison opposed a resolution of censure against
societies creating the political turmoil that was behind the Whiskey Rebellion.
Id., p. 900. He expressed in the House the view that opinions are not objects of

legislation. 'If we advert to the nature of Republican Government, we shall find

that the censorial power is in the people over the Government, and not in the
Government over the people.' Id., p. 900.
165 The trend of history, as Jefferson noted, has been against the rights of man. He
wrote that 'The natural progress of things is for liberty to yield and government
to gain ground.'6 The formula he prepared for a society where ideas flourished
was not punishment of the unorthodox but education and enlightenment of the
masses. Jefferson wrote to Madison on December 20, 1787:7
166 'I own, I am not a friend to a very energetic government. It is always
oppressive. It places the governors indeed more at their ease, at the expense of
the people. The late rebellion in Massachusetts has given more alarm, than I
think it should have done. Calculate that one rebellion in thirteen States in the
course of eleven years, is but one for each State in a century and a half. No
country should be so long without one. Nor will any degree of power in the
hands of government, prevent insurrections. In England, where the hand of
power is heavier than with us, there are seldom half a dozen years without an
insurrection. In France, where it is still heavier, but less despotic, as
Montesquieu supposes, than in some other countries, and where there are
always two or three hundred thousand men ready to crush insurrections, there
have been three in the course of the three years I have been here, in every one
of which greater numbers were engaged than in Massachusetts, and a great deal
more blood was spilt. In Turkey, where the sole nod of the despot is death,
insurrections are the events of every day. Compare again the ferocious
depredations of their insurgents, with the order, the moderation and the almost
self-extinguishment of ours. And say, finally, whether peace is best preserved
by giving energy to the government, or information to the people. This last is
the most certain, and the most legitimate engine of government. Educate and
inform the whole mass of the people. Enable them to see that it is their interest
to preserve peace and order, and they will preserve them. And it requires no
very high degree of education to convince them of this. They are the only sure
reliance for the preservation of our liberty.'
167 This is the only philosophy consistent with the First Amendment. When belief
in an idea is punished as it is today, we sacrifice those ideals and substitute an
alien, totalitarian philosophy in their stead.8
168 'The most indifferent arguments,' Bismarck said, 'are good when one has a
majority of bayonets.' That is also true when one has the votes.
169 What we lose by majority vote today may be reclaimed at a future time when

169 What we lose by majority vote today may be reclaimed at a future time when
the fear of advocacy, dissent, and nonconformity no longer cast a shadow over
us.
170 Appendix to Opinion of Mr. Justice DOUGLAS.
171 The constitutions of 15 States have, at one time or another, made specific
provision for the right of revolution by reserving to the people the right to 'alter,
reform or abolish' the existing frame of government. See Pennsylvania Const.
of 1873, Art. I, 2, P.S.Const.; Maryland Const. of 1867, Dec. of Rights, Art. I;
Virginia Const. of 1902, Art. I, 3; Alabama Const. of 1865, Art. I, 2;
Arkansas Const. of 1874, Art. II, 1; Idaho Const. of 1889, Art. I, 2; Kansas
Const. of 1958, Art. I, 2; Kentucky Const. of 1890, Bill of Rights, 4; Ohio
Const. of 1851, Art. I, 2; Oregon Const. of 1857, Art. I, 1; Tennessee Const.
of 1870, Art. I, 1; Texas Const. of 1876, Art. I, 2, Vernon's Ann.St.;
Vermont Const. of 1793, c. 1, Art. 7; West Virginia Const. of 1872, Art. 3, 3;
Wyoming Const. of 1889, Art. I, 1. Some 24 other States have, or have had,
slightly varying forms of the same provision. See New Hampshire Const., Pt. I,
Art. 10; Massachusetts Const., M.G.L.A.; Part the First, Article VII;
Connecticut Const., Article First, 2, C.G.S.A.; New Jersey Const., Art. I, 2,
N.J.S.A.; Delaware Const., Preamble, Del.C.Ann.; North Carolina Const., Art.
I, 3; South Carolina Const., Art. 1, 1; Rhode Island Const., Art. I, 1;
California Const., Art. I, 2, West's Ann.Cal.Const.; Colorado Const., Art. II,
2; Florida Const., Dec. of Rights, 2, F.S.A.; Indiana Const., Art. I, 1; Iowa
Const., Art. I, 2 I.C.A.; Maine Const., Art. I, 2; Michigan Const. of 1835,
Art. I, 2; Minnesota Const., Art. I, 1, M.S.A.; Mississippi Const., Art. 3, 6;
Missouri Const., Art. I, 3, V.A.M.S.; Montana Const., Art. III, 2; Nevada
Const., Art. I, 2; North Dakota Const., Art. I, 2; Oklahoma Const., Art. II,
1, O.S.A.; South Dakota Const., Art. VI, 26; Utah Const., Art. I, 2. The
older constitutions often add a clause which shows the roots of these provisions
in the right of revolution. 'The doctrine of nonresistance against arbitrary power
and oppression is absurd, slavish, and destructive of the good and happiness of
mankind,' the New Hampshire Const., Pt. I, Art. 10, recites. The same language
may be found in Maryland Const., Dec. of Rights, Art. 6; Tennessee Const.,
Art. I, 2.
172 These provisions have been considered by several state courts. It has been held
that the general right of the people to alter or abolish the government does not
deprive state courts from passing on the validity of constitutional amendments
peacefully passed. Wells v. Bain, 75 Pa. 39, 4649; Koehler & Lange v. Hill,
60 Iowa 543, 614617, 14 N.W. 738,1 5 N.W. 609, 614616; Bennett v.
Jackson, 186 Ind. 533, 538541, 116 N.E. 921, 922923; Erwin v. Nolan,
280 Mo. 401, 406407, 217 S.W. 837, 838839. More recently, several state

courts have had occasion to consider these provisions in connection with the
persecution of Communists. See Commonwealth v. Widovich, 295 Pa. 311, 317
318, 145 A. 295, 297 298 (State Sedition Act); Nelson v. Wyman, 99 N.H.
33, 5051, 105 A.2d 756, 770771 (legislative investigation); Braverman v.
Bar Ass'n of Baltimore, 209 Md. 328, 346347, 121 A.2d 473, 481 482
(disbarment of a lawyer convicted under the Smith Act). The last two of these
decisions relied on language in the decision of this Court in Deennis v. United
States, 341 U.S. 494, 501, 71 S.Ct. 857, 863, 95 L.Ed. 1137: 'Whatever
theoretical merit there may be to the argument that there is a 'right' to revellion
against dictatorial governments is without force where the existing structure of
the government provides for peaceful and orderly change.'
173 Yet the right of revolution has always meant more than this. 'The words * * *,'
said the court in Wells v. Bain, supra, 75 Pa. 47, 'embrace but three known
recognised modes by which the whole people, the state, can give their consent
to an alteration of an existing lawful frame of government, viz.:
174 '1. The mode provided in the existing constitution.
175 '2. A law, as the instrumental process of raising the body for revision and
conveying to it the powers of the people.
176 '3. A revolution.
177 'The first two are peaceful means through which the consent of the people to
alteration is obtained, and by which the existing government consents to be
displaced without revolution. The government gives its consent, either by
pursuing the mode provided in the constitution, or by passing a law to call a
convention. If consent be not so given by the existing government the remedy
of the people is in the third moderevolution.'
178 This does not mean the helplessness of the established government in the face
of armed resistance, for that government has the duty of maintaining existing
institutions. Wells v. Bain, supra, 75 Pa. 49. But it does mean that the right of
revolution is ultimately reserved to the people themselves, whatever formal, but
useless, remedies the existing government may offer. This is shown in the
history of our own revolution. Legislatures and governments have the right to
protect themselves. They may judge as to the appropriate means of meeting
force directed against them, but as to the propriety of the exercise of the
ultimate right of revolution, there, as John Locke says, 'The people shall be
judge.' Second Treatise on Civil Government, 240. To forbid the teaching of

the propriety of revolution, even where the teacher believes his own lesson, is
to hinder the people in the free exercise of this great sovereign right. See
Dennis v. United States, 341 U.S. 494, 581586, 71 S.Ct. 857, 903905, 95
L.Ed. 1137 (dissenting opinion).
179 Lincoln's full statement, made in 1848 and already referred to, reads:
180 'Any people anywhere, being inclined and having the power, have the right to
rise up, and shake off the existing government, and form a new one that suits
them better. This is a most valuable,a most sacred righta right, which we
hope and believe, is to liberate the world. Nor is this right confined to cases in
which the whole people of an existing government, may choose to exercise it.
Any portion of such people that can, may revolutionize, and make their own, of
so much of the teritory (sic) as they inhabit. More than this, a majority of any
portion of such people may revolutionize, putting down a minority,
intermingled with, or near about them, who may oppose their movement. Such
minority, was precisely the case, of the tories of our own revolution. It is a
quality of revolutions not to go by old lines, or old laws; but to break up both,
and make new ones.' I Basler, The Collected Works of Abraham Lincoln
(1953), pp. 438439.
181 Mr. Justice BRENNAN, with wo m The CHIEF JUSTICE and Mr. Justice
DOUGLAS join, dissenting.
182 I think that in 4(f) of the Internal Security Act Congress legislated immunity
from prosecution under the membership clause of the Smith Act. The first
sentence of 4(f) is: 'Neither the holding of office nor membership in any
Communist organization by any person shall constitute per se a violation of
subsection (a) or subsection (c) of this section or of any other criminal statute.'
The immunity granted by that sentence is not in my view restricted, as the Court
holds, to mere membership, that is to membership which is nominal, passive or
theoretical. The immunity also extends to 'active and purposive membership,
purposive that is as to the organization's criminal ends,' which is the character
of membership to which the Court today restricts the application of the
membership clause of the Smith Act.
183 In its approach to the relation of the first sentence of 4(f) to the membership
clause of the Smith Act, I think the Court asks the wrong question. The
question is not whether the Congress meant in 4(f) to 'repeal' the membership
clause of the Smith Act. The 'repeal' of a statute connotes its erasure from the
statute books. The grant of immunity from prosecution under a criminal statute

merely suspends prosecution under the statute so long as the immunity is not
withdrawn. For example, when we recently decided in Reina v. United States,
364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249, that the Narcotic Control Act of
1956, 18 U.S.C.A. 1401 et seq., legislated immunity from prosecution under
state, as well as federal, narcotics laws, our decision did not remotely suggest
that the immunity effected the 'repeal' of either the state or the federal criminal
statutes.
184 The Congress was faced with a dilemma in legislating the policy of compulsory
registration of Communists into the Internal Security Act. This statute
represented, in the words of the late John W. Davis, a policy of 'ventilation
rather than prohibition.' Communists were to be forced to expose themselves to
public view in order that the menace they present might be dealt with more
effectively. The registration provisions of the Act are the very vitals of that
measure. But compulsory disclosure of membership would compel admission
of a crime, or provide a link to proof of a crime. Communists then could invoke
their constitutional right to silence and the registration provisions would be
wrecked on the rock of the Self-Incrimination Clause of the Fifth Amendment.
It is no disparagement of the Congress to say that their deliberations reflect
great uncertainty how to resolve the dilemma. Congress wrote the Internal
Security Act knowing that the privilege against self-incrimination was a solid
barrier against compulsory self-incrimination by congressional fiat. The
legislative history of 4(f) is murky but I think there clearly emerges a
congressional decision to extend immunity from prosecution for any
membership in a Communist organization in order to safeguard against
constitutional frustration the policy of disclosure embodied in the registration
provisions.1
185 The purpose of the first sentence of 4(f) seems clear in the setting of the Act.
In 2 Congress describes the Communist Party as a group bent on
overthrowing the Government by force and violence, such as is described in the
Smith Act, and establishing a totalitarian dictatorship in the United States.
Section 4(a) makes it a crime to conspire to that end. Sections 7 and 8 provide
for compulsory registration of Communist organizations and members.
Penalties for not registering are imposed. If members were required to register
under the 1950 Act and if membership were a crime under the 1940 Act, then
self-incrimination in violation of the Fifth Amendment might be required by the
registration requirements of the 1950 Act. Plainly it was with that problem that
Congress dealt in 4(f).
186 The bills introduced in the Eighty-first Congress 2 provided for compulsory
registration of members of the Communist Party, but afforded no immunity for

registering. When the House Committee reported out its bill,3 a provision was
included which forbade receipt in evidence of the fact of registration under the
Internal Security Act. When the bill reached the floor, Congressman Celler
pointed out that the immunity provision was constitutionally insufficient. In the
first place, that bill only provided that the fact of registration under the Act
should not be received in evidence against the registrant in prosecutions under
the Act. Congressman Celler pointed out that there were other criminal statutes,
including the Smith Act, for which no immunity was granted.4 He secondly
pointed out that the immunity to be constitutionally protective must be
complete; and he discussed Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct.
195, 35 L.Ed. 1110, in support of that thesis.5 During these debates and in
response to the challenge made by Congressman Celler, the manager of the bill,
Congressman Wood, offered an amendment extending the same protection
against prosecutions 'for any alleged violation of any other criminal statute.'6 It
was adopted without discussion and the bill passed the House.
187 At that juncture it seems obvious that restricting the immunity to use of the fact
of registration in any criminal prosecution did not satisfy the constitutional
requirements. Such a limited immunity was granted by statute in Counselman v.
Hitchcock, supra. Yet as the Court stated in that case, 142 U.S. at page 564, 12
S.Ct. at page 198:
188 'This, of course, protected him against the use of his testimony against him or
his property in any prosecution against him or his property, in any criminal
proceeding, in a court of the United States. But it had only that effect. It could
not, and would not, prevent the use of his testimony to search out other
testimony to be used in evidence against him or his property, in a criminal
proceeding in such court. It could not prevent the obtaining and the use of
witnesses and evidence which should be attributable directly to the testimony
he might give under compulsion, and on which he might be convicted, when
otherwise, and if he had refused to answer, he could not possibly have been
convicted.'
189 Meanwhile the Senate bill 7 was reported out. The late John W. Davis had stated
in a letter to the Senate Committee8 that compulsory registration might make a
member 'involuntarily incriminate himself.' The Senate bill accordingly
provided that neither holding office nor membership in the Communist Party
should constitute a violation of certain provisions of the bill; and it also
provided that the fact of registration should not be received in evidence against
the registrant in prosecutions under those provisions. Senator Kilgore in a
minority report9 made the same point that Congressman Celler had made in the
Housethat this immunity provision did not even purport to avoid self-

incrimination in relation to the membership clause of the Smith Act and did not
provide that complete immunity which Counselman v. Hitchcock, supra, held
essential.
190 Senator Lehman spoke to the same effect when the bill reached the floor: 10
191 "In support of the statement made by the Senator from Illinois that the real
Communists would simply fail to register, and could not be forced to register,
and would be outside the control of the law-enforcement officials, is it not a
fact that there would be every reason why a real Communist should not register
because if he did register, would not he make himself liable to incrimination
under the Smith Act?'
192 'Mr. Douglas. 'Certainly.'
193 'Mr. Lehman. 'So he would be virtually pleading guilty of a penal offense;
would he not?'
194 'Mr. Douglas. 'Yes; the real leaders would be."
195 Senator Lehman stated on another day of the debate:11
196 'What dyed-in-the-wool Communist will run to the nearest registration office to
list himself as such and expose himself to the penalties contained in the MundtFerguson bill? Obviously, if he did, he would lose all of his effectiveness as a
Communist, besides subjecting himself to the penalties set forth in this bill. He
would also expose himself to the penalties set forth in other laws, such as the
Smith Act, under which the 11 top Communist leaders were recently convicted.
In fact, registration would constitute self-incrimination, if not under the terms
of this law, then under the terms of the Smith Act. Obviously, the Communists
would not register.'
197 Senator Humphrey voiced the same objection: 12
198 '* * * his registration would be equivalent to testimony; and under the
interpretation of very prominent attorneys,13 it could be that he could be
prosecuted under the Smith Act.'
199 The answers to these objections were wide of the mark. Senator McCarran said
that the registrant a immunized from prosecutions under 4 of the bill.14 The

relevancy of the Smith Act was not recognized. Senator Ferguson and Senator
Mundt likewise did not meet the point. They noted15 that membership was held
irrelevant to the Smith Act in the prosecution of Dennis v. United States, supra,
overlooking the fact that that case involved not membership but a conspiracy to
practice the Communist dogma.
200 But no change in the bill was made in this respect before it passed the Senate.
The important changes in 4(f)the ones that are critical heretook place in
Conferences.16 No contemporary statement of the intended sweep of the revised
4(f) is in the legislative record. But I have set out enough history to indicate
that the motivation was clearly the fear that the immunity granted under the
earlier versions of the bill was not constitutionally sufficient to compel
registration, since it did not extend to prosecutions under the membership
clause of the Smith Act.
201 When the bill came back from the Conference Committee Congressman Multer
referred to 4(f) in its new form and predicted it would 'vitiate one of the most
important parts of the Smith law.'17 No reply was made to his comments. And
only brief reference was made to 4(f) in the Senate. Senator Kefauver said,18
'There is nothing in the bill which provides that when a person registers that
fact shall not be used in evidence against him in connection with the Smith
Act.'19 But that statement is irrelevant to our problem because the Senator
apparently did not realize that the bill had been amended in Conference to
include the words 'or any other criminal statute.' Senator Kilgore stated that the
Conference bill differed from the one approved by the Judiciary Committee
over his dissent, since it nullified the Smith Act.20 No one challenged the
statement.
202 From this legislative history it seems tolerably clear that one purpose of 4(f)
was to protect registrants from prosecution under the membership clause of the
Smith Act.
203 The Court holds, however, that the first sentence of 4(f) is simply 'a mandate
to the courts charged with the construction of subsections (a) and (c) 'or * * *
any other criminal statute' that neither those two named criminal provisions nor
any other shall be construed so as to make 'membership * * * per se a
violation." If the phraseology were that immunity is extended only to
'membership per se,' there might be support for the argument that the immunity
granted by 4(f) extends only to nominal membership, excluding the type of
active membership which we have here. But the statute does not say
'membership per se.' It provides that '(n)either the holding of office nor
membership in any Communist organization shall constitute per se a violation

of subsection (a) or subsection (c) of this section or of any other criminal

statute.' The kind of membership given immunity is not restricted. It may be
nominal, short-term, long-term, dues-paying, non-dues-paying, inactive, or
active membership. Every type of membership is included. What the Congress
is saying is that no type of membership shall violate alone or by itself (that is to
say, per se) any criminal statute. When Congress said that membership 'shall
not constitute per se' a violation of any criminal statute, it meant that additional
conduct besides membership, whatever its nature, is necessary to constitute a
violation. Only by transposing per se in 4(f) and making it modify
'membership' can the Court's argument be made plausible. That entails a
substantial revision of the Act and a drastic dilution of rights of immunity
which have been granted by it.
204 If the Court is correct in its view, the constitutionality of registration provisions
of the 1950 Act are called into question. True, today's decision in Communist
Party of America v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct.
1357, 6 L.Ed.2d 625, puts off to another day the constitutionality of the
registration provisions in their conflict with the Fifth Amendment; I have noted
my dissent as to the provision of the registration requirements that designated
officials of the Party must complete, sign, and file the Party's registration
statement. But if 'active membership' remains a crime under the Smith Act,
there would be a serious question whether any Communistactive or nominal
could constitutionally be compelled to register under the 1950 Act. For it
could be urged that the act of registering would supply one link that might
complete the chain of evidence against him under the Smith Act. It is no
answer to that contention that mere membership would not support a
conviction. As we said in Blau v. United States, 340 U.S. 159, 161, 71 S.Ct.
223, 224, 95 L.Ed. 170:
205 'Whether such admissions by themselves would support a conviction under a
criminal statute is immaterial. Answers to the questions asked by the grand jury
would have furnished a link in the chain of evidence needed in a prosecution of
petitioner for violation of (or conspiracy to violate) the Smith Act. Prior
decisions of this Court have clearly established that under such circumstances,
the Constitution gives a witness the privilege of remaining silent. The attempt
by the courts below to compel petitioner to testify runs counter to the Fifth
Amendment as it has been interpreted from the beginning.'
206 This principle had been an established one ever since Counselman v.
Hitchcock, supra, was decided.
207 The registration provisions of the 1950 Act were the very heart of that law.

Disclosure of who the Communists were was the provision from which all
other controls stemmed. As the Senate Report stated,21 the registration
requirement is the 'central provision' of the Act, the purpose being '(a) to
expose the Communist movement and protect the public against innocent and
unwitting collaboration with it; (b) to expose, and protect the public against,
certain acts which are declared unlawful.'
208 A fair and literal reading of 4(f) can save the 1950 Act against this Fifth
Amendment objection. By reading 4(f) to provide that being a member of the
Communist Party shall not 'constitute per se' a crime, immunity from
prosecution under the membership clause of the Smith Act is effected. And that
is in full harmony with the purpose to make something more than 'membership'
necessary for conviction. That something more can be some kind of unlawful
activity. After the 1950 Act was passed, membership without other activity was
no longer sufficient for Smith Act prosecutions. That seems to me to be the
only fair way to read 4(f). That conclusion necessarily requires a dismissal of
ths indictment.

Section 2385 (whose membership clause we place in italics) reads: 'Whoever

knowingly or willfully advocates, abets, advises, or treaches the duty, necessity,
desirability, or propriety of overthrowing or destroying the government of the
United States or the government of any State, Territory, District or Possession
thereof, or the government of any political subdivision therein, by force or
violence, or by the assassination of any officer of any such government; or
'Whoever, with intent to cause the overthrow or destruction of any such
government, prints, publishes, edits, issues, circulates, sells, distributes, or
publicly displays any written or printed matter advocating, advising, or teaching
the duty, necessity, desirability, or propriety of overthrowing or destroying any
government in the United States by force or violence, or attempts to do so; or
'Whoever organizes or helps or attempts to organize any society, group, or
assembly of persons who teach, advocate, or encourage the overthrow or
destruction of any such government by force or violence; or becomes or is a
member of, or affiliates with, any such society, group, or assembly of persons,
knowing the purposes thereof
'Shall be fined not more than $20,000 or imprisoned not more than twenty
years, or both, and shall be ineligible for employment by the United States or
any department or agency thereof, for the five years next following his
conviction.

'If two or more persons conspire to commit any offense named in this section,
each shall be fined not more than $20,000 or imprisoned not more than twenty
years, or both, and shall be ineligible for employment by the United States or
any department or agency thereof, for the five years next following his
conviction.'
2

Petitioner was first convicted before a jury in the Middle District of North
Carolina in 1955. The conviction was upheld by the Court of Appeals, 4 Cir.,
227 F.2d 581, and we granted certiorari at the 1955 Term. 350 U.S. 992, 76
S.Ct. 542, 100 L.Ed. 858. The case was first heard here at the 1956 Term, and
was later set for reargument at the 1957 Term. Before reargument the judgment
of conviction was reversed, upon the Solicitor General's concession that this
Court's intervening decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct.
1007, 1 L.Ed.2d 1103, in any event entitled Scales to a new trial. Scales was
retried and again convicted in 1958. The Court of Appeals again affirmed, 260
F.2d 21, and we again brought the case here. 358 U.S. 917, 79 S.Ct. 289, 3
L.Ed.2d 237. Argument on the present writ was first heard at the 1958 Term,
the case being set for reargument at the following Term under an order in
which the Court propounded certain questions to which counsel were requested
particularly to address themselves. 360 U.S. 924, 79 S.Ct. 1444, 3 L.Ed.2d
1540. Before reargument was had, certiorari was granted (361 U.S. 951, 80
S.Ct. 502, 4 L.Ed.2d 536) in Communist Party v. Subversive Activities Cot rol
Board, No. 12, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, certain of the
statutory and constitutional issues in which were closely related to some of
those in the Scales case. Because of this interrelation of the two cases, the
Court deemed it advisable that they should be heard and considered together,
and accordingly put over this case for argument with the Communist Party case
at the present Term. 361 U.S. 952, 80 S.Ct. 500, 4 L.Ed.2d 536.

E.g., 18 U.S.C. 2385, 18 U.S.C.A. 2385 (the remaining provisions of the

Smith Act); 29 U.S.C. 159(h), 29 U.S.C.A. 159(h), repealed by the LaborManagement Reporting and Disclosure Act of 1959, 73 Stat. 519, 201(d)
(non-Communist affidavits to be filed by union officers); or any of the offenses
created by the Internal Security Act of 1950, for instance under 4, 5 or 6.

The report also stated: 'Nowhere does the bill restrict or impair the
constitutional privilege against self-incrimination under the fifth amendment. *
* * As to whether any registration itself infringes upon the privilege of selfincrimination, * * * (w)ith respect to individual members, a person may be
compelled to register, keep records, make reports or statements, etc.,
concerning any activity which the State properly may regulate, and he is not
protected therefrom by the privilege * * *. This becomes purely academic,
however, in the light of the specific bar to self-incrimination written into section

4(f).' Id., at pp. 2021.

5

Senator Lehman, arguing that the bill required self-incrimination, stated:

'We already have on the statute books more than 20 laws to control and
penalize subversive activities. * * * We also have the Smith Act, recently
upheld by the Court of Appeals, which makes membership in the Communist
Party prima facie evidence of criminal intent. * * *
'* * * (R)egistration would constitute self-incrimination, if not under the terms
of this law, then under the terms of the Smith Act.' 96 Cong.Rec. 14190.
As the debate continued, Senator Long said:
'I was under the impression from hearing the Senator from New York
yesterday, that he said that under a previous statute it was unlawful to belong to
an organization that advocated the overthrow of the United States government
by force * * * that there was a previous act * * * which made it unlawful for
one to be a member of (such) an organization * * *.
'Senator Ferguson. It is not true that Judge Medina, in his charge to the jury in
the trial of the 11 Communists, told them that mere membership in the
Communist Party was not sufficient to warrant the jury in convicting them
under the Smith Act? (The petitioner in the present case correctly notes that this
reference was to the
Dennis case involving an indictment for conspiracy to advocate, not the
membership clause of the Smith Act.)
'Mr. Mundt (who was one of the proponents of the original bill). Precisely.
'Mr. Ferguson. So that it could not apply to that law.
'Mr. Mundt. It could not conceivably apply. * * * (I)t would still be an incorrect
interpretation of the (Smith) Act. * * *' 96 Cong.Rec. 14235.
Senator McCarran, whose name the new omnibus Senate measure bore, stated
in connection with the Smith Act:
'It was arresting to hear the Senator from New York declare on Tuesday that'
(t)he Smith Act * * * makes membership in the Communist Party prima facie
evidence of criminal intent.'
'* * * (O)f course, the statement about the Smith Act making membership in
the Communist Party prima facie evidence of criminal intent simply has no

foundation in fact.
'* * * Of course, in order to make a statement like the one he made a man must
not have read Judge Medina's scholarly charge to the jury, in which he
specifically pointed out that the Communist membership or affiliation of the 11
defendants was not * * * a part of the charged offense * * *.
'Mr. President, subsection 4(f) provides as follows: 'neither the holding of office
nor membership * * * shall constitute a violation of subsection (a) * * *.'
'* * * I hope the Senator from New York may find time to read (the section as a
whole), and then I hope he may see fit to tell the Senate whether he still thinks
Communists, as such, would obviously be indictable and subject to
imprisonment under section 4(a).' 96 Cong.Rec. 1444214443. (Emphasis
supplied.)
6

Perhaps the closest we come to any suggestion that 4(f) repeals, pro tanto, the
Smith Act is the statement by Representative Multer of New York, an opponent
of the measure, during the debate on the final version of the bill: 'Another very
bad provision in this bill is the newto this Housefirst sentence (of 4(f)) *
* *.
'I venture to predict that if this bill becomes law you not only vitiate one of the
most important parts of the Smith law, but you will give a new argument and
defense to the 11 Communists recently convicted in the Federal court in New
York of crimes against the United States, as proscribed in the Smith law,' 96
Cong.Rec. 15289, or a similar argument against the bill by Senator Kilgore, 96
Cong.Rec. 15192.

Petitioner makes reference to the legislative history of an amendment to the

Communist Control Act of 1954, 50 U.S.C.A. 841 et seq., S. 3706, 83d
Cong., 2d Sess., introduced and passed with modifications in a hurried and
confused debate in both Houses. The amendment, proposed by Senator
Humphrey, provided that it would be criminal knowingly and wilfully to
become or remain a member of the Communist Party, or any other organization
whose purpose is to overthrow the government by force and violence. The
amendment was opposed by the proponents of the Internal Security Act of
1950, among others, on the grounds that it would impair the effectiveness of
4(f) of the 1950 Act, possibly rendering the registration provisions of that Act
unconstitutional. But it seems clear that this result was conceived to flow from
the fact that the amendment mentioned the Communist Party by name, thus
making registration tantamount to an admission of the crime itself. As
Representative Halleck, the then majority leader who opposed the amendment,
put it:

'* * * (W)e have the Internal Security Act of 1950, which was worked out after
the most careful consideration * * * and the Smith Act, under which we have
had more than 100 indictments and sixty-some convictions, all of Communist
leaders * * *. Those act we have on the books * * * they have established
themselves.
'* * * (T)he Attorney-General * * * (s)peaking of the Internal Security Act * *
* said: 'Essential to the validity of this careful plan, however, is the provision of
section 4(f) of the act * * *. It is apparent that the enactment of legislation
making membership in the Communist Party per se a crime would be indirect
conflict with these provisions of the Internal Security Act. If membership alone
is made criminal, to require him to declare his membership is to require him to
give self-incriminating evidence. By nullifying this portion of the act, its entire
operation would be jeopardized * * *.'
'In other words, what we are doing permits outlawing the Communist Party,
and maintaining the Internal Security Act, the Smith Act, and all other acts by
which we deal realistically with the Communist conspiracy.' 100 Cong.Rec.
14658.
There is no doubt that the Humphrey amendment is in many respect similar to
the membership clause. But it was assumed by many of the proponents of the
1950 Act, perhaps illogically and under a misapprehension as to the law, that
the amendment should be defeated to preserve the integrity of the 1950 Act and
the Smith Act. Certainly it was considered by no one that the membership
clause had been repealed, or its application to Communists barred by 4(f) of
the 1950 Act.
8

November 18, 1951, to November 18, 1954. See 18 U.S.C. 3282, 18

U.S.C.A. 3282.

'No person shall * * * be deprived of life, liberty or property, without due

process of law * * *.'

10

'Congress shall make no law * * * abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.'

11

While the Government undertakes to defend the statute in the absence of either
or both of such elements, its ultimate constitutional position rests on the
presence of both.

12

'In all criminal prosecutions, the accused shall enjoy the right * * * to be
informed of the nature and cause of the accusation * * *.'

13

See note 27, infra.

14

The statute allows a fine of not more than $10,000 and imprisonment for not
more than ten years to be imposed, and makes one convicted under the statute
ineligible for employment by the United States or any department or agency
thereof for five years following conviction. Petitioner was sentenced to
imprisonment for six years.

15

The element of 'activity' in the proscribed membership stands apart from the
ingredient of guilty 'knowledge' in that the former may be shown by a
defendant's participation in general Party affairs, whereas the latter requires
linking him with the organization's illegal activities.

16

But compare Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct.
641, 71 L.Ed. 1095; Burns v. United States, 274 U.S. 328, 47 S.Ct. 650, 71
L.Ed. 1077, sustaining state convictions under the organizing and membership
provisions of the California Criminal Syndicalism Act, West's Ann.Cal.Pen.
Code, 11400 et seq.

17

Complicity has been defined thus: 'A person is an accomplice of another person
in commission of a crime if:
'(a) With the purpose of promoting or facilitating the commission of the crime,
he
'(1) commanded, requested, encouraged or provoked such other person to
commit it; or
'(2) aided, agreed to aid or attempted to aid such other person in planning or
committing it * * *
'(b) acting with knowledge that such other person was committing or had the
purpose of committing the crime, he knowingly, substantially facilitated its
commission * * *.' American Law Institute, Model Penal Code 2.04(3),
tentative draft No. 1 (1953). The formulation restates the statutory provisions
generally found in jurisdictions in the United States. See, e.g., 18 U.S.C. 2(a),
18 U.S.C.A. 2(a); Ariz.Code Ann., 1939, 43116, A.R.S. 13137, 13
139, 13141, 13143; Vernon's Texas Stat., 1952, Pen.Code, Art. 70; cf.
Criminal Code of Canada, Tremeear's, 1944, 69. It should be noted that the
membership clause as here construed is more limited than subsection (b) of this
provision, since it is not enough that one had knowingly facilitated the
substantive criminal conduct, but there must also be present the specific
purpose of facilitating it.

There is, of course, considerable overlap between the law of complicity and the
law of conspiracy, and genuine problems arise as to whether a conspirator is, by
reason of his conspiracy, to be considered an accomplice and therefore guilty
also of the substantive offense. See ALI, Model Penal Code, tentative draft No.
1 (1953), at pp. 2033; Developments in the LawCriminal Conspiracy, 72
Harv.L.Rev. 922, 9931000 (1959). But we are solely concerned here with
pointing up the accepted limits of imputation of guilt, not with exploring the
problems created by the various provisions by which such imputation is
effected.
18

The problems in attributing criminal behavior to an abstract entity rather than to

specified individuals, though perhaps difficult theoretically, as a practical
matter resolve themselves into problems of proof. Whether it has been
successfully shown that a particular group engages in forbidden advocacy must
depend on the nature of the organization, the occasions on which such
advocacy took place, the frequency of such occasions, and the position within
the group of the persons engaging in the advocacy. (See pages 253254 of 367
U.S., pages 14981499 of 81 S.Ct., infra.) Understood in this way, there is no
great difference between a charge of being a member in a group which engages
in criminal conduct and being a member of a large conspiracy, many of whose
participants are unknown or not before the court. Whatever difficulties might
be thought to inhere in ascribing a course of criminal conduct to an abstract
entity are certainly cured, so far as any particular defendant is concerned, by
the requirement of proof that he knew that the organization engages in criminal
advocacy, and that it was his purpose of further that criminal advocacy.

19

See generally Hart, The Aims of the Criminal Law, 23 Law & Contemp.Prob.
401 (1958).

20

Compare concurring opinion of Mr. Justice Brandeis in Whitney v. People of

State of California, 274 U.S. 357, 372, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095.

21

As both sides appear to agree that the 'clear and present danger' doctrine, as
viewed and applied in Dennis, supra, 341 U.S. at pages 508511, 71 S.Ct. at
pages 866868, also reaches the membership clause of the Smith Act, and
since the petition for certiorari tenders no issue as to the method of applying it
here, we do not consider either question.

22

That statute gives the Court power upon review to 'direct the entry of such
appropriate judgment * * * as may be just under the circumstances.'

23

Petitioner complains that the evidence as to Party activities emanating from

such witnesses as Lautner, Hartle, Duran, and Jones, was inadmissible because
not tied up with him. This confuses the nature of the offense Congress has

created, for it is important as a preliminary matter, without adverting to the

particular defendant in the prosecution, to prove the character of the
organization of which he is charged with being a member. The other side of
petitioner's claim on this score would entail giving greater or conclusive weight
to petitioner's admissions as to the nature of the Party merely because he is the
defendant in this case. But that would be as illogical on the preliminary
question as would be excluding evidence not connected up with petitioner. The
evidence as to Scales' words and deeds is weighty and strong against the Party
only because of his position in the Party, not because he is the defendant here.
24

As stated by Clontz: 'Scales said that we could not expect the Soviet Union to
land troops to start our revolution and finish it.
'Scales further said that experience had taught the Communists that that sort of
approach was disastrous, * * * that they in China, the Communists, had sent in
Russian generals and the only result had been that the Chinese Communists had
been licked completely, that the new approach, of the Soviet Union, was shown
in the example of Mao, who was then Mao-Tse-Tung, who was then the leader
in the Communist Chinese Government.
'He pointed out that Mao had never even been to Russia, but instead the Soviet
Union and the Soviet Communist Party had sent over military leaders to
instruct Mao, and his leaders, and had sent over professional revoluntionaries
that could aid them in bringing about their revolution.
'He said that we could count on drawing on the experience of the Soviet Union,
and that they also would furnish us when the revolution came with experienced
revolutionaries from Russia.'

25

At one point in the course of instructing Clontz, Wilkerson wrote out the
formula 'M-L=F&V' which he told Clontz illustrated the position adopted by
the appellate courts in the United States that Marxist-Leninist teaching equalled
force and violence. Clontz testified:
'Doxey Wilkerson explained to me that since that formula had been established,
action had had to be taken by the National Party to conceal the fact that their
principles and their goal and their aims and their doctrines included forceful
and violent revolution. He pointed out, for example, that an official statement
had been issued by the Education Commission of the Communist Party U.S.A.
disowning or disclaiming certain study outlines, certain texts, certain
publications put out by the Communist Party.
'In fact, the order had ordered all Communist Party members to turn those in,
and the statement, he said, after that particular dateI don't recall the exact

datehad said henceforth, we will not recognize these as official Party

publications.
'He said by doing that they accomplished two things. They, first of all,
established a technicality for Communists on trial and their attorneys, that the
Party no longer accepted Marxism-Leninism, because, he said, all MarxismLeninism included in its teachings and in its concept the basis of a violent
revolution.
'He said, secondly, that it did not unduly hamper the Communist Party, that in
the future many things would be left unsaid that previously had been said,
many things would be left unwritten that previously had been written, that, for
example, in teaching a more bare outline, would be given, and the instructor
would fill in the revolutionary part, or the students would be sent into the
Marxist-Leninist works as references to find the revolution, without having it
spelled out in the outline.
'He said, that, naturally, would not change the basic Party goal or the basic
aims of the Communist Party, but that it would make it more difficult for
Communists to be convicted.
'One thing I recall during our discussion, he had given me a pamphlet, a study
outline entitled White Chauvinism, and he pointed out to me, he said, 'Now I
have been instructing you from that outline, but technically it is illegal because
we Communists have disclaimed it, so that you are holding an illegal document
there, actually."
26

One of Childs' early tasks, assigned him by the District Organizer, as a

Communist Party member was to serve as bodyguard for a visiting official of
the Civil Rights Congress. The official, accompanied by Childs and petitioner,
spoke in Chapel Hill in February of 1951 on the Korean War. His theme,
according to Childs, was 'that the Korean War was being used by the capitalists
as a means or oppressing the Negro people * * * that the capitalists are sending
the Negroes to Korea to fight the Korean people who are trying to fight for their
rights, the same as the Negro people are in the South.' Childs took notes on the
speech, and testified that the official's 'exact words' were:
'In Korea they are still called niggers. Niggers are court-martialed for refusing
to have their men slaughtered. Lieutenant Gilbert is one example. They say that
the nigger is yellow. Yellow, give the niggers in North Carolina and Georgia
rifles and tell them to fight for their rights. Yellow, man, you will see fighting
like you have never seen before.'

27

The trial court charged: 'Moreover, the teaching in the abstract or teaching

objectively, that is, teaching, discussing, explaining, or expounding what is

meant by the aim or purpose of any author, group, or society of overthrowing
the Government by force and violence is not criminal. For example, study and
discussion by the Communist Party or by any other group in classrooms, or in
study groups, or public or private meetings with the object of informing the
participants or the audience of the aims and purposes of the doctrines of Marx,
Lenin, Stalin, or the Communist Party is entirely lawful. Furthermore, without
being criminal, the Communist Party could privately or publicly endeavor to
persuade its members that they should adopt and espouse the belief that the
Government of the United States should be overthrown by force and violence
as speedily as circumstances will permit. This is no more than advocating an
idea, and advocating an idea is no crime. Moreover, without transgressing the
Smith Act, the Party might even instruct its members that it would be for their
good and benefit, if this belief or idea wr e carried into effect.
'All of this is permissible because such utterances are protected by the First
Amendment of the Federal Constitution, guaranteeing freedom of speech.
'However, if the Party went further, and with the intention of overthrowing
Amendment of the Federal Constitution, taught, or advocated a rule or principle
of action which both, one, called on its members to take forcible and concrete
action at some advantageous time thereafter to overthrow the Government by
force and violence, and, two, expressed that call in such written or oral words as
would reasonably and ordinarily be calculated to incite its members to take
concrete and forcible action for such overthrow; then, if the Communist Party
did that, the Party became such a society or group, as was outlawed by the
Smith Act.
'To be criminal the teaching or advocacy, or the call to action just described
need not be for immediate actiion, that is, for action today, tomorrow, next
month, or next year. It is criminal, nonetheless, if the action is to be at an
unnamed time in the future, to be fixed by the circumstances or on signal from
the Party.
'It is criminal if it is a call upon the members to be ready, or to stand in
readiness for action, or for a summons to action at a favorable, or opportune
time in the future, or as speedily as circumstances will permit, provided always
that the urging of such readiness be by words which would reasonably and
ordinarily be calculated to spur a person to ready himself for, and to take action
towards, the overthrow of the Government. But those to whom the advocacy or
urging is addressed must be urged to do something now or in the future, rather
than merely to believe in something. In other words, the advocacy must be of
concrete action, and not merely a belief in abstract doctrine. However, the

immediate concrete action urged should be intended to lead towards the

forcible overthrow, and be so understood by those to whom the advocacy is
addressed.'
28

Although most of the particularized evidence related toe vents not within the
limitations period, it was of course open to the jury, under proper instructions
which were given, to infer that such events reflected the character of Party
advocacy during the limitations period. Petitioner does not contend to the
contrary.

29

The trial court charged: 'The defendant admits that he was a member of the
Party. For his membership to be criminal, however, it is not sufficient that he be
simply a member. It must be more than a nominal, passive, inactive, or purely
technical membership. In determining whether he was an active or inactive
member, consider how much of his time and efforts he devoted to the Party. To
be active he must have devoted all, or a substantial part, of his time and efforts
to the Party.'

18 U.S.C. 2385, 18 U.S.C.A. 2385.

341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.

354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356.

50 U.S.C. 783(f), 50 U.S.C.A. 783(f).

The fact that the Court's rewriting of the statute, has in this case, narrowed the
statute rather than broadened it does not change this conclusion. Petitioner has a
right to have the constitutionality of the statute considered on the basis upon
which it was originally written, for that was the condition of the statute when
he violated it. The danger of the practice in which the Court is engaging is
pointed up by its decision in the companion case, communist Party v.
Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625,
in which it imposes the burden upon the members of that Party to guess as to
what sections of the Subversive Activities Control Act will be held
unconstitutional. The difficulty of that burden is tremendously increased by the
decision in this case for they cannot know how many and what kind of
additional requirements will be found to be 'implied' and placed into the
'balance' by which the constitutionality of questionable provisions of that Act
will be determined.

Cohen v. Hurley, 366 U.S. 117, 131, 81 S.Ct. 954, 972, 6 L.Ed.2d 156
(dissenting opinion). See also Konigsberg v. State Bar of California, 366 U.S.
36, 56, 81 S.Ct. 997, 1010, 6 L.Ed.2d 105 (dissenting opinion).

Konigsberg v. State Bar of California, 366 U.S. 36, 51, 81 S.Ct. 997, 1007, 6
L.Ed.2d 105. See also Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3
L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3
L.Ed.2d 1115; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148;
Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden
v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653; In re Anastaplo,
366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. In each of these cases, I disagreed, as
I still do, with the majority's characterization of the abridgment involved as
'incidental,' as I understand that term to have significance in First Amendment
cases. See particularly my dissenting opinion in the Konigsberg case, supra,
366 U.S. at pages 6871, 81 S.Ct. at pages 10161018.

The decisions in both of the cases upon which the Court here relies were rested
on the 'balancing test.' See Dennis v. United States, supra, 341 U.S. at pages
506511, 71 S.Ct. at pages 865868; Yates v. United States, supra, 354 U.S.
at page 321, 77 S.Ct. at page 1078.

Following the Equator (1903), Vol. I, p. 198.

The prototype of the present prosecution is found in Communist lands. The

Communist Government in Czechoslovakia on October 6, 1948, promulgated a
law, 3 of which provided:
'(1) Whoever publicly or before several people instigates against the Republic,
against its independence, constitutional unity, territorial integrity or its people's
democratic system (of government), its social or economic order, or against its
national character as guaranteed by the Constitution, shall be punished for a
minor crime by rigorous confinement for from three months to three years.
'(2) The following shall be punished in like manner: Whoever intentionally or
through gross negligence makes the dissemination of the instigative statement
specified in Subsection 1 possible or easy.'

N.Y.L.Doc., 143d Sess., 1920, Vol. 5, No. 30, p. 4.

'When honest men are impelled to withdraw their allegiance to the established
law or custom of the community, still more when they are persuaded that such
law or custom is too iniquitous to be longer tolerated, they seek for some
principle more generally valid, some 'law' of higher authority, than the
established law or custom of the community. To this higher law or more
generally valid principle they then appeal in justification of actions which the
community condemns as immoral or criminal. They formulate the law or
principle in such a way that it is, or seems to them to be, rationally defensible.
To them it is 'true' because it brings their actions into harmony with a rightly

ordered universe, and enables them to think of themselves as having chosen the
nobler part, as having withdrawn from a corrupt world in order to serve God or
Humanity of a force that makes for the highest good.' Becker, The Declaration
of Independence (1942), pp. 277278.
5

See the Appendix to this opinion, 376 U.S. 275, 81 S.Ct. 1509.

7 The Writings of Thomas Jefferson (Memorial ed. 1903) p. 37.

6 The Writings of Thomas Jefferson (Memorial ed. 1903) pp. 391392.

Gellhorn, American Rights (1960), in commenting on Dennis v. United States,

341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, and Yates v. United States, 354
U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, states:
'The aftermath of the Yates case is interesting. By the end of 1956 convictions
of Communist leaders under the Smith Act had numbered 114. Many of these
cases were still pending in the appellate courts when the Yates decision was
announced in June of 1957. On one ground or another, convictions were set
aside and new trials were granted to many of these defendants. The Department
of Justice itself dropped the prosecution of a considerable number, on the
ground that they could not properly be convicted on the basis of the evidence
now available. Most significantly of all, the cases against the nine remaining
defendants in Yates, as to whom the Supreme Court had refused to dismiss the
charges, were abandoned by the prosecution because there was insufficient
evidence that they had advocated action as distinct from opinion. After all the
clamor, after all the expressed alarm about the peril into which the United
States was being plunged by this handful of misguided fanatics, the prosecution
felt itself unable to show persuasively that the Communist spokesmen had
engaged in the forbidden incitements to illegality.
'This should stimulate a sober second look at the surface attractions of
programs of suppression and coercion. Occasionally the supporters of these
programs are scoundrels who falsely parade themselves as upholders of
democracy; but more often they are good and sincere men. Men genuinely
devoted to worthy ends sometimes endorse efforts to force unanimity of
sentiment, not because they consciously espouse u thoritarianism, but because
they hope thus to assure maximum support for the nation and its people. No
matter how well intentioned they may be, however, those efforts themselves
create a graver danger than they overcome. The perils sought to be suppressed
are regularly overestimated. History shows in one example after another how
excessive have been the fears of earlier generations, who shuddered at menaces
that, with the benefit of hindsight, we now know were mere shadows. This in
itself should induce the modern generation to view with prudent skepticism the

recurrent alarms about the fatal potentialities of dissent. In any event, in a world
torn between the merits of freedom and the blandishments of totalitarian power,
the lovers of freedom cannot afford to sacrifice their moral superiority by
adopting totalitarian methods in order to create a self-deluding sense of
security. Suppression, once accepted as a way of life, is likely to spread. It
reinforces the herd urge toward orthodoxies of all kindsreligious, economic,
and moral as well as political.' Pp. 8283.
1

Senator McCarran, the floor manager of the bill in the Senate, spoke of the
exposure of Communists as one of the 'principal objectives' of the bill. 96
Cong.Rec. 14174.
The other principal objective was the definition of certain conduct as criminal,
it being the sense of Congress that existing provisions to preserve the security
of the Nation were inadequate (H.R.Rep. No. 2980, 81st Cong., 2d Sess., p. 2;
S.Rep. No. 1358, 81st Cong., 2d Sess., p. 7; 96 Cong.Rec. 1417414175) and
not effective to combat the threat of subversion from within. The criminal
provisions of the Internal Security Act are broad and comprehensive. Section
4(a) prohibits conspiracy to perform any act which would substantially
contribute to the establishment of a totalitarian dictatorship under the direction
and control of a foreign power. Section 4(b) makes it unlawful for a
governmente mployee without authorization to communicate classified
information to anyone whom he believes to be a representative of a foreign
government or member of a Communist organization, and 4(c) prohibits the
receipt of such information. Section 10 prohibits a Communist organization
from using the mails or broadcasting on any radio or television station without
designating, by printing on the envelope or announcement as the case may be,
that it is 'a Communist organization.' A member of a Communist organization
which is registered or ordered to register by the Subversive Activities Control
Board, who has knowledge or notice of such registration or order, cannot fail to
disclose his membership when he is seeking or accepting employment by the
United States or at any defense facility. It is also unlawful for such a person to
hold employment under the United States or in any defense facility if he is a
member of a Communist-action organization. 5(a). Such a person cannot
apply for or use a passport. 6(a). The Act also modified several existing
statutes dealing with subversives and espionage in order to expand their
coverage. These extensive criminal provisions belie the thought that Congress
regarded the Smith Act as the main gun in the arsenal of antisubversive
weapons. The many allusions to the fact that Communists were being more
covert in their activities so as to avoid coming within the provisions of the
Smith Act make it clear that that Act was not to be of major importance in the
campaign against domestic Communists.

S. 2311, 81st Cong., 2d Sess.; H.R. 9490, 81st Cong., 2d Sess.

H.R. 9490, 81st Cong., 2d Sess.; see H.R.Rep. No. 2980, 81st Cong., 2d Sess.,
p. 8.

96 Cong.Rec. 13739.

Id., 13740.

Id., 13761.

S. 4037, 81st Cong., 2d Sess.

S.Rep. No. 1358, 81st Cong., 1st Sess., pp. 4344.

S.Rep. No. 2369, Pt. 2, 81st Cong., 2d Sess., pp. 1213.

10

96 Cong.Rec. 14421.

11

Id., 14190.

12

Id., 14500.

13

This reference apparently was to Charles Evans Hughes, Jr. and John W. Davis.
Id., 14500. The statement of Mr. Davis is referred to in note 8, supra. That of
Mr. Hughes can be found in Hearings on H.R. 5852, Senate Committee on the
Judiciary, 80th Cong., 2d Sess. 415420.

14

'In the opinion of the chairman of the Committee on the Judiciary, this
provision leans over backward to protect Communists against selfincrimination; but it is one of the many safeguards written into the bill by the
Judiciary Committee to assure the complete constitutionality of the measure.'
Id., 14175. See also id., 14443.

15

'Mr. Long. I was under the impression, from hearing the Senator from New
York (Sen. Lehman) yesterday, that he said that under a previous statute it was
unlawful to belong to an organization that advocated the overthrow of the
United States Government by force * * *
'Mr. Ferguson. Is it not true that Judge Medina, in his charge to the jury in the
trial of the 11 Communists, told them that mere membership in the Communist
Party was not sufficient to warrant the jury in convicting them under the Smith
Act?
'Mr. Mundt. Precisely.

'Mr. Ferguson. So that it could not apply to that law.

'Mr. Mundt. It could not conceivably apply. Even if the impression which the
junior Senator from Louisiana had were correct, it would still be an incorrect
interpretation of the act.' Id., 14235.
16

H.R.Conf.Rep. No. 3112, 81st Cong., 2d Sess., p. 49.

17

96 Cong.Rec. 15289.

18

Id., 15198.

19

Ibid.

20

Id., 15192.

21

S.Rep. No. 2369, 81st Cong., 2d Sess., p. 4.