Lightfoot v. United States

PETITIONER:Claude Mark Lightfoot
RESPONDENT:United States
LOCATION:Illinois General Assembly

DOCKET NO.: 4
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 355 US 2 (1957)
ARGUED: Oct 11, 1956
DECIDED: Oct 14, 1957

ADVOCATES:
John J. Abt – for the petitioner
J. Lee Rankin – Solicitor General, Department of Justice, for the United States

Facts of the case

Question

Audio Transcription for Oral Argument – October 11, 1956 in Lightfoot v. United States

Earl Warren:

Number 32, Claude Mack Lightfoot versus the United States of America.:

John J. Abt:

Mr. Abt.

Thank you, Your Honor.

May it please the Court.

This case, like the one that you have just heard, involves a conviction under the membership clause of the Smith Act.

The indictments in the two cases are identical except for the names of the defendants and allegations as to venue.

The trial here, which was the first trial under the membership clause, preceded that by — in Scales by some three months.

The indictment, I may say, was returned in May of 1954.

Petitioner was sentenced to a $5000 fine and a five-year prison sentence, and the conviction was affirmed in the Seventh Circuit.

This case, like Scales, raises questions as to the constitutionality of the membership clause on its face and the effect of Section 4 (f) of the Internal Security Act as a bar to the indictment.

I shall have something to add to what has already been said on those questions a little later.

But I first want to discuss our contention that the record in this case required a judgement of acquittal.

Important questions concerning the evidence necessary to sustain a Smith Act conviction had been argued in the Yates or submitted in the Yates and Scales cases.

I believe, however, that this record presents in the sharpest and most extreme form the question as to whether a Communist defendant in a Smith Act case is to be entitled to the long accepted and constitutionally protected standards governing proof of guilt.

Before I come to the facts, I should like to make two preliminary observations.

First, in contradistinction to the Yates case, the testimony here, fortunately, occupies less than 500 pages of the record and indeed, the disputed questions of fact — as I think they appear from our brief and the respondent’s brief, relate to, perhaps, four matters involving no more than a dozen pages of the record.

Second, during the argument in Yates, Mr. Justice Harlan asked this question.

If the Communist Party had been the defendant, would there have been enough evidence to go to the jury on the question of its advocacy of prescribed doctrine?

The answer to that question, Mr. Justice Harlan, in this case is a clear unqualified and unequivocal no.

This for the reason among others, that the only witness for the prosecution on that branch of the case testified that the advocacy of the organization was peaceable.

I shall return to that point later.

At the trial, the petitioner acknowledged that he had been a member and officer of the Communist Party for many years.

He had held various offices in the Illinois organization and, at the time of the indictment, was also an alternate member of the National Committee of the national organization.

Thus, the issues of fact were confined to his knowledge and intent.

First, during a three-year statutory period did he know the Communist Party as a society of persons who, in the language of incitement, advocated the violent overthrow of the Government as soon as circumstances would permit.

And second, during that three-year period did he personally have the specific intent to bring about such overthrow as soon as circumstances would permit.

And may I say parenthetically here to dispose of that question at once the Medina incitement instruction was given in this case.

The prosecution called eight witnesses whose testimony was material and offered a number of exhibits.

The petitioner called no witnesses and offered but one exhibit.

All of the prosecution witnesses were former members of the Communist Party.

John J. Abt:

Five had been FBI informers throughout their membership and the sixth, the ubiquitous Lautner, who, I believe, has been a prosecution witness in every Smith Act case since Dennis, was a full-time Department of Justice employee at the time he testified.

The evidence on the crucial issue of the petitioner’s own acts and declarations spanned 19 years of his life and membership in the Communist Party.

It falls into four categories, his attendance and speeches at Communist Party meetings, private conversations, his teaching in Communist Party schools and finally, his published writings.

FBI informers testified the petitioner’s attendance at a total of 16 meetings between 1945 and 1951 at which he or other Communists spoke.

Only three of these incidentally occurred during a three-year statutory period.

I have included what I think is a painstaking summary of the testimony as to all 16 meetings in an — in an appendix to our brief the accuracy of which the Government does not challenge.

If this testimony is accepted in its entirety, it establishes no more than that the petitioner or other speakers called for the building of a Communist Party particularly among the Negro people and working people urge Communists to work more effectively in trade unions and veterans organizations, express confidence in the eventual establishment of socialism in this country, praise the Soviet Union and its leaders, oppose the Cold War policies of the Truman administration, denounced legislative committees investigating communism and advise Communists not to reveal their membership publicly, if to do so would jeopardize their positions in the community.

Two witnesses, Meyer and Skinner, who incidentally were the only two not then or formerly on the payroll of the FBI, testified to their presence at or participation in the conversations with the petitioner.

Ms. Skinner testified that in the years 1947-1948, she frequently saw petitioner at the Chicago party headquarters where he talked with the party officials there, but she wasn’t asked and didn’t testify about the content of any of these conversations.

The witness Meyer knew petitioner intimately and worked with him closely in the Communist Party during the eight years, from 1934 to 1942.

They had innumerable discussions concerning the theoretical and practical aspects of Communist Party work.

In 1940, the two men held an extended discussion of the courses on Marxism-Leninism, which petitioner was then teaching.

They went over the books by Marx, Engels, Lenin and Stalin, the so-called “classics” that petitioner used in these classes.

Meyer was able to identify the specific pages of these books which they had discussed some 14 or 15 years previously.

He testified that he and the petitioner reached agreement on what should be taught and how it should be taught.

But the prosecution never asked him what that agreement was.

Certainly, if the petitioner had understood the Communist Party or these books to advocate the violent overthrow of our Government, he would have said so in the course of these lengthy and searching conversations with Meyer.

But the prosecution sedulously avoided asking Meyer what was said and the witness gave no testimony whatsoever concerning the subject of these conversations or what was said in these conversations.

Two witnesses, Meyer and Ms. Skinner, testified that they had attended a number of petitioner’s classes of principles of Marxism-Leninism, but they weren’t asked and they didn’t testify as to what petitioner taught them.

A third witness, the informer Brzek, attended two of petitioner’s lectures at a school held in 1947, eight years before the trial.

It is simply impossible to paraphrase the witnesses’ incoherent and (Inaudible) of account of what petitioner is supposed to have said.

I quote the essence of our — of his testimony at page 10 of our brief and it appears in full at record 460, 462.

I invite the Court to take a look at it.

Brzek’s version of petitioner’s remark is studded with references to blood and bloodshed.

But according to the witness, petitioner, and I quote him, “went on to explain that it wouldn’t be a shooting, it would be more quiet methods of doing that blood,” end of it.

Now, just what the nature of this more quiet method of doing the blood end of it was was never elucidated in the testimony.

Brzek also testified that petitioner, in this same lecture, repeatedly emphasize, and I quote him, “That we will try to avoid bloodshed and we will approach it to avoid bloodshed,” and then concluded his lecture with this statement, “However, we will not be pushed off, if we have to shed blood, we will.”

Now, I submit, at the very most that can be spelled out of this confused and confusing police by story is that far from advocating violence, petitioner urged its avoidance and that most warned of a possible reluctant resort to force at some time in the future, if this became necessary as a measure of self-defense.

I should add that the witness, Ms. Skinner, who preceded Brzek to the stand, testified that she attended the same sessions of the 1947 school.

But the prosecution carefully refrained from asking her what petitioner had taught them.

John J. Abt:

Now, the only other evidence of petitioner’s acts and declarations consist of some of his published speeches and articles.

These show that he has been highly critical of many aspects of the foreign and domestic policies of the national administration, his expressed admiration of the Soviet Union and its leaders.

He believes in the ultimate establishment of socialism in this country.

And he is very deeply concerned by the discrimination and violence practiced against his people, the Negro people.

The Court will doubtless find many of his ideas distasteful and may consider some of his language intemperate.

But it will find that the articles contain no discussion whatsoever of the means for bringing about socialism in the United States.

And that far from advocating violence, they demonstrate petitioner’s abhorrence of its use in any form or for any purpose.

Petitioner’s writings state that he is in adherent of the principles of Marxism-Leninism.

And they contain the only evidence in the entire record of his understanding of the meaning and application of these principles.

Significantly, the petitioner wrote, and I quote him, “Marxism-Leninism gives us the power of orientation.

It enables us to perceive the direction in which things are heading.

It does not nor can it determine for us beforehand the form nor the exact time of a new social development.”

With that, I have now summarized all of the evidence concerning petitioner’s acts and declarations.

Respondent’s counter-statement of the facts in the main confirms the accuracy of my summary.

Respondent, however, resorts to three devices in an attempt to squeeze some evidence of guilt out of this arid record.

These are dealt with fully in my reply brief.

I only touched on them here.

First, the respondent Ms. Tates the Brzek bloodshed story to make it appear that the witness quoted the petitioner as saying, and I quote from respondent’s brief, “Bloodshed is a pre-condition of the successful revolution, is necessary to obtain the objectives of the party and is on the agenda.”

These words so out of character, if they had been spoken by the witness, are not his reference supplied by the respondent.

Second —

Earl Warren:

It is supplied by whom?

John J. Abt:

The respondent, Your Honor.

Second, the respondent excises two of the petitioner’s published articles to give them a sinister significance which the full text negatives.

Respondent’s tendentious excerpts and the context from which they were wrenched are set forth at pages 2 and 3 of our reply brief.

Third, respondent asserts that petitioner, and I quote from respondent’s brief, “repeatedly endorsed and enjoined upon others the party principles of military discipline and preparation for violence.”

But then document seized assertions by references to the following, first, to its embroidered version of the Brzek bloodshed tale, second, to its excise version of petitioner’s articles and finally, to such patently innocent matters, as petitioner’s statement that the Russian Revolution succeeded under the wise leadership of Lenin and Stalin.

Petitioner’s likening of the Communist Party to David and its enemies to Goliath and finally to the fact that the conclusion of a meeting, petitioner asked the audience to rise and join him in the singing of “The Internationale”.

Now, obviously, neither the distortions nor the trivialities can serve as a substitute for proof.

And as a matter of fact, the case was tried and decided and quite a different theory of guilt.

That theory takes us to its point of departure excerpts from the so-called classical literature of Communism, the political polemics of Marx, Engels, Lenin and Stalin written some 30 to 100 years ago.

John J. Abt:

From this, it derives the following inferences and hypothesis, first, the excerpts in the words of the Court of Appeals, and I quote, “advocated the violent overthrow of capitalist governments as speedly as circumstances would permit”.

Second, since such advocacy appears in the so-called classical literature, it is a permanent and immutable dogma of Marxism-Leninism applicable to all capitalist governments, including the United States, at all times and under all circumstances.

Third, since the Communist Party acknowledges its adherence to the principles of Marxism-Leninism, current advocacy amounting to incitement of the violent overthrow of our Government as soon as circumstances permit can be imputed to that organization.

Fourth, since the petitioner was an active member and officer of the Communist Party, thus familiar with this classical literature and thought in Communist Party schools, knowledge of the teaching and advocacy thus imputed to the Communist Party can be imputed likewise to petitioner.

And finally, from the same bare facts, there can also be imputed to petitioner the specific intent to bring about the violent overthrow of the Government as soon as circumstances permit.

The experienced trial judge, Judge Sullivan, adopted this theory of guilt only with the greatest reluctance, stating that what he referred to as the so-called Communist cases had modified the rules of evidence that he knew anything about and change the law as he had practiced it during his many years on the bench.

Now, there are two things wrong with the theory applied below.

First, the inferences on which it were — was based are refuted by the evidence.

And second, even were that not the case, the — the conviction of the petitioner on the basis of this kind of suspicious deductive logic provides a supreme example of what Mr. Justice Minton once called guessing a man into a federal penitentiary.

As to the first fallacy, the uncontradicted evidence rebuts the tenuous inference relied on below that the Communist Party advocated revolutionary violence.

Indeed, as I’ve indicated before, the evidence offered by the prosecution establishes the exact contrary.

The only witness on this branch of the prosecution’s case was the ineffable Lautner, who had never so much as exchanged a word with the petitioner or heard him speak.

Now, Lautner’s testimony differed here in two respects, from at which he gave them other Smith Act cases including the Scales and Mesarosh — Mesarosh case and Mr. Justice Harlan, the Flynn case with which of course you’re very familiar.First, the prosecution confined its examination solely to qualifying Lautner as an expert by having him recite his positions in the Communist Party.

And then eliciting his opinion over our objection as to the meaning of Marxism-Leninism and the objectives of the Communist Party, he testified solely in his capacity as a so-called expert opinion testimony.

Second, and more importantly, whether because of the novelty of the role in which he found himself cast are for some other reason the witness dropped his key lines, which had been so well reversed in other cases.

The result is like a performance of Hamlet without the soliloquies.

Lautner did not testify at either Marxism-Leninism or the Communist Party advocated the violent overthrow of the Government.

His answers on direct examination are set forth in full on our brief, pages 14 and 15.

True, he used the words “revolution” and “destruction”, but as the trial court properly instructed the jury, neither of these terms implies the use of force or violence.

Any possible ambiguity in the direct testimony was resolved on cross-examination.

When the witness stated unequivocally that it was the position of the Communist Party that of socialism could not be peacefully established in this country by elections and parliamentary methods, it would be only because the trust and monopolies would try to prevent the effectuation of the popular will by themselves resorting to violence.

The question and the answer on cross-examination are reproduced at pages 35 and 36 of my brief.

Thus, the prosecution’s own expert testified that the advocacy of the Communist Party was peaceable.

The respondent devotes an appendix to its brief to an attempted demonstration that the Communist Party advocated proscribed doctrine.

Apart from quotations from the classics and the embroidered version of the Brzek story, which I have just mentioned, there was only one reference to force or violence in this entire appendix prepared by the respondent himself.

This is contained in a statement attributed to Lautner that Communist strategy, and I quote, “is always directed to the forcible overthrow and destruction of the Government.”

That appears at respondent’s brief, page 56.

In fact, Lautner made no such statement.

Its attribution to him is a pure invention as a reading of respondent’s own reference to the record reveals, and the record reference is 296-299.

Moreover, the respondent’s appendix ignores the only two statements in the record by the Communist Party, its officers or members concerning the means for achieving socialism in this country.

John J. Abt:

These are the constitution of the organization and the authoritative history of the Communist Party of the United States written by William Z. Foster, its chairman, in 1952.

Both documents established that the Communist Party advocated a peaceful path to socialism in this country.

Not only is there nothing in the record to the contrary but as I have shown, the Government’s own expert corroborated this documentary evidence and whatever may have been the findings of parts in other cases on other records, I submit that on this record, in this case, there must be a finding that the advocacy of a Communist Party was peaceable and that therefore, the evidence affirmatively establishes that the petitioner was innocent.

But even had there been no such countervailing evidence, petitioner cannot be deprived of his liberty by imputing guilty knowledge and intent from a whole pyramid of inferences based upon a court’s interpretation of Marxist-Leninist written in bygone times and under different conditions.

The Schneiderman case, it’s at respondent’s brief that strictly ignores, flatly so held.

Furthermore, Herndon against Lowry demonstrates that petitioner cannot constitutionally be convicted on the basis of such inferences.

The evidence in that case, the Court will recall, not only established Herndon’s membership and extensive activity in the Communist Party, but his possession of a current document issued by the organization that the Court said advocated violent overthrow at some future time.

The Court, however, refused to impute this advocacy to the defendant but it invalidated the statute and reversed the conviction in the words of Mr. Justice Frankfurter in describing that case in Dennis, “for lack of proof that the defendant had urged or even approved”.

Those are the party’s aims which are unlawful.

Here, we submit that this case could have been submitted to the jury and the conviction affirmed only by ignoring the evidence exonerating the petitioner and disregarding the presumption of innocence, the principal at guilt is personal, the constitutional protection accorded expression and association and even the narrowest application of Section 4 (f) of the Internal Security Act that the holding of office or membership in a Communist organization shall not be a crime — per se shall not be a crime under any criminal statute.

I submitted, if the Court please, that the conviction should and must be reversed with instructions to enter a judgement of acquittal.

The next point that I shall urge concerns the denial of a motion by the petitioner in connection with the Brzek bloodshed story.

The what?

John J. Abt:

The Brzek bloodshed story, Your Honor.

Brzek testified that he had made a contemporaneous report to the FBI on this 1947 lecture, which was a subject of this testimony.

The petitioner move for the production of the report for in camera inspection by the trial judge so that the judge could determine whether it contradicted the testimony and was therefore material to the defense.

Prosecution didn’t deny the availability of the report or urge that its contents were confidential or privileged.

Nevertheless, the trial court denied the motion and the rulings affirmed below.

Now, I think it’s clear that Brzek’s repeated inflammatory references to bloodshed were highly prejudicial —

What reason did the Court give to that disposition?

John J. Abt:

Let me say this — I was going to refer to that later, Mr. Justice Harlan.

Well (Inaudible)

John J. Abt:

I’ll — I’ll take care of it now.

The judge, as a matter of fact, had granted a similar request for in camera inspection with reference to a — another witness, looked at the report, held that it didn’t contradict the testimony and therefore didn’t make it available to us.

When I renewed the motion with respect or made another motion with respect to this witness, the Court simply stated that it was a matter within the discretion of the trial court and that he was denying it.

But I can’t say beyond that what was in his mind.

I think I don’t have to press the question that Brzek’s report was highly prejudicial, prosecution leaned very heavily on it in summation, respondent leans on it here and indeed, the Court of Appeals leaned on it in its opinion.

Certainly, for the period that Brzek’s report in fact contradicted his testimony, petitioner was entitled to have it, the use of it in cross-examination and entered this into evidence.

Gordon against the United States so held.

Obviously, the contemporaneous written report of a witness furnishes the best if not the only available evidence as to whether its contents contradict his testimony.

John J. Abt:

Accordingly, the practice of in camera inspection of such a report, for the purpose of ascertaining whether it discredits the witness, has been approved and followed in the Second, Fourth, Fifth, Eighth and Ninth Circuits.

The cases are cited in our brief, page 63.

Indeed, this practice was followed in the Yates case and in the Scales case, which preceded me.

And as I say, as I’ve already said, the trial judge granted a similar motion with respect to another witness.

The respondent, in its brief, concedes that the trial judge had the power to grant our motion but urges that there was no abuse of discretion in its denial.

The only reason that it advances is that the motion was not made until immediately after the witness stepped down from the stand.

But obviously that fact did not and could not have prejudiced the prosecution in any way and it would not have foreclosed us from using a report if the report had been made available to us, either by recalling a witness or by putting it in our affirmative case.

Now, only recently, this Court, in a case with which I’m not unfamiliar, stated the standard to be applied where there’s a challenge to the testimony as tainted.

This tedious regard for the honor of the administration of justice, Mr. Justice Frankfurter wrote requires the Court to make certain that the doing of justice be so manifest that only irrational or perverse claims of its disregard can be asserted.

It can hardly be argued, I submit, that this standard has met for a court refuses even to examine a document in the possession of the prosecution which may completely discredit the testimony of a key witness upon which the case for conviction was state.

Moreover, the repeatedly demonstrated untrustworthiness of the testimony of informers, most recently and dramatically revealed in the decision of yesterday, the man’s judicial inspection of very relevant FBI reports as the minimum precaution to assure defendants a fair trial and to safeguard the administration of justice against the use of tainted testimony.

May I add, indeed, that that procedure had been followed in the Mesarosh case possibly the messy debacle might have been avoided.

Hugo L. Black:

How long was it after the — after he testified that he had made a report until he got off the stand you say that —

John J. Abt:

He was the last witness, Mr. Justice Black.

At the moment he got — he stepped down from the stand, I moved to the bench and made my motion.

Hugo L. Black:

Well, how long had it been since he gave the information that he had made the report?

John J. Abt:

I brought it out in the course of a very brief cross-examination.

During the same day?

Oh, yes, of course.

He was only on the stand altogether for a very short while.

I don’t think I cross-examined him for more than five or 10 minutes.

And immediately at the conclusion of that cross-examination has he stepped down from the stand I made my motion.

Hugo L. Black:

Will you say the argument is that —

John J. Abt:

The argument —

Hugo L. Black:

(Voice Overlap) made it earlier?

John J. Abt:

That’s what they say, Your Honor.

That’s the only argument they give as to why — why the discretion was properly exercised in.

Felix Frankfurter:

Will you be good enough to refer me to the record in when the Court gave any — made any comment on his ruling?

Where is that?

John J. Abt:

I have to look for it, Your Honor.

Felix Frankfurter:

I’ll take time if you can’t let it through.

John J. Abt:

No, I think I can find it.

It must be shortly after 462 of — where the —

Felix Frankfurter:

All right.

John J. Abt:

— the testimony appeared.

Felix Frankfurter:

(Inaudible)

John J. Abt:

Or you’ll — you’ll find it in my brief, Your Honor.

Felix Frankfurter:

Don’t — don’t bother.

John J. Abt:

I may have it here but I doubt it.

Felix Frankfurter:

This is —

John J. Abt:

What — the exact —

Felix Frankfurter:

(Inaudible)

John J. Abt:

— the — the exact words that the Court used were these.

Judge Sullivan said, “As I read the Mesarosh case,” and he was referring to the District Court decision in that case, “As I read the Mesarosh case, I think it’s a matter within my discretion and I deny the motion.”

That’s all he said.

Hugo L. Black:

It’s on page 472 of that statement.

John J. Abt:

Is that at 472, Your Honor?

Felix Frankfurter:

Is that all there is?

John J. Abt:

I don’t know.

That’s all there is.

Felix Frankfurter:

All the light we have on his — the workings of his mind?

John J. Abt:

That’s all the light we have on the workings of his mind, yes, sir.

Now, unless the Court has further questions on that matter, I want to come to my next point.

Felix Frankfurter:

And — and what — what, would you mind, he could have been — perhaps you can state or restate exactly what your proposition at law is that this is not a matter of discretion all that in this case the — the exercise is — of abuse?

John J. Abt:

Surely it’s a matter of discretion, Your Honor.

The testimony of the witness might be trivial, immaterial, unimportant.

Here, the —

Felix Frankfurter:

(Inaudible) but where it isn’t that there is no discretion?

John J. Abt:

Where it isn’t there is no discretion.

That’s a minimum — minimum precaution that the Court needs to take to prevent repetition of the kind of a performance we had here yesterday, Your Honor.

Felix Frankfurter:

And it isn’t at realm of discretion.

John J. Abt:

And it’s no longer in the realm of discretion.

Felix Frankfurter:

If — if — is it that the testimony is serious or (Inaudible) the questions this would — making a damaging statement, having previously testified we have a right to find out whether he’s consistent with his charge or whether he taper down or what?

John J. Abt:

I would say this.

Felix Frankfurter:

That if —

John J. Abt:

If — yes, if the witness gives some testimony, it’s —

Felix Frankfurter:

It’s damaging.

John J. Abt:

It’s damaging.

And some of them is immaterial —

Felix Frankfurter:

Yes.

John J. Abt:

— to the conviction and you’ve got a right to show he’s a liar, a liar either with respect —

Felix Frankfurter:

Is it because — because he testified before the grand jury?

Suppose — suppose it has come to your knowledge that he made a difference, that he made a statement that he presumably did, would the U.S. Attorney or District U.S. Attorney can you call for that?

John J. Abt:

I think we can call —

Felix Frankfurter:

And — and if you say you agreed to believe as — as a careful lawyer a minute was made with that conversation.

I — I just want to know what the process —

John J. Abt:

Yes.

I think we can do —

Felix Frankfurter:

(Inaudible)

John J. Abt:

Right.

I think we can do — go to this extent, at least, Your Honor.

We can call for it not for production to us but for production to the trial judge so that he can make a preliminary determination as to whether it contradicts the testimony.

And that’s what all of these cases have held.

I think that that’s the minimum precaution which the trial court should take in such a situation.

And it’s — it’s often been said, the prosecutor has no interest in procuring a — a conviction unless we’ve got the evidence.

And if he has, in his possession, anything that contradicts the evidence that he’s produced in court, the defense is entitled to it.

I think that that’s —

Felix Frankfurter:

Did the Government resist it or —

John J. Abt:

The Government resisted, gave no reason for resisting it, just said that — as I say, they didn’t claim that the report was confidential or privileged.

They didn’t deny its availability.

William O. Douglas:

I think the prosecutor said he didn’t have it.

John J. Abt:

Didn’t have it there in court, Your Honor.

William O. Douglas:

It was in another (Voice Overlap) —

John J. Abt:

It’s been made to the — to the Milwaukee office of the FBI, which is two hours away from Chicago.

That’s what all he said.

Is Brzek a government agent?

John J. Abt:

Yes, he joined the Party at the request of the FBI.

Felix Frankfurter:

Was the record — was the record left in an unsatisfactory condition on the point just brought out by Justice Douglas that the Government’s objection was inconvenient or inaccessibility?

And was there any — anything made of that?

John J. Abt:

Nothing made of that.

Felix Frankfurter:

(Voice Overlap) —

John J. Abt:

Nothing made of that.

As a matter of fact —

Felix Frankfurter:

So that in the course of trial, we can go on and then bring it in later?

John J. Abt:

Well, no, couldn’t have done — couldn’t have hold the trial to the Court.

I mean you couldn’t —

Felix Frankfurter:

Are they?

John J. Abt:

— couldn’t have gone on with the trial rather because it so happen that he was the last witness.

Felix Frankfurter:

(Inaudible) you said that.

John J. Abt:

But it was in the afternoon, it meant — what it meant in a germane overnight perhaps to get that report, that was all that was involved in the hoping.

Tom C. Clark:

That’s what the judge said, you haven’t laid a foundation.

John J. Abt:

No, no, Your Honor, he did not.

Tom C. Clark:

What’s he mean here on page 472?

John J. Abt:

Well, perhaps — perhaps, Your — perhaps you’re right, Mr. Justice Clark.

I may be wrong.

Tom C. Clark:

After he said in —

John J. Abt:

452.

Tom C. Clark:

— the Court, the counsel said they don’t have it here, is that correct?

Mr. (Inaudible) as I suppose he see it (Inaudible)

John J. Abt:

Yes.

Tom C. Clark:

— that is correct (Inaudible) one thing —

John J. Abt:

I’m sorry, Mr. Justice Clark.

What page are you reading from?

Tom C. Clark:

472.

Mr. Abt, there is — in neither of those cases, do you have any foundation laid it on.

John J. Abt:

No, but then — then he went on — the foundation of course what he was — what he was saying about with respect to that, Justice Clark, was that I had not brought out in or attempted to in cross-examination kept the witness to concede that his report contradicted his testimony.

But then immediately following that, he refers to the — what’s called here the Mesarosh case, which is the Mesarosh case, in which the Court approved the line of cases that I have cited in my brief saying (Inaudible) was discretionary with the Court as what would or wouldn’t inspect records.

Felix Frankfurter:

But little — one of few lines below, Mr. Parsons to the Court said they never had it but then they do not know they have it here.

Mr. Parsons, “No, he did not see it either and I, myself, never saw it.”

Who is the “he”?

John J. Abt:

I have no idea, Your Honor.

I think that’s — or must be a reported error.

Earlier I had pointed out — I don’t have the page here, that the mails were still operating between here and over Chicago and Milwaukee and — page 469, Mr. Parsons, “We don’t know whether they exist or not.

I said the witness said he had made written reports and there is no doubt about their existence.”

Mr. Parsons, “Otherwise we would rest — but they do another exhibit previously it said that the reports have been made to Milwaukee.

At any case, no — no point has ever been made by the Government as to the unavailability of the reports.

I’d now like to go on, if I may, to add four observations to what has already been said about Section 4 (f).

First, the legislative history, which I cited in pages 79 to 80 of my brief, established beyond peradventure, I think, that the reference to any other criminal statutes was not what Mr. Justice Frankfurter calls a declaratory statement but was added with a membership clause of the Smith Act and nothing else in mind.

Second, the legislative history also establishes that the Congress believed that the privilege against self-incrimination compelled it to choose between the registration provisions of the Internal Security Act and the membership clause of the Smith Act as a means for dealing with members of the Communist Party whose only overt act was the act of membership.

After much deliberation, it chose the former, that is the Internal Security Act, and so amended Section 4 (f) to immunize Communist Party members from prosecution under that clause.

Third, I submit that the fact that this was a result that Congress intended and indeed thought it had achieved is confirmed by the legislative history of the Humphrey Amendment to the Communist Control Act of 1954.

That amendment proposed to make membership in the Communist Party with knowledge of its alleged seditious purpose a crime.

The amendment and the author’s explanation of its provisions are — are quoted at page 81 of my brief, perfectly clear from the face of the amendment and from Senator Humphrey’s explanation that the crime which he proposed to create was identical with the crime charged in the indictment.

The Court will recall, I’m sure, that the Attorney General and the majority leadership in Congress vigorously opposed this amendment on the ground that it would make the registration provisions of the Internal Security Act unenforceable by repealing the immunity conferred by Section 4 (f).

I’ve quoted typical and authoritative statements made on the floor at both the Senate and the House to that effect in an appendix to my brief, page 99.

It was a result of these representations by the Attorney General and the congressional leadership, that the Humphrey Amendment was defeated.

Now, it’s perfectly apparent that the controversy over that amendment was based on the understanding that because of Section 4 (f) of the Internal Security Act, membership in the Communist Party with knowledge of its alleged unlawful purpose was not a crime under the existing law and on the belief, in addition, that to make it a crime would render the Internal Security Act unenforceable.

And that legislative history, we submit, confirms that confirmation were needed.

The proposition that Congress intended to make the membership clause of the Smith Act unavailable for the prosecution of Communists by Section 4 (f) and as I say, indeed believed that Section 4 (f) would achieve that objective.

Fourth and last, with respect to Section 4 (f), I just want to add a word to what General Taylor said about the savings clause.

John J. Abt:

In addition to the general principle which he cited in this case, in the case of this Act, the savings clause was a part of the bill as reported out by Committee.

The amendment to Section 4 (f), which we’re discussing, was added as a last minute measure on the floor of the House.

Obviously, Congress at the time it did this didn’t have in mind any possible inconsistency between that amendment and the savings clause, which simply reinforces the principle of statutory construction to which General Taylor referred.

You say the amendment was passed after the savings clause?

John J. Abt:

Passed that after savings clause, Your Honor.

The savings clause appears —

It was added after the savings clause.

John J. Abt:

Added after the savings clause.

When was it?

John J. Abt:

And added as a last minute measure as before — before the bill was enacted.

Felix Frankfurter:

So we can’t really —

John J. Abt:

I’m — I’m just —

Felix Frankfurter:

The clock or period of time in which specific provisions of a single act was passed and —

John J. Abt:

No.

Felix Frankfurter:

— you say that one is made (Inaudible)

John J. Abt:

No, you can’t, Your Honor.

I’m simply citing that fact to reinforce the general principle of statutory construction to which Mr. Taylor adverted to show that it was particularly pertinent — the application particularly pertinent to this case.

I now turn to the constitutionality of the membership clause as applied in this case.

Yesterday and again, today, if I understood the purport of the Solicitor General’s remarks in his colloquy with Mr. Justice Harlan, he stated that the constitutional application of the statute requires proof of sufficient acts by the accused to establish the conclusion that the accused had the specific intent to bring about the violent overthrow of the Government as soon as circumstances permit.

As I understand him, it’s his position that a mere expression of the belief or opinion is not alone enough, something more is required.

What’s necessary, again as I understand them, is something in the nature of an overt act, an act not in furtherance of some innocent activity of the organization but an act in furtherance of the proscribed works.

He said that an instruction —

Do you — do you include words in that?

John J. Abt:

Pardon?

Words of incitement that the —

John J. Abt:

I would certainly — if you were asking me, Your Honor, I would certainly include words of incitement.

Under the Dennis Case, I have to include words of incitement.

As in Scales, no instruction to that effect was given — requested by the Government or given by the court below.

The case was neither tried nor submitted to the jury on that theory.

Furthermore, the record here is devoid of evidence of the sort — that the — that the Solicitor General now says it’s required.

John J. Abt:

His own brief concedes that there is no evidence that petitioner engaged in anything but peaceable activity and constitutionally-protected expression during the three years preceding the indictment.

And indeed, his conduct prior to that time, as I have shown, was just as innocent.

Thus, it seems to me that we have a — have an implicit acknowledgement from the Solicitor General that by his own standard, the conviction of petitioner violated the First Amendment.

But it seems to me, furthermore, that there’s no warrant whatsoever for the gloss that the petitioner General — the Solicitor General puts on the statute.

And without that clause, I submit that the statute is unconstitutional on its face or even though you may garnish membership with such subjective factors as knowledge and intent, the fact remains that the only act that the statute punishes is the bare act of association.

And under our Constitution, if I understand it, association cannot be made a crime unless it is accompanied by acts or advocacy that amount to aiding or abetting the unlawful purpose of the organization.

That is the teaching of the De Jonge and Herndon and that Mr. Justice Brandeis’ historic concurrence in Whitney, a — a principle which was reiterated by the Court in the Douds case.

And whatever else Dennis may stand for, I submit that it did not modify or qualify this principle.

For all three majority decisions emphasized that it was the existence of an active conspiracy that created the danger.

And Mr. Justice Vinson stressed that it was the nature of the defendan’s activities and their power to bring about the evil that brought them outside the protection of the First Amendment.

Under the membership clause, however, an accused might be convicted without proof of any activities whatsoever and notwithstanding that he is powerless to bring about the evil.

That — those propositions, I submit, are decisive of the unconstitutionality of the membership clause.

I shan’t burden the Court with argument of the remaining questions discussed in my brief.

To conclude, I submit to the Court that the conviction here and its affirmance below would have been simply unthinkable before the decision, the decision in Dennis and the Circuit Court of Appeals decisions that followed in its wake.

As for myself, I believe that Dennis was wrongly decided.

And I share the hope so eloquently expressed by Mr. Justice Black that in calmer times when present pressures, passions and fear subside, this or some later court will restore the First Amendment liberties to the height or birthplace where they belong in a free society.

But whatever the ultimate fate of the Dennis decision may be, it furnishes no warrant.

Surely in the calmer times we are already — are already beginning to experience for the constitutionality of the membership clause.

And surely, nothing that was said in that case can provide a precedence — precedent for the affirmance of a conviction on this record devoid as it is of evidence of illicit advocacy, incitement to violence or seditious knowledge or intent.

Could I ask you one question before you sit down?

I understood your first proposition to be that even if you take the statute as constitutionally satisfying the Constitution simply by the — importing the element of specific intent and of course actual knowledge, that even under that standard, the evidence doesn’t justify the conviction of that.

John J. Abt:

Oh, surely not because I — as I tried to — to point out, there was no knowledge either of the intent —

(Inaudible) you’re leaving out the additional gloss of the Government perhaps to be putting on.

John J. Abt:

Of course.

Earl Warren:

Mr. Solicitor General.

J. Lee Rankin:

May it please the Court.

I’d like to clear up first the arguments about the record.

We do not agree with counsel that the Government misquoted the record in any place except that we do refer to the record, as counsel states in his reply brief on page 5.

In our brief on page 56, we cite as authority only the records pages 296 to 299.

I think in order to be accurate, although we don’t try to quote that point, as the Court will note, we tried to paraphrase or show our conclusions about the testimony.

J. Lee Rankin:

However, to be more accurate, if we should cite also the direct testimony of the witness, Mr. Lautner, which is back at pages 204 to 211 in that area in the record from which we draw the conclusions as to the thrust of the witness Lautner’s testimony.

And the Court will note it that on pages 296 and 299 that the witness was interrupted and it’s quite apparent from the remarks of counsel himself at the time that he appreciated the thrust of the testimony at an earlier time.

But the record, as cited, does not support it.

We think that otherwise, the Government’s brief is fully supported by the record and the Court would have to examine it in detail to determine for itself.

Hugo L. Black:

What page of your brief is that?

J. Lee Rankin:

On page 56.

Hugo L. Black:

Thank you.

Harold Burton:

Where — where is the addition of 204 and 296 go?

J. Lee Rankin:

The — between 204 and 211, there are detailed record of the testimony of Mr. Lautner in which he elaborates the theory and principles of Marxism and Leninism and what he construes and understands as an expert —

Harold Burton:

Do you think you want to add that to 296 to 299?

J. Lee Rankin:

Yes, Mr. Justice.

I’d also like, before starting into my general argument, call the Court’s attention to the fact that in this case, as well as in Scales, the fact that membership is admitted and so as you will note in examining these instructions, and I would like to ask you to examine them carefully in both cases because the Court was very careful in both cases.

In fact, in this case, the Court was very stringent on the Government in the instructions that were given and gave a very great area of protection to the defendant in the instructions.

But the Court in this case as well as Scales did not submit the question of membership because it was admitted and so told the jury.

Felix Frankfurter:

Mr. Abt didn’t, unless I didn’t hear him, make much of any — the alleged error in the charge and in his brief that’s on (Inaudible)

John J. Abt:

That’s right.

I don’t (Inaudible) abandoned my (Inaudible)

Felix Frankfurter:

Well, I didn’t’ mean to suggest that.

I — I didn’t mean to suggest that.

No lawyer abandons anything that’s (Inaudible)

John J. Abt:

I still think that’s a good point.

J. Lee Rankin:

I’d like to call briefly to the attention of the Court the record of this petitioner in the Communist Party that extends for a period of some 20 years of activity.

Membership is conceded at the time of the trial.

He was also an alternate member of the National Committee of the Communist Party at the time of the trial as the governing body of the Communist Party of the United States today.

That’s conceded too.

He was a member as early as 1930.

In 1934, he was the south side organizer in the Chicago area.September of 1934, he became a full-time party functionary.

Then he became a member and organizer of the south side section of the Illinois-Indiana District.

1936, he went to Moscow as a delegate to the Sixth World Congress of the Communist International.

1936 to 1940, he became an organizer of the south side section, member of the District Committee of the Communist Party of the Illinois-Indiana District.

J. Lee Rankin:

And he’d collaborated with Mr. Haywood in the preparation of the Communist Party pamphlet.

He became an instructor in the Chicago Worker School on behalf of the Party, which the curriculum was largely based on the Marxist-Leninist doctrines.

Then he collaborated with Mr. Meyer, who was — went to school in this country and was educated at Oxford, came back to this country and was one of the leading teachers and planners of the teachers in — teaching and training of the Communist Party in the United States as to the doctrines, objects and aims of the party.

And this Mr. Meyer worked with the petitioner in this case to determine that his teachings of the Communist objectives and aims in the various schools in which he taught adequately presented the revolutionary doctrine of the proletarian before the various students in the school.

And Mr. Meyer testified in the case that he was an excellent teacher.

Our brief on pages 18 through 20 elaborate the activity of this petitioner during the critical period.

But it’s the theory of the Government that the jury and the Court had the right to look back at the record of this man and the knowledge that he had in teaching these doctrines and revolutionary purposes throughout this period including the evidence as to the force and violence prior to this critical period with no showing of any kind that he ever changed his mind any other purpose, and then the fact that he is today an alternate member of the governing body of this Party with all of that mean and attended various functions, one of which he urged the infiltration of key positions of industry by those members of the Party and attendants so that they could further the aims of the party and honor Gil Green, one of the defendants in the Dennis case.

Could I ask you one question more about this active membership proposition?

J. Lee Rankin:

Yes, Your Honor.

In your view, does the requirement of active membership, is that sufficed by innocent activity?

Is that enough?

Or does it have to be activity of the character that implements — is directed to force and violence?

J. Lee Rankin:

I think that the — the membership can be involved innocent activity under the Constitution, but I think you have to find intent to accomplish those objectives and aims under the Government’s theory by his acts or his position in combination —

It’s like the overt act concept — that the overt act in a conspiracy maybe, of itself, innocent but if it’s in furtherance of the conspiracy, why, then it’s enough, it’s an overt act.

J. Lee Rankin:

Yes, that’s right.

It’s — that same concept that you reported to this activity and membership.

J. Lee Rankin:

Yes, Mr. Justice.

Harold Burton:

But — but that — it doesn’t withdraw from the Government the — the necessity approving to the satisfaction of the jury if the Communist Party itself, the Party not — not the defendant, the Party was intent on overthrowing the Government by force and violence.

J. Lee Rankin:

That’s correct, Mr. Justice.

We undertook that burden and we established very clearly by the evidence in this case that that was the doctrine of the Party, that’s what they were busy teaching and they were trying to establish their people in key positions in industry in this country so as to accomplish the revolution by force and violence as soon as they could.

Harold Burton:

And the intent which the individual defendant or individual member must have the intent to carry out that purpose.

J. Lee Rankin:

That’s right.

Now, there is this element that the Government recognizes in the case in which it was developed on cross-examination of Mr. Lautner and also by the presentation of the material of Mr. Foster at the Party took a position that the force and violence that they were going to use was when they accomplished their peaceful revolution.

And the trust in monopolies in the United States used force and violence to try to put them out, that they would then use force and violence to maintain their position.

And it’s very clearly shown that Mr. Foster’s presentation of that theory was developed after the decision of this Court in the Dennis case.

And the jury had before it, the question as to whether or not the showing as to what they taught day after day, month after month and year after year in their classes about Marxism and Leninism and how this revolution should be done by force and violence at the earliest opportunity or whether or not the theory developed by Mr. Foster after the Dennis case and what Mr. Lautner admitted was one of the theories that the Party talked about peaceful revolution in this manner was the correct doctrine and aim according to the evidence in this case and that was submitted to them for them to conclude.

And I think it was properly for the jury to determine that question.

Now, with regard to the FBI reports, it’s the Government’s position that the request in this case was to lay but that is one — only one factor the witness had left the stand.

The second factor is that there was no foundation laid whatsoever as to any contradiction of a witness’ testimony by the FBI reports.

As we read the Gordon case, this Court said that if there’s a foundation laid and it showed that there’s a contradiction, then there is a question of an abuse of discretion.

J. Lee Rankin:

Now, there wasn’t even an inquiry.

In the first place, the witness didn’t use these reports to refresh his memory at all.

He testified from his recollection and as the Court knows, there’s a different rule of discretion in that kind of a situation than in the case where the witness uses any reports or records to refresh his memory.

But beyond that, here was this witness on the stand, in the courtroom, the counsel for the petitioner only had to say was, “Did you ever give a report to the FBI and was that report — did you ever say one word that was inconsistent or didn’t corroborate everything you say?

Or was there any fraction of it that was not consistent?”

Now, isn’t that a rule of law that this Court can sustain?

Here’s the trial court, that if — the record comes here from the trial court and isn’t it fair that the trial court have a right to determine and use his discretion in these matters that he at least be advised of where there is an inconsistency or a possibility that can be considered by him when you say he abuses his discretion before you come and overturn his — his exercise of discretion and conducting the work of this Court?

Now, there’s a reason why they don’t ask the question.

It hurts if they asked the question and the reports corroborate, the witness so testifies, then they’ve got the problem of what they asked for the reports.

And the reports, if they corroborate too, it hurts worst than to have a witness say it.

Felix Frankfurter:

I should think that’s why the U.S. Attorney would say we are delighted with this report.

J. Lee Rankin:

Well, I think that is another problem but it seems to me that as a matter of rule of law that the Court has to deal with the question as to whether or not there should be some foundation laid if you’re going to say that a trial court in trying to conduct an orderly process before the Court can exercise its discretion without knowledge, without any showing that there’s anything that he should be looking into.

Hugo L. Black:

I suppose he had asked that question.

The witness had said, “No, I made no inconsistent statement.”

Would that be a sufficient foundation?

J. Lee Rankin:

I think that would be sufficient for this Court to want to examine him and for the Court — as this Court did in one case, in this very case in one report, did examine himself, satisfied there was no inconsistencies in that instance and then sealed it for this Court to look at if it cared to.

I’m sure the way this Court conducted himself that if they’ve made any such inquiry, they would have gotten the reports to the judge, he would have determined the situation in the same way he did in the other.

Hugo L. Black:

Well, I was just asking to see if you thought that that was a sufficient foundation and I understand that you do.

J. Lee Rankin:

Yes, I — I think that that is the best that they can do —

Hugo L. Black:

And that the witness couldn’t shut them off by saying, “No, it’s consistent.”

J. Lee Rankin:

No, I think that he would be entitled to a further inquiry at least to have the Court to determine whether or not the witness had plainly falsified about that answer.

But that’s enough of a foundation as a pretty formal ritualistic proposition, isn’t it?

J. Lee Rankin:

Well —

Why go through that formula?

The witness obviously has made a — if your statement that a foundation is enough, why do you have to go through that formula?

Why — once you have the report acknowledged there had been a report, why do you have to ask that question that Justice Black asked you about?

Why not just — why isn’t the judge obligated to look at it?

J. Lee Rankin:

Well, the witness admits that there is something — some —

Well, obviously, he won’t and if he’s —

J. Lee Rankin:

No.

— lied about it, he certainly is going to stick with his lies.

J. Lee Rankin:

Well, he might have not reported at all.

I mean, often times people, in giving statements to counsel who recollects something that they do not always report.

And I think that’s a reasonable inquiry as to whether or not he fully described everything to the FBI.

But the mere fact that he didn’t might not prove that he was untruthful at all as we all know from experience.

However, it would — it might have some bearing upon the situation.

Harold Burton:

But how — how did the petitioner raise this question?

Did he file a motion or make a motion?

J. Lee Rankin:

He made a motion orally, and I think he could, but I think he first should examine to determine whether there’s any discrepancy in the testimony.

Harold Burton:

Was that motion — what’s — what’s the substance of the motion?

J. Lee Rankin:

To — to examine the FBI reports.

Harold Burton:

How did you know there was one?

J. Lee Rankin:

That was established by his inquiry to the witness.

Harold Burton:

The witness said there was.

J. Lee Rankin:

Yes.

I’m not going back into the question of Section 4 (f) unless there’s some questions the Court may wish to direct me in regard to it except —

(Inaudible)

J. Lee Rankin:

— except that counsel has referred to the Act of 1954 as though that history might add something.

Of course, that’s four years later.

And I believe the Court can examine almost anything about legislative history as to what the Congress has done under the rules but there certainly is not as very much of a contribution from what essence four years later after the statute was passed.

Regardless of that, in the legislative history for the Act of 1954, we have some pretty direct expressions in regard to this very matter and Senator Humphrey’s suggested amendment was not accepted by the Congress.

And then Senator Estes Kefauver of Tennessee, whose questions had been the basis for most of the debate as to the effect of the new bill on the operation of the Smith Act, and who had been particularly strong in defeating the Humphrey version, stated near the end of the debate.

And this is in — on page 14395 of the record.

It isn’t referred to in our brief.

Hugo L. Black:

4 what — what?

J. Lee Rankin:

Congressional Record.

Hugo L. Black:

Page 493?

J. Lee Rankin:

14394 and 395.

(Inaudible)

J. Lee Rankin:

Of the Congressional Record.

J. Lee Rankin:

In fact, I can give you the exact — 100 —

Felix Frankfurter:

(Voice Overlap) —

J. Lee Rankin:

— 100.

14394 and 395.

And this reference is on page 14395.

I have now been assured that this, and I’m interpolating now, that was after the Humphrey Amendment was lost.

This, referring to the bill, was (Inaudible) will not adversely affect prosecution under the Smith Act or emasculate the Internal Security Act, so my principal objections have been met.

We think the evidence is clear, convincing of the activities of the petitioner over a long period of years in the furtherances — furtherance of the purposes and objectives of the Communist Party in this case.

That there were substantial acts including his membership on this National Committee and his attending meetings described by counsel for the petitioner all set forth in the pages of our brief that I’ve just referred to earlier, showing his participation in these activities during the critical period.

I think that the judgment should be affirmed by this Court under the evidence.

I don’t believe I answered your question, Mr. Justice.

Felix Frankfurter:

(Inaudible)

John J. Abt:

I shall detain the Court only for a moment.

The Solicitor General acknowledged in his argument his reference — the record reference in his brief to document the proposition that Lautner had testified that the Communist Party advocates force and violence was incorrect.

He cited — referred to Your Honors to other portions of Lautner’s testimony.

It did not tell, Your Honors, and he could not, that Lautner, at any point in the other testimony to which he referred you, said that the Communist Party advocated force and violence.

Those other portions of the testimony or the relevant ones are referred to in my brief or quoted in full of my brief.

I think I referred you to the page in the brief previously, page 14 and 15.

The Solicitor General also said that he believes that Lautner wanted to say or had it on the tip of his tongue to say that the organization advocated force and violence but never got around to it.

Now, it seems to me from those acknowledgements, I have to add a new layer to the pyramid of inferences, which I described initially.

There’s a new inference and imputation or further one that the Court has to indulge in — in order to find any evidence of guilty knowledge.

Solicitor General now imputes to his own witness his interpretation of the writings of Marx, Engels, Lenin and Stalin and his understanding of what the Communist Party advocated and then imputes that to the Communist Party and then to the petitioner.

Now, I submit, if the Court please, that you just cannot deprive a man of his liberty, send him to jail for five years on the basis of that kind of speculation.

And again, referring to Mr. Justice Minton, he said in the Pereira case that it might be a good guess but it was bad proof.

Here, it isn’t even a good guess with some bad guess.

In this particular case, if I understand the Government’s brief correctly, the — it’s crucial as to whether the evidence as to the purposes of the Party were violent or not.

John J. Abt:

Of course, it is, Your Honor.

It’s crucial because they say in their brief though the evidence showed no expressed declarations in this period stating his advocacy of the force and violence in so many words, it was shown that he had never departed from or cease laboring to this objective.

John J. Abt:

Well, it has to be crucial, Your Honor.

So that —

John J. Abt:

How can a man — how can a man be cruel to know what doesn’t exist and knowledge of the prescribed advocacy is essential that there was no prescribed advocacy (Inaudible)

Well, I’m thinking of this in —

Felix Frankfurter:

What?

— contrast to Scales where there was direct evidence of declaration.

John J. Abt:

Indeed.

Indeed, there — it is contrasted.

I — I’d like to add just one more thing.

If Your Honors agree with me on my analysis of the evidence, I would urge you not to send this case back for a new trial but to reverse with directions to enter a judgment of acquittal.

And I say that for several reasons.

First, this isn’t the type of case to which Mr. Justice Frankfurter referred the other day where the Government tried its case on an erroneous theory of the law.

The Government knew what it had to prove here.

What it had to prove is very simple, if there’s any doubt about whether it had to prove the Schneiderman case told it what it had to prove.

More than that, the failure of proof here is not on some technical matter, neglect to cross an I or cross a T or dot an I.

There’s a complete and absolute failure to prove any of the elements of the offense.

Under those circumstances, I submit that the Government is not entitled to another bite of the cherry.

More than that, we’re concerned here not with an ordinary crime but with a crime that involves conduct within the protection of the First Amendment.

And I submit that’s nothing.

Put more restrain in the exercise of the First Amendment right, then not only a reversal of the case when the crime hasn’t been proved but putting a defendant upon trial a second time.

More than that, and I want to be very realistic, I don’t think that the Government here is entitled to another trial where it would put its man, Lautner, on the stand who would recall the soliloquy’s that he left out the last time and where it would get them easy to pinch it for a prissy.

I’ve looked with this case a long time, if the Court please, feel deeply about it and perhaps you’ll forgive me if I feel strongly about it.

But if the Court agrees with my testament of the evidence, I believe that it would be unfair, unjust and indeed, a violation of the common decency not to — to reverse and remand for a new trial and not to enter a judgment of acquittal.

Thank you.