Noto v. United States – Oral Argument – October 10, 1960

Media for Noto v. United States

Audio Transcription for Oral Argument – October 11, 1960 in Noto v. United States

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Earl Warren:

Number 9, John Francis Noto, Petitioner, versus United States.

Mr. Abt.

John J. Abt:

Thank you Mr. Chief Justice.

May it please the Court.

This case, like Scales, involves a conviction under the membership clause of the Smith Act.

The two indictments are identical in form and were returned within about 10 days of each other in 1954.

Noto was tried in the Western District of New York in 1956, about a year after the first trial in Scales and his conviction was affirmed in the Second Circuit in 1958 shortly after the affirmance of Scales’ conviction by the Fourth Circuit.

The two cases raised the same questions with respect to the constitutionality of the membership clause and the effect of Section 4 (f) of the Subversive Activities Control Act.

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

However, I do not think that it will be necessary for the Court to reach these questions in this case because under the standards of Yates versus United States and Nowak versus United States, the record in this case unequivocally demands the — a judgment of acquittal for the petitioner.

At the trial, the petitioner did not dispute that he was a member of the Communist Party and that he had held leading positions in the Party in its western New York organization.

The indictment, like the Scales indictment, contained no allegation and unlike Scales, the Court here gave no instruction with respect to what the Government now calls the activity factor.

Since the Government didn’t discover the existence of that factor as an ingredient of the offence until several years after Noto’s conviction.

The issues therefore at the trial were whether petitioner have the knowledge and the intent charged in the indictment.

The indictment charges that Noto had knowledge that the Communist Party was engaged in advocating forcible overthrow.

This Court held in Yates at the advocacy proscribed by the Smith Act, his advocacy of action as distinguished from advocacy of belief.

Obviously, petitioner couldn’t know that the Party was engaged in such advocacy, that is to say advocacy of action, if in fact it was not.

Accordingly, the prosecution was required to prove that the Party incited action for forcible overthrow and the trial court so instructed the jury.

This, of course, is a proposition with respect to the Communist Party that this Court held that the Government had been unable to prove in the Yates case, stating that the record on this issue was strikingly deficient.

Similarly, the Second Circuit held that the same proposition had not been proved in two Smith Act conspiracy cases that followed the Yates decision.

In the present case, however, the court below never considered whether the evidence in this case supply to deficiency which had been found in the records in these three earlier cases.

Instead, it held that the incitement to action standard is inapplicable to prosecutions under the membership clause.

This appears both from the Court’s explicit statement to that effect and from its failure to mention or apply the standards in delineating the issues and discussing the sufficiency of the evidence.

And I’ll call the Court’s attention to the record at page 449 for the explicit statement by the Court and 439 to 442 for delineation of the issues and discussion of the sufficiency of the evidence.

The Court seems to have thought that Yates is inapplicable because the accused in a membership case has not charged himself with advocating anything and because for some reason that the Court never stated, the incitement standard does not apply to the advocacy of the organization.

By reading incitement out of the membership clause, the Court sustained the conviction on a record which has its own statement of the evidence at the point in which decision to which I’ve already referred the Court shows, differs in no — nor in significant respect whatsoever from the record which Yates stated was strikingly deficient.

John M. Harlan II:

Doesn’t the — doesn’t the — or did, let me ask you this question.Did the trial court charge incitement?

John J. Abt:

Yes, sir.

I’ve already indicated that trial court gave an instruction on incitement —

John M. Harlan II:

So the case was — in this respect, the case was submitted to the jury on standard to satisfy Yates.

John J. Abt:

That’s correct, Your Honor but never reviewed by the Court of Appeals on the instant case.

Contrary to the court below, the Solicitor General here —

Potter Stewart:

Now, just before you go on Mr. Abt —

John J. Abt:

Yes.

Potter Stewart:

— I — I had read the language of the Court of Appeals as meaning that there’s no necessity to prove the active advocacy by this individual defendant but not has meaning that there was no necessity to prove the active advocacy by the organization in which he was a member.

John J. Abt:

Well, that — that’s true, Your Honor, but the — the issue is not as to advocacy but as to the character of the advocacy and I think it’s perfectly apparent —

Potter Stewart:

No, in the — the Yates character.

John J. Abt:

That’s right.

Potter Stewart:

I mean the character required by Yates.

John J. Abt:

As I — as I read that, that’s — that’s what the Government says from its reading of the opinion, Justice Stewart.

As I read the opinion, the Court never mentions the word incitement or — or advocacy of action, anywhere in delineating the issues and discussing the evidence.

And it specifically says that Yates, in its own decisions in Silverman and Jackson are inapplicable.

Now, it seems to me the Court could — never have viewed the case the way it did if it had thought that the incitement standard was applicable.

Well, I’m going to argue in any case here is, irrespective of the view taken by the court below that incitement obviously was approved.

Felix Frankfurter:

As I understand you to answer Justice Harlan that the trial court instructions did satisfy Yates’ advocacy?

John J. Abt:

Yes, Your Honor.

Trial court instructed on incitement.

John M. Harlan II:

In other words, what you’re arguing as I get it is that the Court of Appeals, because of what you claimed that said respecting the incitement —

John J. Abt:

Correct.

John M. Harlan II:

— has not reviewed the evidence under Yates’ standards.

John J. Abt:

That’s right.

John M. Harlan II:

That’s your point.

John J. Abt:

That’s my point of it.

But the review below is never a proper review because the (Inaudible) standard applies.

Felix Frankfurter:

Is there any indication that the Court of Appeals thought it was not necessary to meet the Yates’ standard?

John J. Abt:

I — I think it’s fixed out all over the opinion, Your Honor.

First —

Felix Frankfurter:

Well, I don’t know — I don’t mean about what’s fixed out.

It — I’ll come to that sentence.

Is there any —

John J. Abt:

Court’s —

Felix Frankfurter:

— explicit reference?

John J. Abt:

At page — at page, Your Honor, at page 449 of the record.

The Court says that the — that the incitement standard of Yates as well as of Jackson and the Silverman is inapplicable.

Felix Frankfurter:

449?

John J. Abt:

44 — 449, yes, sir.

John M. Harlan II:

Could I ask you a question?

Felix Frankfurter:

And I understood that to mean that — that — what, I think what Justice Stewart have already put to you, namely that — that Yates dealt with the advocacy of the — the requirement of and proof of advocacy by the Party and that’s — that’s what (Inaudible) said with there, and here, you’re dealing with membership which merely require it is not a job, assuming that’s sufficient you’re probably making.

John J. Abt:

I — I don’t think that’s what the Court meant, You Honor.

John M. Harlan II:

Could I ask you this question?

John J. Abt:

Yes.

John M. Harlan II:

What did the Government —

Felix Frankfurter:

And may — may ask you?

If you forgive me.

The various sentence, after your sentence, the crime to which appellant was indicted brought to trial and convicted is what determined the sufficiency of the evidence and not on another similar even related crime.

John J. Abt:

That’s correct.

Felix Frankfurter:

Now, the related crime is advocacy by the Party.

John J. Abt:

Yes, Justice Harlan.

John M. Harlan II:

The question I was going to ask you, what did the Government argue in the Court of Appeals?Do they say that in reviewing the element of the crime that goes to the advocacy of the Party that Yates didn’t apply?

John J. Abt:

No.

The Government said they’ve satisfied Yates, Your Honor.

That makes the —

John M. Harlan II:

They argued it on the Yates premise.

John J. Abt:

Right.

That makes — makes it all the more astonishing if the Court decided if they have reference.

John M. Harlan II:

Well, it has a bearing — it has a bearing on what the Court arguing in the Court Appeals opinion.

John J. Abt:

Yes, Your Honor.

But I don’t think — I — I can only express mine as my view.

I — and — and I think that after you read the Court’s statement of the issues and the Court’s analysis of the evidence, all of which is done without mentioning the — the incitement standard, that you’ll conclude as I conclude it at the Court and — and couple that with the fact that said that Yates was inapplicable.

You’ll conclude as I conclude it that the Court did not believe that the incitement standard had any place in the States at all.

John M. Harlan II:

That would be in the face of an argument by the Government that was premised on the Yates being applicable.

John J. Abt:

That’s right, Your Honor.

Felix Frankfurter:

Well, then you have to argue one more thing as far as I’m concerned.

Assume you’re right, assume you’re right, trial court properly charged the jury, the evidence sustained the charge.

The Court of Appeals affirmed the conviction that indicate that a law standard of proof of means, that’s your position.

John J. Abt:

My position Your Honor, that’s not my — that’s not my whole position.

Felix Frankfurter:

No, no, no, I’m saying, I’m — one — one point of your thought.

John J. Abt:

Right.

Felix Frankfurter:

Now, you have for me to deal with this (Inaudible)

Assume you’re right.

You’re appealing from the judgment of the Court of Appeals.

John J. Abt:

Correct.

Felix Frankfurter:

If the record sustain the correctness in what the trial court did and the evidence sustained that would —

John J. Abt:

Then I — then I have no point, Your Honor.

Felix Frankfurter:

May I finish?

John J. Abt:

I’m — I’m sorry, sir.

I — I apologize.

Felix Frankfurter:

If the evidence — if the charge was right and the evidence sustained the charge, however wrong the Court of Appeals maybe if this Court thinks the charge of the District Court was right and the evidence sustained with or within period at the Court of Appeals.

John J. Abt:

Absolutely Mr. —

Felix Frankfurter:

Very well.

Hugo L. Black:

Is all the evidence in this record?

John J. Abt:

Pardon?

Hugo L. Black:

Is all the evidence in this record?

John J. Abt:

All the evidence is in the record, yes, sir.

Hugo L. Black:

In one single volume?

John J. Abt:

In one single volume.

And I now — I now proceed to argue that — from the evidence, if the Court of Appeals had applied the incitement standard as — I’m sure that this Court will.

It could not have sustained the conviction because there is no evidence in the citing of this record.

John M. Harlan II:

Am I not correct in thinking that there’s a 1200 page, printed — typewritten transcript of which this is the — of either a fair –which you say, a fair reflection of it.

John J. Abt:

This has all of the significant of it.

John J. Abt:

That’s right —

John M. Harlan II:

Yes.

John J. Abt:

— Your Honor.

John M. Harlan II:

There is a record.

John J. Abt:

Well of course, there’s a record.

I — I did not — didn’t understand Mr. Justice Black to ask me otherwise.

And the record has some more material in it.

Well, if the Government and ourselves are satisfied and all of the significant evidence in the case has been printed in the record.

Felix Frankfurter:

And it was settled between the Government and yourself.

John J. Abt:

Oh, yes of course.

Hugo L. Black:

What I was trying to find out was how much you then to read (Inaudible) the evidence.

John J. Abt:

I’m sure the Government will agree — I — I understood that from your question at this point.

I’m sure the Government will agree with me that you don’t have to go outside of the printed record.

Indeed, the printed record has been more than generous in reproducing this file we have.

Hugo L. Black:

How many exhibits?

Any exhibits?

John J. Abt:

Yes but —

Hugo L. Black:

Are they in here?

John J. Abt:

All the exhibits of any significance were read to the jury and public has read to them, for the jury has been (Inaudible).

Let me say, as far as the exhibits are concerned, Your Honors, unfortunately are more than familiar with all the exhibits because they consist of same books that were happens in the Yates.

My principle brief made a point-by-point comparison of the evidence concerning the advocacy of the Communist Party in this case and in Yates.

And this can now very readily be done by the Court from the appendices to the Government’s brief in this case and in the Yates case in which the evidence concerning Party advocacy is summarized.

In both cases, the principle evidence on this issue was introduced through the prosecution’s ubiquitous witness Lautner, who has given substantially the same testimony in every Smith Act case since Dennis.

The evidence consisted of the following.

First, the facts concerning the reconstitution of the Communist Party in 1945 and of three-dedication to the principles of Marxism and Leninism.

Second, the so-called practical writings of Marx, Engels, Lenin, and Stalin, declarations of a Communist International published in the 1920s and books and articles of American Communist.

Third, Lopez testimony that he had read this books and articles and that some of them had been studied in Party schools after 1945.

Fourth, evidence concerning the organizational principle of democratic centralism, which requires strict adherence to Party decisions.

Fifth, evidence again primarily in the testimony of Lautner concerning the establishment of a so-called underground Party organization equipping it with mimeograph machines and printing presses and arranging hideouts for possible use by Party leaders.

And sixth, and finally, evidence that the parties press the need of recruiting members and influencing workers in the basic industries of the nation.

John J. Abt:

My principle brief challenged the Government to find out any significant differences between the evidence in this case and in Yates from the subject of Party advocacy.

The Solicitor General relegates his reply to a footnote.

He says that to compare the evidence in the two cases, and I quote, “is misleading and unrewarding.”

On three — page 39, note 12.

I can readily understand that he finds the comparison unrewarding but he doesn’t tell us why it should be misleading.

He acknowledges that the pattern of the evidence in the two cases is similar but he asserts from in the same breadth that the factual pattern in this case is unique.

Certainly, there was nothing unique in Lautner’s twice-told tale nor was there was anything unique in the testimony of five additional witnesses who did not appear in the Yates case.

The Government says that the significant aspect of the testimony of these five witnesses related to industrial concentration and the underground.

This evidence is summarized at pages 37 to 38 of the Government’s brief on which it will readily appear that the witnesses added nothing to what Lautner have provided too on these subjects.

The Government seems to acknowledge that the evidence concerning Party instruction and Marxism and Leninism, taken by itself, shows no more than the advocacy of abstract doctrine.

It argues however, that this instruction is transmuted into incitement to action by the Party’s program of industrial concentration and the establishment of an underground organization.

But to say this is not the distinguish Yates but merely to resurrect the arguments that Yates rejected.

Indeed, while the Government argues here that it has met the incitement standard, its action in other Smith Act cases relies its words.

Subsequent to this Court’s decision in Yates, 12 of the 13 pending Smith Act conspiracy prosecutions were terminated in favor of the defendants.

Four of these were disposed off by directions for judgments of acquittal in the Second and Tenth Circuits.

In the remaining eight cases, the indictments were dismissed on motion of the Government with the explanation that the Yates standard could not be met.

This would seem to be an acknowledgement that the Government cannot cure the deficiency in the Yates record that the court — that this Court pointed out.

For — if evidence were available to prove what was not proved there, that is that the Communist Party incites violent overthrow and therefore, constitutes the conspiratorial group, it’s just inconceivable that the Government would have abandoned the effort to convict at least some of the Party leaders who were named in these indictments as participants in that conspiracy.

Thus, while the Government here formally contends that Yates is distinguishable.

What it really is asking is that the Court overruled the Yates decision.

Yet, it advances and can advance, no reason for this Court to do so.

Indeed, this would be a most inappropriate case even to urge the Court to overrule Yates because the fact is that here, the evidence would be insufficient, even a proof of advocacy of abstract doctrine by the Communist Party were sufficient to satisfy the statute.

This is so, because in this case, the Government introduced no evidence that the Party advocated forcible overthrow even in the sense of advocacy of abstract doctrine within the period of the statute limitations that is in September 1, 1951 for the date of the indictments.

The only evidence of Party advocacy was the elimination —

Potter Stewart:

What is the (Voice Overlap) — what is the —

John J. Abt:

Pardon?

Potter Stewart:

— limitation period, three years?

John J. Abt:

Well, it’s a little over three years, Your Honor, because the four — the five-year statute had been passed in the interim.

Potter Stewart:

I didn’t quite understand.

Is it three-year, two-month-period, I’m just asking on curiosity.

John J. Abt:

Because of the — the peculiar effect of the increase of the statute of limitations from three years to five years shortly before the indictment in this case was referred.

But works out there automatic, which is three years, two months and —

Potter Stewart:

I see.

John J. Abt:

— it’s complicated to go into.

Potter Stewart:

I see.

John J. Abt:

If I could even remember it now, I don’t remember the argument but that — but that what it is.

Potter Stewart:

At least you both agree as to what —

John J. Abt:

We all agree that the statutes runs from September 1st of 1960.

The only evidence the Party advocacy within the limitations period was offered by the petitioner.

It consisted of writings by the Chairman of the Party, advocating the establishment of socialism by peaceful parliamentary means.

The court below ignored petitioner’s evidence.

It made up for absence of any prosecution evidence on the subject by invoking an inference and I quote from the court’s opinion, “That the character of the Party, as a group, dedicated to violent overthrow of the Government, established in prior years continued unaltered through the statutory period.”

And the Government here, likewise, relies on the same inference.

But the issue in this case obviously, is not the general character of the Party or to what goal it was dedicated during the limitation’s period.

The issue is whether within that period, the Party performs certain verbal acts, the utterance or publication of words advocating forcible overthrow.

So called, presumption of continuance applies only where the existence of some condition, quality or tendency is in question.

It does not and purely, it cannot, at any application for the performance of an act at a given time is an issue.

For example, no lawyer, in his right mind, would argue that because I had a record of five previous convictions for driving through a red light at the corner of 16th and K Streets that it would be presumed that I drove through the same light of some time after September 1, 1960.

It’s just as absurd to argue that if the jury had found that the Communist Party had advocated forcible overthrow prior to September 1, 1951.

He was entitled to infer that the Party engaged in some — in the same advocacy that sometime thereafter.

This would substitute a presumption of guilt or the constitutional presumption of innocence.

Moreover, even of such a presumption or otherwise permissible and I think plainly, it isn’t.

It was rebutted by the uncontradicted evidence that petitioner’s advocacy during the limitations period was peaceable.

I now turn to the evidence concerning petitioner’s knowledge and intent and for that purpose, I’ll assume that the prosecution proved that the Communist Party incited forceful overthrow within the limitations period.

Even on that assumption, the conviction cannot stand where there was a complete failure of proof on the issue of guilty knowledge and guilty intent.

Prosecution called nine witnesses in additional to Lautner.

Five were former Party members.

Three of them had joined the — the Party as paid spies for the F.B.I.

The four remaining witnesses merely identified the petitioner as having lived and held a factory job in New Jersey under another name in the years 1953 to 1955.

The prosecution witnesses praised petitioner’s membership and activity in the Communist — in the Young Communist League in the Communist Party from his high school days in 1933 and 1951.

John J. Abt:

The evidence pictured him as a devoted communist who believe in the ultimate victory of socialism in this country but there’s not a suggestion in the record that he so much as predicted forcible overthrow, let alone incited action that bring it about.

Indeed, the record contains only one instance in which a reference was made to forcible overthrow in petitioner’s presence.

This was said to have occurred in 1935, 20 years before the return of the indictment.

When an instructor in a class conducted by the Young Communist League stated that resort to forcible overthrow wouldn’t be historically necessary.

It appears at page 255 in the record.

Assuming the relevance and credibility of anything so remote, the statement was no more than a prediction about coming events and clearly fall short — short of any incitement.

William O. Douglas:

Well, was that the issue, statement or —

John J. Abt:

That was said to have been made by a teacher in a class attended by the petitioner.

And it’s the worst thing there is against the petitioner in entire way.

The evidence for the prosecution showed that petitioner urged building the Communist Party among workers in heavy industry in the Buffalo area, that he had dealings with three witnesses about the purchase and concealment of printing presses for use in the event that the Party was denied access to commercial printing facilities.

They discussed the matter of locating homes where people could takeaway refuge if they had to go into hiding.

And that he himself moved with his family to New Jersey where from 1933 to 1935, he worked for the Goodyear Rubber Company, I think it’s at Stratford under an assumed name.

None of this evidence is relevant for the issue of petitioner’s knowledge and intent.

Potter Stewart:

Wasn’t there a conversation about harboring somebody who is advocated in atomic espionage?

John J. Abt:

That I included, Your Honor, among this business of arranging hideouts for people in case they’ve had to use them.

There were some reference — there’s something about the atom bomb harboring somebody, the man never showed up and nothing ever came to the whole conversation.

It obviously had nothing to do with that.

It might conceivably have some relevance with the conspiracy to — in that espionage or sabotage of the Company but it’s not the essence of the Court.

As I say, none of this evidence was relevant to the issue of petitioner’s knowledge or intent.

There is no evidence of the so-called underground engaged or plan to engage in incitement, to violence or other unlawful activities, much less that petitioner knew of any such purpose.

All that the evidence shows is that elaborate precautions were taken to protect the Party and its members against what was regarded as political prosecution.

This measures may have been ill advised, they have been foolish.

Certainly, they furnish no evidence of illegality.

The case for the prosecution on the issues of knowledge and intent that bottom rest on no more than the following.

First, that he was familiar with the classical writings in Marxism and Leninism.

Second, that he held positions of Party leadership in western New York and third, that he made a few innocuous remarks, the strongest of which I quoted from a moment ago.

Nowak versus United States held a similar evidence including statements that I think come far closer to the boundary that separates the advocacy of belief from advocacy of action, were insufficient to prove that the petitioner in that case had knowledge that the Communist Party incites to violent overthrow.

And Schneiderman versus United States shows that similar evidence is likewise insufficient to establish the petioner to have the specific intent of bringing about violent overthrow.

The Government in its brief studiously avoids mentioning either of these cases.

Although together, what the decision in Yates as I see it, they’re completely dispositive of all of the evidentiary issues in this — in this case.

John J. Abt:

On the standards of these decisions, there was a complete failure of proof as to each of the elements of the offense charge.

The Government was undergone misapprehension as to its burden of proof under the statute and the indictment.

Accordingly, this is a case whereas the Court stated in Yates, acquittal is unequivocally demanded.

I shall pass over the next point argued in my brief that the conviction must be reversed because it was the pain on the faces of evidence and matters wholly outside the petitioner’s knowledge and not otherwise connected up with him.

I argue the 4 (f) question at some length in my brief.

And I’d like to make only two observations briefly in addition to what was said here today on that question.

First, the effect of 4 (f) on the membership clause of the Smith Act was by no means inadvertent as we suggested here this morning.

On the contrary, it was very conscious and highly deliberate.

If you read the legislative history which is summarized in my brief at page 44, I think what very clearly emerges is the fact that Congress fully understood that the privilege of self-incrimination forced it to choose between the registrations provision of the Subversive Activities Control Act on the one hand and the membership clause of the Smith Act on the hand as a method of reaching members of the Communist Party whose only over deck consistent in membership, and that they deliberately chose the registration provisions of the Subversive Activities Control Act to accomplish that purpose and for that reason, immunize communist — members of the Communist Party from prosecution under the membership clause of the Smith Act.

Something was said this morning about Counselman versus Hitchcock and I shall argue tomorrow in the Communist Party case that the registration provisions of the Subversive Activities Control Act are unconstitutional because they compel self-incrimination and that — and in that connection, I point out that Section 4 (f) doesn’t rescue these provisions because it doesn’t satisfy the requirements of Counselman versus Hitchcock.

The Congress was fully aware of the holding in Counselman versus Hitchcock and its — the text of Section 4 (f) was prepared with the decision in that case and mine at least that Congress had the — had the — the text that had decision before them because the doctrine of Counselman versus Hitchcock was called to the attention of the Senate in the minority report of the Senate which commented on — on the fact that Section 4 (f) was drafted by the Senate, didn’t satisfy that doctrine.

And it was called in the attention of the House by Congressman Sullivan at the time that the 4 (f) was amended to improve immunization against the prosecution for other criminal statutes.

And I believe also, my recollection is that the doctrine of Counselman versus Hitchcock was also adverted through — in a letter by then Attorney General, now Mr. Justice Clark, to Congressman Celler who was then the Chairman of the House Judiciary Committee, so that Congress legislated the 4 (f) with Counselman versus Hitchcock in mind.

Now, as I say, I’ll argue tomorrow that plainly, 4 (f) doesn’t satisfy the Counselman versus Hitchcock doctrine.

And if that argument is sound and I don’t understand the Government to contend otherwise, then Section 4 (f) failed to accomplish its ultimate legislative purpose.

That is to insulate the registration provisions from attack on self-incrimination grounds.

But that fact does not militate against giving effect to the limited immunity of Section 4 (f) before us.

As Mr. Taylor pointed out this morning, the Court was confronted with precisely this situation and United States versus Bryan or Bryan versus United States and Adams versus Maryland.

Both of those cases involve Section 3486 of the Criminal Code which provides that no testimony by a witness before a congressional committee shall be used as evidence in a criminal proceeding.

That statute was originally inactive for the purpose of providing an immunity which would permit the compulsion of incriminating testimony before and — from witnesses before congressional committees.

Purpose was nullified by the Court’s decision in Counselman versus Hitchcock holding that the immunity conferred by this Section wasn’t coextensive with a privilege.

Nevertheless, the Court is held in both the Bryan and Adams cases that effect must be given to the limited immunity which Section 3486 reports.

And so in the present case, I submit that there would be no inconsistency in holding on the one hand that Section 4 (f) bars the prosecution of communist under the membership clause but at the same time, deciding in the Communist Party case that the immunity conferred by 4 (f) is not broad enough to foreclose a claim of the privilege as a defense to registration under the Subversive Activities Control Act.

Turning now to the constitutional issues, I want first to discuss the questions posed in the Court’s order for re-argument with respect to the clear and present danger doctrine.

As I — as I understood Mr. Davis this afternoon, he conceded that the membership clause must satisfy that doctrine.

If we state my conclusion at the outset, it’s my view that the term present danger clause is applicable and is violated by the membership clause both as a clause as written and as the Government proposes to embellish it with an attempt and activity and if this is so, whether the doctrine has given the Holmes, Brandeis interpretation or whether it’s given the Hand and Vinson interpretation.

I suggest that it’s important at the outset to state with some precision to make sure of the conduct which the membership clause proscribes.

It doesn’t punish and accuse for its own advocacy.

Both has written and is now embellished by the Government.

It punishes him because of the advocacy of other members of the group for which he belongs.

John J. Abt:

Accordingly, it is not advocacy but association that the membership clause makes permanent.

As NAACP versus Alabama holds, freedom of association with a group engaged in advocacy is a form of the freedom of assembly and is — is within the protection of the First Amendment.

Since the membership clause punishes association with such a group, that is to say with a group engaged in advocacy, the clear and present danger doctrine is applicable to the clause just as it is to any other restraint from the exercise for First Amendment right.

Question then is, how shall the clause — how shall the doctrine be applied to the membership clause?

However, the doctrine is interpreted.

It focuses on the consequences of the conduct which is the object of the restraint in question.

It measures the validity of the restraint by the nature of the danger of any, which may be anticipated from the conduct sought to be restrained.

The conduct which the membership clause would restrain by punishing it in the present case is Noto’s membership in the Communist Party.

The issue under the clear and present dangen — danger doctrine therefore is not as to the danger from the advocacy of the Communist Party.

That danger would be relevant only under a statute punishing advocacy.

The issue here is as to the danger from Noto’s membership in the organization.

In that connection, although De Jonge versus Oregon was not decided in terms to clear and present danger, I submit that it’s decisive of the question.

Statute in De Jonge punished association with an organization engaged in seditious advocacy by making it a crime to assist in the conduct of a meeting of the organization.

As construed by the state court, the statute makes such assistance, criminal, notwithstanding that the meeting was lawful and peaceable.

The Court invalidated the statute has so construed to tell that participation in a lawful, peaceful meeting may not be punished regardless of the fact that the sponsor of the meeting is engaged in a legal advocacy which can be function.

Felix Frankfurter:

But that was not part of the statute.

That was not part of the proscribed offense.

That was not charged in the indictmen.

John J. Abt:

Yes, Your Honor.

That’s perfectly correct.

The clerk in the onset and I quote, “These, referring to First Amendment rights may be abused by using speech or press or assembly in order to incite the violence or crime,” but immediately thereafter, Mr. Justice — the Chief Justice Hughes added.”

A legislative intervention can find constitutional justification only by dealing with the abused.

The rights themselves must not be curtailed.

Thus, the constitutional question which De Jonge presented was not whether the advocacy of the Communist Party was an abuse.

That is whether it created a danger to the Government.

The only relevant question was whether the Act which statute punishment, association with the Party in the conduct of its meeting was an abuse.

That is to say was self-dangerous.

And so here under the membership clause, the issue was not as to the danger from the advocacy of the Communist Party.

Well, that danger is taken care of by punishing such advocacy under other provisions of the Smith Act.

The issue here is whether the membership of the accused in the organization is itself creative of the danger.

John J. Abt:

Since this is the issue, the membership clause is plainly unconstitutional on its basis.

Whereas the Government itself concedes, the membership of a single individual cannot, under any conceivable circumstances, create a clear and present danger of the evil to which the Smith Act would address and attempt at the violent overthrow of the Government.

The Government contends in its brief, brief in Noto on re-argument — in the Scales rather on reargument that it is not the membership of the accused individual alone but the aggregate effect of the membership of all persons in the group, it must be looked to in determining whether a clear and present danger exists.

De Jonge disposes of this contention also.

The accused in that case, De Jonge, gave assistance and support to the Communist Party by assisting in the conduct of its meetings.

But great many other people did likewise, the total effect of their actions would be materially to enhance the influence and prestige of the Party.

But the Court did not test the validity of the statute by measuring the aggregate contribution to the Party’s unlawful objective which might be made by all the persons who did or would assist in the conduct of its meeting.

Instead, the Court asked too much more simple questions.

It asked whether performance by De Jonge himself of the Act which the statute punished, was an abuse of his First Amendment rights.

That is to say whether it his assistance, the conduct of a lawful meeting endangered organized Government.

Same inquiry must be made here, does the only act which the statute makes an offence in which the indictment charges, the accused membership in the organization.

Does that create a danger to organize Government?

The answer here must be the same as the answer of De Jonge.

The answer is fatal, I submit to the statute.

In arguing the constitutional question, the Government also contends in its brief that the membership clause is essentially a conspiracy statute similar to the one upheld in the Dennis case.

But in arguing the sufficiency of the evidence in this case, the Government says that in a membership case, it is not necessary to prove and I quote “that the defendant personally conspired to engage in a forbidden advocacy”.

It is indeed a strange kind of conspiracy statute that authorizes a conviction for conspiracy without proof that the accused conspired.

Certainly, the statute, as written, requires no such proof or it authorizes a conviction notwithstanding that the accused disagrees with the advocacy of forcible overthrow, does not intend by his membership to bring about forcible overthrow and engages in no membership activity of any kind.

The additional agree — ingredients of intent and activity which as Mr. Davis argued so forcibly this morning in the constitutionally protected activity which the Government proposes to supply in this case, too little to improve the resemblance of the statutes of conspiracy law.

Felix Frankfurter:

Do you mention — do you (Inaudible) Mr. Abt.

John J. Abt:

Yes, sir.

Felix Frankfurter:

You might disagree with the — the purpose of the Party himself has nothing further, it wasn’t (Inaudible)

John J. Abt:

It does not content by his membership to bring about the violent overthrow.

I’ve analyzed these ingredients of intent and activity in my brief, the reply brief, and have shown that they can’t possibly substitute for what is the gist of the offensive conspiracy and his participation in an agreement to violate the law.

But even assuming that evidence of the accused intent and activity, as the Government defines and now today as we define them, the probative of his participation in an illegal agreement, the membership clause could still not be sustained as a conspiracy law.

Or in every conspiracy case, the issues as to the existence of a conspiracy and the membership of the accused in it are and must be submitted to the jury, and this is so no matter how compelling the evidence in the particular case may be.

In a prosecution under the membership clause, however, no such questions are given to the jury, even as the Government rewrites statute.

The jury gets no more than the questions of knowledge, intent and activity and membership.

Thus, the Government’s argument must come down to the proposition that jury finding is against an accused on these four matters, membership, knowledge, intent and activity, raises a conclusive presumption that he was a Party to an agreement to advocate proscribed doctrine.

But as Holt versus United States and a long line of cases holds, the Congress may not legislate such presumptions.

John J. Abt:

Certainly therefore, the Court may not supply such presumptions by judicial construction of statutes.

The fact is that the Government is trying to do two things in this case.

On the one hand, it hopes to sustain the constitutionality of the membership clause on conspiracy for instance.

On the other hand, it wants to avoid the embarrassing necessity of proving a conspiracy in prosecutions under the Smith Act.

These two objectives, unfortunately for the Government, are obviously irreconcilable.

Laborious effort to reconcile them, simply emphasizes the fact that the membership clause is unconstitutional because it violates the clear and present danger doctrine and then imputes guilt solely from innocent association.

To conclude, I believe that Dennis versus United States was wrongly decided and I share the hope expressed by Mr. Justice Black in the dissenting opinion in that case.

But whatever else Dennis may stand for, it does not and cannot support the constitutionality of the membership clause.

For all of the majority opinions in that case, emphasize that it was the presence of an active conspiracy that created the danger and Chief Justice Vinson stressed that it was the nature of the defendant’s activities and their power to bring about the evil that brought them outside the protection of the First Amendment.

Under the membership clause in contrast, an accused may be convicted without proof that he conspired, and although he has engaged in nothing but peaceable activity and is absolutely powerless to bring about the evil.

For these reasons, I submit, membership clause is sufficiently in conflict with the First Amendment.

Thank you.

Earl Warren:

Mr. Davis — oh Mr. — Mr. — Mr. Maroney.

Kevin T. Maroney:

Mr. Chief Justice and may it please the Court.

I intend first to outline the Government’s evidence in the case and to argue the question of sufficiency and miscibility of the evidence.

And Mr. Davis will then conclude the Government’s argument on the constitutional and other related questions.

First, to take up one of the early questions which grows — during Mr. Abt’s presentation, the question of the — what the petitioner alleges to be the failure of the Court of Appeals to apply the test of the Yates case.

In — in that connection, our brief and the Court of Appeals in the conclusion of the brief, page 62, the first sentence is, “It has concluded that there was sufficient evidence to warrant the jury’s verdict of guilty in this case within the meaning of Yates.”

And of course, running through the brief and many other instances in — in argument by the Government in the Court of Appeals that the evidence here, as far as the Communist Party, the Party’s advocacy was concerned yet in fact meets the Yates requirements.

Earl Warren:

Did the Court address itself to that question?

Kevin T. Maroney:

No, not specifically, Your Honor.

On the other hand, we think it’s perfectly clear that the Court of Appeals, when it stated at page 449 which was read earlier, 449 of the record, that the incitement action test, enunciated in Yates has been applicable.

Stately referred to the — the member’s own action because on the very next page of the opinion, the second — third last sentence of the opinion, the Court said, “Since the defendant was not indicted for activities, the end result of which, which culminate in action on the part of others, it was not necessary that the evidence of his activity meet the Yates steps.”

Well, we think that’s what the Court referred to.

It referred to the activities of this particular defendant in — in the non-applicability of Yates criteria.

Now, petitioner further suggests that we prove in this case nothing more than we proved in the Yates case on the question of the Party’s advocacy.

And he further argues that this Court in Yates held that the evidence there was strikingly insufficient to prove that.

We think he makes — he — he makes too much of the Court’s comment that the evidence there was strikingly insufficient because this Court, as we read the opinion in the Yates case, specifically held that it was not ruling on the question of whether or not a jury under proper instructions could have found that the Party teaches and advocates in the sense of a call-to-action.

And I think on the contrary, the Court indicates that under proper instructions, the Court could, at least insofar as where the jury could have, insofar as some of the defendants were concerned, possibly have found that the incitement was in the nature of a call-to-action.

Potter Stewart:

Oh, isn’t it true that the — that the Yates decision, and as you know it’s purely (Inaudible) but isn’t it true that — that that case does decide that the evidence, as to the Communist Party — to all Communist Party, to be sure, that case in the Communist Party in California rather than Communist Party (Inaudible) because the Communist Party, its activities as a Party, did not rise to the required incitements of action.

Potter Stewart:

And that the only basis on which certain of those petitioners were sent — sent to the — a new trial might be justified, was specific evidence relating to them and not evidence having the community activities of the Party.

Kevin T. Maroney:

Well, the Court did say in — in one part of the opinion that the evidence as to the nature of the advocacy of the Communist Party was strikingly deficient on the questions, not whether the advocacy of overthrow was an element or were intent of the Party which the Court held in one, but that — it was strikingly deficient on the question of whether the advocacy was in the sense of a call-to-action rather than the advocacy of an add effect ideas.

I — I think the Court, however, indicated in discussing some of the evidence later on with respects to the evidence related to particular petitioners there concerning whom it will order a new trial rather than acquitting.

That some of the evidence there coupled with the Party’s teaching an advocacy of Marxism and Leninism, might have been sufficient without deciding the question, it might have been sufficient or a jury under proper instructions to conclude that the — the advocacy of action of the Party was a call-to-action and not just an advocacy of overthrow as an abstract theory.

In other words, I think the Court there was doing what the Court did — what this Court did in the Schneiderman case.

The old Schneiderman case, 320 U.S. 118 indicated that it would not say that a reasonable man could not reasonably find on the basis of the Government’s evidence in the Schneiderman case that the Party thought and advocated the violent overthrow of the Government.

Earl Warren:

Is it true that — that none of these Yates defendants were ever retried because of the stated premise or the department that you could not reach the Yates statute?

Kevin T. Maroney:

Well, I think that the — I don’t recall the exact wording of the motion to dismiss.

Earl Warren:

I thought I read in the —

Kevin T. Maroney:

I think.

Earl Warren:

— press —

Kevin T. Maroney:

— that you must dismiss because of the —

Earl Warren:

Because of the (Voice Overlap) —

Kevin T. Maroney:

— these fixed standards —

Earl Warren:

— (Voice Overlap) but you couldn’t meet the — the Yates standard.

Kevin T. Maroney:

That, I think coupled with the fact, however, Your Honor, of the unavailability of some witnesses who had testified on at the earlier files.

So that — in any event in this case, we think that the — the evidence that we have that was offered in this trial does meet the standards of the Yates case and it does demonstrate that the Communist Parties teaching an advocacy of overthrow is in the sense of a call-to-action.

Earl Warren:

In what sense is it — in what sense is it stronger than the Yates case?

Kevin T. Maroney:

Well, to begin with in this case, the — the witness Lautner, who has been a member of the Communist Party from 1929 to January 1950, testified here generally as to his experiences in activities in the Communist Party.

His knowledge of the Party’s systematic educational program, his participation in that program going that entire 20-year period.

He testified (Inaudible) to his attendance that state conventions, national conventions throughout that period, testified as to his attendance at the national training school of the Party which is the highest training school for the Party, which incidentally, the evidence also shows the petitioner Noto, also, attended in the year 1947.

Now, Lautner also identified the books, the so-called classics, Marxism and Leninism which are used as part and parcel of the Party’s systematic educational program for indoctrinating its members.

He — he introduced the books which were also used in the — in the Schneiderman case, foundations of Leninism, state revolution, problems with Leninism and so forth.

Now, Lautner also testified as to the reconstitution of the Party in 1945 and the fact that the Party in 1945 was returning to the basic principles of Marxism and Leninism, was returning to the — to the class warfare that has been abandoned by Earl Browder, during the Communist Political Association period in 1944 to 1945.

Lautner testified that Marxism and Leninism as taught in the school is not a dogma but is a guide through action.

They thought that that he was taught in the national training schools that Marxism, Leninism and theories apply to the United States and that the Communist Party rejected specifically the theory of American exceptionalism which was a —

Felix Frankfurter:

American what?

Kevin T. Maroney:

American exceptionalism.

Felix Frankfurter:

Oh, yes.

Kevin T. Maroney:

That was a doctrine —

Felix Frankfurter:

Alright, thank you.

Kevin T. Maroney:

That was a doctrine that socialism could come peacefully for the United States.

This was considered in Party classes and the — and the Party members were taught that American exceptionalism was a (Inaudible) theory.

Felix Frankfurter:

Exceptionalism — exceptionalism deviation of its (Inaudible)

Kevin T. Maroney:

No, sir.

I don’t — I think —

Felix Frankfurter:

Deviation and (Inaudible) except to (Inaudible) ad hoc frequency.

Kevin T. Maroney:

I think so.

Yes, sir.

Potter Stewart:

Well, it means doesn’t it Mr. Maroney, America, unlike every other country in the world — in America unlike in every other places in the world, the communism might be a shape peaceably than a bloodshed?

Kevin T. Maroney:

That’s right.

Potter Stewart:

And that was — and that was a rejected doctrine.

Kevin T. Maroney:

That’s right.

Felix Frankfurter:

(Inaudible) exceptionalism to Marxism theory about where revolution comes, doesn’t it?

Kevin T. Maroney:

Lautner also testified as an expert, as a person with wide experience in the Party who is in a position to testify as to the — as to the attendance of the — objectives of the Party.s

And based upon his experience, he testified that the Communist Party advocated the overthrow of the Government by force and violence and teaches that it cannot come about, especially in a highly developed country like the United States without force, challenge and violence.

Further, he testified that the aim of the Party was to destroy capitalism when certain objective and subjective conditions were present.

Now, —

Hugo L. Black:

Did he indicate when they might come across?

Kevin T. Maroney:

The — the object of conditions would be a time of emergency, in a time of a war or a depression, when the — when the Government was not in the best position to govern.

And the subject of condition would be when the Communist Party is sufficiently strong so that it would represent and collaborative the vanguard of the working place.

Now —

Earl Warren:

Have you completed the recitation of his testimony?

Kevin T. Maroney:

As far as Lautner is concerned, yes, sir.

Earl Warren:

Did he testify in the Yates trial?

Kevin T. Maroney:

He did — he did, yes, sir.

Earl Warren:

Where in is his testimony different than the Yates trial?

Kevin T. Maroney:

Well then, (Voice Overlap) —

Earl Warren:

In such a manner that he’s making — in such a manner that he makes this stronger.

Kevin T. Maroney:

Well, that testimony parallels the testimony that Lautner gave in the Yates testimony.

Kevin T. Maroney:

And I think where —

Earl Warren:

Well, but didn’t he —

Kevin T. Maroney:

— where this case goes further than the Yates case is in connection with Lautner’s testimony as to the operations of the underground operators of the Party.

The petitioners involvement in setting up the underground operators and the — the Communist Party’s and these petitioner’s activities in the — in — what is called the concentration program.

The evidence here, for example, shows that the — that the Communist Party regards certain key basic industries as — as vital to the — to the nation’s economy, industries such as steel, mining, transportation.

Having in view, placing the Party in a stronger position where it would be able to upset old bank, the economy of the country or the ability of the country to operate successfully.

The Party endeavors to put key people in those key industries in key places in those industries so that they would be in a position to slow down production or to completely stop production when the Party leaders thought the time was right.

Earl Warren:

That wasn’t in the Yates case at all?

Kevin T. Maroney:

Well, there was some discussion there of concentration but of course the important difference between the Court’s conclusion in the Yates case, what we think should be the conclusion here is the fact that the evidence of that nature was not presented to the jury for decision under improper instructions as to incitement to action.

Earl Warren:

What specific acts of incitement would Lautner testify to, so far as this defendant is concerned?

Kevin T. Maroney:

Well, no specific action of incitement as to — no — no specific statements of incitement.

Lautner did testify.

Earl Warren:

As to anything he did — as to anything he did.

Kevin T. Maroney:

Well, he — he can testified that Noto helped him in the Party, set up an elaborate underground operators in —

Earl Warren:

When was that done?

Kevin T. Maroney:

That was begun in 1948, continued in 1949 and 1950 in the — in the entire State of New York.

Earl Warren:

Was that in the statutory — statute of limitations?

Kevin T. Maroney:

Well, it extended it to the period of the statute of limitations.

Noto himself went underground in about October of 1951 which is about two months within the statute of limitations and remained in the underground under — under circumstances which would warrant the inference that he went there under orders and directives of the Party.

Earl Warren:

Is going — going what you call underground incitement?

Kevin T. Maroney:

No, but I think that the — the underground activities —

Earl Warren:

Is it evidence of incitement?

Kevin T. Maroney:

I think — I think, Your Honor that the — the evidence of the underground activities coupled with the Party’s tenant of overthrow the Government by force and violence, permits the — the jury to draw the inference that the — the advocacy of overthrow is not abstract but that it is in the sense of a call-to-action.

The purpose of the underground is to maintain the Communist Party in a condition despite anything that happens, despite prosecution of its members or anything that might happen to impair the Communist Party’s functioning, place the Party in a position where it can continue to function legally or illegal, and it can — can continue to give guidance.

Now, that coupled with the Party’s activity in the — in the concentration field.

I mean, in — in this case for example, he has specific indication that the petitioner Noto, receiving directions from the — from Party headquarters center, a member of the organization down to New York to attend the concentration of communists.

There, it was decided that the Party would attempt to infiltrate the United Automobile Workers.

Earl Warren:

Infiltrate to do what?

Kevin T. Maroney:

Infiltrate the union with Party members so that they would be in a position in the shops, particularly in this instance, the key shop that they had designated of the Chevrolet, Delavan or the Delavan General Motors Chevrolet plant in the Buffalo area.

Earl Warren:

Well, were they — they’re supposed to carry on any activities of incitement?

Kevin T. Maroney:

Well, I think the purpose of their being there is to put them — get them in to a position.

Earl Warren:

But do you think — I’m — I’m not asking you what you think.

I’m asking what the record shows, that’s what we’re talking about.

Kevin T. Maroney:

Well, the record shows — I think that that an inference reasonably, could be drawn that their — the purpose of their being sent into these key industries is to have them in a position when these objective and subjective conditions might arise in the future where the Communist Party could — could avail themselves of these people on these key positions and disrupt the economy or interfere with anywhere efforts (Voice Overlap) —

Earl Warren:

Where is the evidence in the records from which — which the (Inaudible)

Kevin T. Maroney:

Well, for example, on — in Exhibit 86 is a flier.

Earl Warren:

Is what?

Kevin T. Maroney:

Is a flier, a leaflet.

Earl Warren:

Well, leaflets, yes.

Kevin T. Maroney:

That was disseminated at a Communist Party meeting.

Earl Warren:

When?

Kevin T. Maroney:

In 1948 by the local director of steel concentration in the Buffalo area which was at that time under the supervision of the petitioner.

The pamphlet describes the three basic industries a steel, railroad and miner and then it goes on to say this, and this is quoted at the record page 3523.”

These are basic to the national economy, these basic industries.

That is, if anyone or are all free, are shutdown by a strike, our economy is paralyzed.

It is necessary for Marxism, revolutionary party to be rooted in these industries.” Now —

Earl Warren:

Who — who put that out, the Party?

Kevin T. Maroney:

This — this was distributed at a Communist Party in the union (Voice Overlap) —

Earl Warren:

But that you didn’t have to — did the — did the parties put that out?

That’s what I said.

Kevin T. Maroney:

Well, I don’t know that it indicates —

Earl Warren:

Well, it might make a difference, might (Inaudible)

Kevin T. Maroney:

Well —

Earl Warren:

— just an individual of the Party or whether it’s the Party itself that does it?

Kevin T. Maroney:

Well, this was distributed, Your Honor, by the local director of steel concentration Party.

Earl Warren:

I — I’m not — I didn’t say it didn’t do it.

I just asked you whether it was done by the Party or whether it was done by some — some individual.

We have people —

Kevin T. Maroney:

Oh, no, it’s —

Earl Warren:

— writing on communism and writing on all kinds of political theory and certainly —

Kevin T. Maroney:

(Voice Overlap)

Earl Warren:

— everyone who’s gone through a Party is not responsible for whatever a member in the Party might — might say.

And I merely asked you who — who put that out?

I don’t know.

Kevin T. Maroney:

No, Your Honor, this — this is part of what the evidence shows to be a — a concentration program of the Communist Party which was participated in and in part supervised by the petitioner in this case, and this particular area of concentration relating to key industries in the Buffalo area, in the up State New York area where the subjects for discussion at Communist Party importers in New York City and in — in Buffalo.

Earl Warren:

Was he at the meeting where this — this was distributed?

Kevin T. Maroney:

No, he was not at that particular meeting.

What —

Earl Warren:

Then wouldn’t it become important to know who — who did that —

Kevin T. Maroney:

I —

Earl Warren:

— if he wasn’t there?

Kevin T. Maroney:

Well, as I say, Your Honor, it was distributed by the local director of steel concentration, a man by a name of Dave Pascual, who was a Communist Party official operating under the supervision of the petitioner Noto, who at that time was the chairman of —

Earl Warren:

48.

Kevin T. Maroney:

— of the — yes, sir.

Now, also in the year 1948, that the — the petitioner himself announced they plan for recruiting 135 new Party members and he specified that there would be 40 from steel, 30 from electrical, 6 from brass and 3 from railroad.

And that was on a — a basis of a — of a — little leaflet that he — that was distributed at that meeting and that he discussed the — the material on the leaflet.

Now, in —

Earl Warren:

May I ask — may ask if there’s any particular act of incitement, established on the part of the petitioner within the three years and two months of the — from the statute?

Kevin T. Maroney:

Not that he himself uttered any phrases to incitement through action.

Well, of course, it is our theory in — and it would be Court of Appeals’ theory that it is not necessary for us to show, to prove a membership case, that the particular member himself personally taught and advocated the violent overthrow.

What is necessary is that the Party, during the period in question, taught and advocated the violent overthrow of the Government.

Earl Warren:

What —

Kevin T. Maroney:

Doing —

Earl Warren:

What I — what I was thinking, you — you go back a long ways to show incitement, as I understood from the argument of counsel, you go back to 1935 to simply what was said about — revolution is historically necessary or essential.

Now, if you’re tying that to the defendant, won’t you have to try something to him within the statute of limitations?

If —

Kevin T. Maroney:

I —

Earl Warren:

— if you’re going to — if you’re going to show that he is — he’s guilty of a — an incitement that will send him to the penitentiary?

Kevin T. Maroney:

Well, we — we show of course that during the statutory period, the Party continued to be an organization such as it had been for the preceding 20 years, an organization that teaches and advocates the overthrow of the Government by force and violence.

We show that he continued to be a member of the Communist Party to be one of its leading officers and we showed that he had the knowledge that the Communist Party was an organization of the kind alleged in the indictment, and that he had the necessary specific intent.

Kevin T. Maroney:

Now, I don’t think we have to show that he, at any time, personally taught or advocated the overthrow of the Government in the language of incitement.

Earl Warren:

And do you — is it a fair statement then that there is no active incitement on his part within the statute of limitations?

Kevin T. Maroney:

There is no utterance —

Earl Warren:

Or conduct, action.

Kevin T. Maroney:

Well, I think that the — Your Honor, in the light of the — the evidence that went before, that the — the petitioners going into the underground personally and under circumstances which make it obvious that he went there on directions of the Communist Party and after he had indicated to some of his fellow Party members that he would do whatever the Party told him to do to bring socialism in this country, to — to bring this country to the — to that glorious end of socialism, that he would even be willing to lay down his life to — to have that come about.

And then he went into the underground.

He disguised his appearance.

He ended up in New Jersey for about a two-year of period.

He — he lived there and worked there in a key facility in New Jersey incidentally, the Good Year rubber plant and living there under a fictitious name.

I — I think that that activity on his part, in the light of the evidence that went before.

That is the — the explanation of what Marxism and Leninism teaches.

What the Party teaches and what the Party was doing to implement the teachings of Marxism, Leninism to put itself with the position whereby when the time came, if it came, it would be in a position to — to assist, and as — as they put it, turn an imperialist war into a civil war or to cripple the Unites States in its defense evidence.

I think that from this literature and from that kind of evidence, the jury was completely warrant in concluding that during the period of the indictment, the — the petitioner was a member and that the — the Party was an organization which advocated violence in this sense of a call-to-action as required by the Yates case.

Now, there were some mentioned —

Hugo L. Black:

Was there anything in the evidence to show when they expected (Inaudible)

Kevin T. Maroney:

No, not — not in — in that sense, there is in the evidence.

Hugo L. Black:

Have you read the facts concerned in the (Inaudible)

Kevin T. Maroney:

Yes, sir.

Hugo L. Black:

Do you think they have any bearing on this case?

Kevin T. Maroney:

Well, I think that in this case, as far as Paramount is concerned, he governed by the Dennis case and the Yates case because clearly here, the Party is trying to put itself in the position so that as soon as possible, it will make an effort to bring about the overthrow.

Hugo L. Black:

I mean as soon as reasonably possible I suppose under the law.

Kevin T. Maroney:

That’s right.

Well, as soon as — as soon as possible in the sense that this — this object of conditions might occur, for example, a war.

If there were to be a war next year or five years from now, Party was in a position where it had infiltrated these key basic industries and if the leaders of the Party thought the time was right, then that would be the occasion.

Here, for example, there’s — there —

Hugo L. Black:

Is that something like the saying that the indirection order if it is that it would happen at anytime within reach?

He might reasonably expected influence to continue to direct the operators, imposing such action by those whom you thought could be used?

Something like that?

Kevin T. Maroney:

It would — it would be — this — this action would not be brought about until such time as the circumstances made it appear to the leaders of the Party that they had a chance of success.

Hugo L. Black:

I’ve just read to you the cause of the statement of the court judge, the jury member such as Lautner, (Inaudible) could not support (Inaudible) his right to solicit membership to the Communist Party or they talked about strikes and boycotts and so forth in which the threats were at least each was (Inaudible) field that you have mentioned the other day.

Kevin T. Maroney:

Well, I — I think Your Honor in light of the considerations mentioned by Judge Hand in the — in the Court of Appeals decision in the Dennis case.

The — the world tensions, the international situation, the idealogical attunement of the Communist Party at least to Soviet Union, that those facts, all of which of course go to the question of clear and present danger but they are the factors which make these cases different, which permit a prosecution because of the clear and present danger.

Potter Stewart:

In this record, Mr. Maroney, as to the size of the Communist Party during the period or during the three-year period and all?

Kevin T. Maroney:

Well, not specifically during the three-year period, Your Honor.

I’m not — not — specifically, if the 1951.

But in 1948, when Lautner was directed to set up the underground, he testified that at time, there were about 30,000 Communist Party members in New York State alone.

And that it was his job as part of the underground setup to integrate about 10% of that 30,000 people into the underground operators so that in 1948, there were at least 30,000 just in New York State, according to Lautner’s testimony.

I — I will give you figures as far as the — the testimony of the director of the F.B.I. committee hearings during the period of 1950 to 1955.

In 1950, for example, he testified that the Communist Party membership in the United State was approximately 53,000.

1951, it’s 43,000, 1952, 31,000, 1953, 24,000 and in 1955, there — there was not — I don’t think they’ve given from 1954 to 1955, there were 22,000 members of the Party.

So that in the period of 1950 to 1955, the membership ranged down with 53,000 to 22,000.

Felix Frankfurter:

I don’t know what that would mean (Inaudible)

Kevin T. Maroney:

No, sir.

Now, I think there is another portion of evidence that was referred to earlier during Mr. Abt’s presentation and that related to the harboring.

In 1951, spring of 1951, the petitioner talked to the witness Chatley, who was at that time also a member of the Communist Party and he told Chatley that he had an assignment.

The Communist Party which would require Chatley’s assistance and that it would probably be the most important thing that Chatley would ever do in his life.

He said that there was a — “One of our top officials,” he said, “was on the land in connection with the Atom Spy business”, and that it was necessary for him to get out of the country, and that he had been asked to designate someone’s home where he could be hidden out for three or four days while he continues his route western.

Now, within the next couple of weeks, Noto gave to Chatley the instructions concerning the necessity for Chatley to stay at home from midnight until early in the morning or daylight and that a person would come and identify himself by a pseudonym.

He would make a phone call and would then leave, come back with the person who is being harbored and the person would stay there for three or four days at which time, he would leave and then continue on his way.

Now, this expected harboring never came on but in conjunction with the Party’s underground activities —

Hugo L. Black:

Well, this has been done with the harboring?

Kevin T. Maroney:

Sir?

Hugo L. Black:

I didn’t quite understand you.

Kevin T. Maroney:

I say the —

Hugo L. Black:

What had the man, I didn’t quite understand you.

Kevin T. Maroney:

Oh, when Noto first explained to Chatley when he asked him if he would put this man up.

He explained to him that this person, one of our top officials, one of our top people, was on the land in connection with the — what the newspapers have called the Atom Spy business.

Hugo L. Black:

On the land.

Kevin T. Maroney:

And that —

Hugo L. Black:

On the —

Kevin T. Maroney:

On the —

Hugo L. Black:

— land?

Kevin T. Maroney:

On land from the police.

He was fleeing —

Hugo L. Black:

Oh, yes.

Kevin T. Maroney:

— from the police and it was necessary that he get out of the country.

Now, for one — for what reason we don’t know but this anticipated harboring for which Noto laying Chatley’s home up.

Hugo L. Black:

Who was the man?

Did they ever get him?

Kevin T. Maroney:

No, we — that’s — there’s no indication of that in the record.

John M. Harlan II:

Well, is that the Rosenberg case or what?

Kevin T. Maroney:

I — I don’t —

John M. Harlan II:

In the later testimony in the record, that the first, the Rosenberg, I thought it had been the Rosenberg.

Kevin T. Maroney:

Rosenberg case was —

John M. Harlan II:

Episode (Voice Overlap) —

Kevin T. Maroney:

— first brought in 1950.

John M. Harlan II:

(Voice Overlap) the — his character is unidentical.

Kevin T. Maroney:

That’s correct, sir.

Now, on the — the entire record, we think that — that the — the evidence here satisfies what the Court, in discussing the sufficiency of the evidence in the Yates case said was the type of thing where the jury, given proper instructions such as we’re given here, might reasonably conclude that the — that the teachings were not abstract but were in the — in the nature of an incitement through action in the future.

The — they’re — they’re being proper instructions.

The Court having charged the jury that they must find that the advocacy must be of such a nature as to incitement.

The standard of review then, only is whether or not a — a — the jury could’ve reasonably have so found, not whether the Court would so find or would agree necessary with the jury, but whether or not the jury’s determination could be said on the evidence to be unreasonable, if it is reasonable and then of course, it would have to stand.

Earl Warren:

We’ll recess now.

Mr. Davis is —