Scales v. United States – Oral Argument – October 11, 1956

Media for Scales v. United States

Audio Transcription for Oral Argument – October 10, 1956 in Scales v. United States

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Earl Warren:

Number 29, Junius Irving Scales, Petitioner, versus United States of America.

Mr. Solicitor General.

J. Lee Rankin:

May it please the Court.

There are three or four other matters that I would like to go into and finish up on couple that I don’t think I got completed last evening.

First place, I’d like to call attention to the statute of limitations that I referred to, counsel for the petitioner asked me about the section, and it’s Title 18, Section 3282.

It became effective September 1, 1954 and extended the statute for a period of five years.

You recall the indictment here was November 18th of 1954.

I also want to call the attention of the Court, however —

Felix Frankfurter:

(Inaudible) the question?

J. Lee Rankin:

I don’t think the — the question is in the case —

Felix Frankfurter:

I see.

J. Lee Rankin:

— because the Court instructed the jury that was limited to the three-year period.

Felix Frankfurter:

And you say —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— it doesn’t help you any.

J. Lee Rankin:

No.

Felix Frankfurter:

It would help you.

J. Lee Rankin:

That’s right.

So we — we don’t have the question of whether or not it extends the period in violation of their rights.

Now, with regard to the Internal Security Act, I’d like — of 1950, I’d like to call attention to several things about the pattern of that Act.

It seemed to me that Congress was trying to provide for the registration, not only of individuals which was one of the more remote provisions of the Act, but for registration of the Party and the officers of the Party, and there were important sanctions with relation to the failure of the Party itself to so register.

There was also a provision that the Party did not register and those sanctions came into being.

The officers were required to register.

And if the officers failed to register, then the members themselves would have to register.

But the provisions in regard to the officers require the registration as to their functions and duties in their office.

That seemed to us that the problem that Congress had was whether or not by reason of recitals as to the character of the Communist Party as a conspiracy in detailed form as was set out in that Act.

It might be construed by the courts as a provision in itself which, along with the registration or the membership, might establish the crime.

And it was that they were trying to reach.

Now, when Senator Kilgore made his objections to the form of this proposed 4 (f) in connection with the Internal Security Act of 1950, there was no provision in the Act as it then was in regard to per se.

And in conference, they added the provision in regard to per se, limiting it to per se as well as the provision or of any other criminal statute.

J. Lee Rankin:

I’d like to call attention particularly to Section 17 of that same Act, which is set out on page 55 of our brief.

There, Congress provided the foregoing provision of this title shall be construed as being in addition to and not in modification of existing criminal statutes.

Now, we think regardless of anything else of our legislative history or any other interpretation that you could draw from the action of Congress in this matter that that should be conclusive because it seems to us, Congress said, “Whatever we do in this Internal Security Act of 1950, we just added on top of whatever we have done.

And whatever you do with it, don’t take it to try to reduce what we already have.”

Now, I think you have a further problem if you adopt the construction that is advanced by petitioner’s counsel in this matter in regard to Section 4 (f).

Because if you recall, the language of that section does not refer only to members as had been treated largely by petitioner’s counsel in the brief as though it did.

But it also refers to officeholders and says neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of these subsections or any other criminal statute.

What is the effect of that?

If you are going to say that regardless of the fact that Congress deliberately and carefully said this should be limited to per se membership and not membership with knowledge as the Smith Act said, then what about the provisions about an officer who is required to register and tell what his functions and duties in his office are with regard to the other provisions of organization and advocacy in teaching in a conspiracy in the other parts of the Smith Act?

It seems to me that that forces upon the Court a construction that the entire provisions dealt within the Dennis Act were intended by Congress that was discussing the successes of the Government in dealing with this problem in the Smith Act prosecutions as an intention of Congress to wipe them all out, and I don’t think that can be found.

But regardless of all the other refinements to the argument, when you get down to a proposition where Congress carefully says, “In the same statute practically at the close, that regardless of what we have done here, this is not to modify or reduce any of the criminal statutes that we’ve got in regard to this up to this point.”

Felix Frankfurter:

Mr. Solicitor, does your view of 4 (f), the controversial clause gets down to the statement, gets down to this, that is merely a declaratory statement by Congress?

J. Lee Rankin:

That’s —

Felix Frankfurter:

Anything but declaratory, it must be a modification.

J. Lee Rankin:

That’s my interpretation of it.

And I think the Court can deal with it like it did in the Hutchinson case in applying the Norris-LaGuardia Act to the Sherman Act as a matter of trying to interpret this situation, but not to reduce the Smith Act which Congress was not, in any mood or temper, to do at the time it passed this Act.

Felix Frankfurter:

Are there anything if one goes beyond the statutory language and I know there’s such a tendency going to legislative history that we now even (Inaudible) experience enable counsel to begin with legislative history (Inaudible)

If one goes to legislative history at the end instead at the beginning, is there anything which discloses (Inaudible) of mind on the part of Congress that this was put in merely out of an abundance of courts?

J. Lee Rankin:

Well, that’s the way we read the history, that Congress had this question brought up and it was a possibility.

And in order to maybe stamp on this fly with an elephant, they want to eliminate and maybe even the fly wasn’t there.

And they were trying to eliminate it with great force.

Felix Frankfurter:

(Voice Overlap) the history legislation had been made a declaratory statement.

J. Lee Rankin:

That’s right.

And that’s the way we view the Act in —

Felix Frankfurter:

That’s what your position that (Inaudible)

J. Lee Rankin:

That’s right.

Felix Frankfurter:

Suppose if it’s anything other than that, it must be a modification.

J. Lee Rankin:

Yes.

Yes, Mr. Justice.

Now, I’d like to turn to the next problem to the question that Mr. Justice Harlan asked which disturbed me and I don’t think I answered adequately for him or for the Court.

J. Lee Rankin:

In regard to the person who writes a letter in — into the Party who says that he’s sending in the dues and he believes in the Party, in its objectives, in its purposes and its intent to accomplish a revolution by force and violence, we suggest that that has knowledge and that has intent, why isn’t that a crime under the statute?

And the thing that disturbed me about is whether or not you had membership in that situation.

In fact, and I think that you have to start with genuine membership.

We’re familiar in — in our activities in life that there’s all kinds of membership, inactive, active, and the various organizations and many of them like various lodges or — or groups you can’t get into by merely writing letter saying you’re for everything that they’re intending to do or the objects and purposes that they have in mind in sending the necessary money.

You have to comply with their requirements before becoming a member.

And that is one — that is the first step.

Now, what does the Communist Party require in regard to membership?

The Government’s Exhibit Number 39 is a 1948 Constitution of the Communist Party of the United States was submitted in evidence in this case.

And in Article 2, Section 3, it is stated, “A party member is one who accepts the aims, principles and program of the Party as determined by its constitution and conventions, who belongs to a club and attend these meetings, who is active in behalf of the party program, who reads, and circulates the party press and literature, and who pays dues regularly.”

Now, that is the only evidence that I know of in the case as to the requirements of membership in the Communist Party except as you can deduce them from the actions of the petitioner and the witnesses in this case.

My question, assume a card carrying Communist, a card carrying member, so that he’s a member in every sense of the term, but he’s not an active one.

He doesn’t go around and preach.

He pays his dues.

He’s carried on the roles.

He carries the card.

And I understood you say that you would not regard that kind of a member as being subject to the membership clause.

J. Lee Rankin:

Well, the thing that bothers me is there’s another requirement in the — in their constitution.

He must — it says, “Who is active in behalf of the party program, who reads and circulates the party press and literature, and who pays dues regularly.”

Now, if you’ll assume all of those things in your question, then I’ll — I think I can answer it.

But you didn’t seem to me to assume all of those things, Mr. Justice.

Well, let me make my question then more specific.

Supposing a man has all of those attitudes of mind that are in that bylaw and he’s admitted to membership on those premises and he gets a card and then either through inefficiency or through waiver of those requirements or because they like him, they tolerate him as a member in the Party, don’t revoke his membership, don’t revoke his card even though he doesn’t become active in all those senses that you’re talking about there, so that he remains a member, is he subject to the membership clause?

J. Lee Rankin:

Well, I think that we would have difficulty with the Court if he would prove that he did not — he was not active in behalf of the party program.

In defense, if we would prove affirmatively that he did all of the things that you described and he would prove that he was not in fact active in behalf of the party program, I think the Court could fairly conclude that he was not in fact a member of the Communist Party under the statute.

Harold Burton:

And yet you would say then he was a member per se?

J. Lee Rankin:

I think he could be a member per se.

Harold Burton:

Although by the Constitution, he’s not a member.

J. Lee Rankin:

I think that’s a possibility.

But I think that the statute should be construed fairly to require the provisions of the constitution of the Party.

Felix Frankfurter:

We had a similar problem (Inaudible) with regards to immigration services relying on the statement by Senator McCarthy that membership — for purpose of the deportation made was immigration one of the other, I ought to remember but I don’t, that it — it must — there must be activity behind it.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Am I right?

J. Lee Rankin:

That’s right.

Now, I — I didn’t answer yet the question that —

Felix Frankfurter:

In all events, the problem put by my Brother Harlan is in the realm of the scope of statutory construction, is it not?

J. Lee Rankin:

Yes.

And I — I was going to —

Felix Frankfurter:

And in this case, this — this is not that case, is it?

J. Lee Rankin:

I was going to turn to that next.

It seems to me that —

Harold Burton:

Before — before —

J. Lee Rankin:

Yes.

Harold Burton:

— you leave that on, is — is it — it’s a previous question in answer to Mr. Justice Harlan, is it for that reason that you read the intent to this membership clause?

J. Lee Rankin:

No.

We think that that — the intent should be read in as a matter of mens rea and the usual interpretation of criminal statutes and find it there and —

Harold Burton:

I understood you to say that so far as intent was concerned, that there must be an intent to carry out the purposes of — of the Party.

J. Lee Rankin:

That’s right.

Harold Burton:

But now if the member is purely (Inaudible) member such as (Inaudible) would it be because the intent was not — he could not read the intent into his membership that he would not be liable or might not be?

J. Lee Rankin:

Well, it might be several factors.

That might be one of them.

The —

But if he — if he had intent, then would he necessarily be or would he, in your view, be necessarily be covered by the membership clause?

J. Lee Rankin:

Not necessarily because he might not comply with the requirements of the Constitution of being an active member in trying to further the purposes of the Party.

He might intend it do it wholly, and I think that was the question that Mr. Justice Harlan —

But bearing in mind that this statute is not in terms leveled against the Communist Party but is in the level in terms against subversive organizations, I mean, organizations believing in enforcing violence, there might well be organizations that don’t have these requirements of these bylaws that don’t insist on active membership.

Yet, I take it you would say that as a matter of construction, the statute is limited to active membership even though the bylaws of another type of organization didn’t have these provisions that the Communist Party mentioned.

J. Lee Rankin:

Yes.

That was the next —

So you read into the statute active membership in effect.

J. Lee Rankin:

Yes.

J. Lee Rankin:

We do that in — in the way we think the Court did in the Dennis case in examining the constitutional question in which we think the Court dealt with the problem and said Congress covered this particular type of crime.

Now, how far can the Congress reach constitutionally in limiting free speech in dealing with this particular situation?

And is the threat sufficient weighed against the constitutional limitation to permit Congress to reach this far?

And we then say that only for the purpose, not as a component part of the crime, but for determining the — the limitations regarding the constitutional limitations, that we consider active as being an important portion.

Of course, he would have to satisfy the organizational requirements.

I’d like to briefly call attention to one more matter and that is the testimony in regard to the witness’ statements as to when he expected this revolution to occur.

And I — we definitely disagree with counsel’s statement it was any 20 years hence.

I call attention to the statement of the testimony on page 16 of our brief and 41 of the record in which it was stated that the petitioner predicted to Klans when the revolution would take place.

In the following language, he commented that in July of 1917, the Czar had driven the Communist Party of Russia underground and had outlawed them.

He said that the very next October, the Communist Party, the Bolsheviks had managed to bring about the revolution.

Scales said he saw a perfect analogy here in this country.

He said that as soon as the capitalists drive us underground, there will be a revolution.

He said that if the depression came along, that would accelerate it still further and would make the job easier.

Now, the jury had before it, the fact that the petitioner himself told the witnesses that he had gone underground, so the underground movement had occurred.

And this is when he predicted that the revolution would occur and it seems to me it shows his idea of the immanency of a threat of his action.

Earl Warren:

General Taylor.

Telford Taylor:

Mr. Chief Justice, the Marshal tells me I have three minutes left.

I believe the argument on the statutory point on 4 (f) has been fairly joined and pretty fully explored.

And I would like to spend my three minutes —

Felix Frankfurter:

Spend one-half minute on 17, what is it?

The — the Section 17 on which — which is what the basis of the Government’s argument.

Telford Taylor:

Section 17?

Felix Frankfurter:

That’s — that’s the no addition and modification.

Telford Taylor:

Oh, well, my — my statement on that is — is in my brief and it’s — it’s my feeling that that is a general provision which is frequently in long and complicated statutes and which must necessarily give way to a special provision inserted, obviously, for a special purpose.

Felix Frankfurter:

There is a general provision (Inaudible) in the United States Code.

Telford Taylor:

There is.

Felix Frankfurter:

Yes.

Telford Taylor:

I would like to make two observations on the constitutional point arising out of the colloquy between the bench and the Solicitor General.

Yesterday, Justice Harlan asked about the instructions given to the jury with respect to these added ingredients which may or may not be read into the statute.

I might say that the charge itself is to be found in the record here, page 107 to 16, but I think the answer to Justice Harlan’s question is as follows.

Telford Taylor:

That on the element of intent, which the Solicitor General wishes to read them, instructions were very clearly given that the jury must find intent.

There is no doubt about that.

But it is equally beyond doubt that no instructions were given on the added notion of the acts of membership much less where any instructions given on the idea that the Party must be a sort of quasi-conspiratorial body which is so much the basis of the Court of Appeals decision below.

Now, Justice Minton asked the question along the same line, which was whether for a conviction here, there wouldn’t have to be some kind of advocacy.

Well, it is quite clear, I believe, Justice Minton, that — that there is no such requirement of statutes.

There is no such charge in the indictment.

And there is no such instruction to the jury, that is the — the conviction here must stand on the basis where the element of personal advocacy is entirely absent and it must stand or fall on that ground.

Now, my other observation relates to the colloquy between the Solicitor General and Justice Frankfurter, in which Justice Frankfurter mentioned Bryant against Zimmerman, a case involving the Ku Klux Klan, and I thought with the suggestion perhaps that case was governing or relevant to the constitutional problem here.

I do not, with all respect, believe it is.

I have refreshed my recollection about the case this morning.

There is no problem of advocacy involved there and indeed, it was not a prohibitory statute.

That was a New York statute which related to societies bound by oaths.

It is a lineal descendant of old British statutes directed to the same end, which are referred to in my brief.

And there has always been a policy against those because such societies tend to punish their own members and oust the Court’s jurisdiction varies to the factors like that.

It was for that reason that they require registration like the Internal Security Act.

It was not a prohibitory statute.

In Whitney against California, I think quite clearly, the concurring justices regarded the statute such as this one as raising an acute problem of both assembly and free speech.

Thank you.