Scales v. United States – Oral Reargument – October 10, 1960 (Part 1)

Media for Scales v. United States

Audio Transcription for Oral Argument – April 29, 1959 (Part 1) in Scales v. United States
Audio Transcription for Oral Argument – April 29, 1959 (Part 2) in Scales v. United States
Audio Transcription for Oral Reargument – October 10, 1960 (Part 2) in Scales v. United States

Audio Transcription for Oral Reargument – October 10, 1960 (Part 1) in Scales v. United States

Telford Taylor:

This case coming up from the Fourth Circuit is here on reargument under the Court’s order of June 29th, 1959.

In that order, counsel were asked to address themselves to a series of questions specified therein, and then both parties have now done this by filing supplemental briefs.

I should add that in both cases, both the Government’s brief and the petitioner’s brief are directed and pointed specifically to those questions put by the Court and they are, therefore, not intended to replace the briefs that were filed prior to the initial argument of 1958 term.

The Government, however, has reprinted its original brief and bound it with the supplemental, petitioner, being less affluent, has been unable to do that and, therefore, the courts still has our brief and reply brief from the 1958 term and our supplemental brief from the 1959 term and reply brief filed last week.

Now Your Honors, the questions that are stated in that order of June 29th all go to the validity of the indictment, both in the constitutional and statutory sense.

The Court will recall that when this case was on argument in the 1958 term that there was considerable discussion of other issues, specifically, the sufficiency of the evidence and the fairness of the trial.

The Court’s order of June 29th, as we read it, does not exclude those — all the matters from the further discussion.

I doubt the time will permit me this morning to go back to those but we would like to reiterate our belief that they are very substantial.

We have dealt with one or two of them in the supplemental brief.

And if time permits, I will say a few more words on that score.

However, we do believe that the validity of the indictment itself should now be passed upon, and accordingly, I will proceed directly to the questions that are posed in the Court’s order for reargument.

That order incidentally, if the Court has occasion to refer to it, is set out in Appendix A of our supplemental brief on reargument.

The first four questions relate to constitutionality and the fifth to the statutory sufficiency of the indictments.

And with the Court’s permission, I would like to deal with the last question first.

I do that because it is quite separate because it can be dealt with more briefly and because, if our view is correct, there is a statutory bar to this prosecution and that would be finally dispositive to the case without touching the constitutional issues.

And this statutory question can be stated very simply, and that is, whether the statutory bar is coextensive with the statutory crime known as the membership clause.

Might I also interpolate at this point that the relevant statutes were set forth in our brief filed in the 1958 term.

As a matter of convenience, we’ve also put the — the most closely involved statutes, the Smith Act and the pertinent sections of the Internal Security Act in the back of our brief on reargument.

The Court will recall from the prior arguments that the crime charged here under the membership clause is becoming a member or an affiliate of a group or society of persons that advocate force to overthrow its governments.

And the statutory bar that raises the question under the Internal Security Act, Section 4 (f), provides that neither the holding of office nor membership in any Communist organization by any person shall constitute a violation — constitute per se a violation of either subsections (a) or (c) of that section itself of the Internal Security Act, or of any other criminal statutes.

Therefore, by its terms, it applies to all of the criminal statutes including the Smith Act.

The question is whether that bar is coextensive with the membership clause that I have read to before.

Government says it is not. Government says it is not and that Section 4 (f), with that bar in it, should be read as if it said neither the holding of office nor membership in any Communist organization without knowledge of its advocacy of violent overthrow shall constitute a violation of this or any other criminal statutes.

Of course, 4 (f) doesn’t say that and the Government’s construction must therefore be derived by inference from the words “per se” constitute per se a violation.

Now, the Court often and properly reminds counsel before it that when one approaches a question of statutory construction, the first place to look is that the language of the statute itself before entering into the realms of legislative history.

And if we do that, one must first take note of the fact that the Government’s principle argument here throughout has been that Section 4 (f), with that statutory bar, relates only to what has been variously described as mere membership, naked membership, membership without more.

Those descriptive phrases occur throughout the Government’s briefs.

But if we look at the language of 4 (f) itself, we see that that construction is impossible under the — on the face of the statute because the face of the statute extends that bar not only to membership but to the holding of office.

And that is certainly something more than mere or naked membership, whatever one is to infer from those expressions.

I suppose that (Inaudible)

Telford Taylor:

I beg your pardon, Justice.

Naked membership (Inaudible)

Telford Taylor:

Well, I suppose even that must be more than — more than naked membership, Justice Harlan.

(Inaudible)

Telford Taylor:

There are two different concepts and obviously, the officership connotes things that membership alone does not, it seems to me.

It would seem to me that with the word — the hold it words, the holding of office in there, one must conclude that the bar extends to membership accompanied by the normal attributes of office holding whatever those maybe.

And I certainly think also that that suggests some familiarity with the purposes of the organization which offices held.

Felix Frankfurter:

Are you suggesting that officership has turned by something, what was your phrase, the usual components?

Telford Taylor:

The usual — the customary attributes of office holding.

Felix Frankfurter:

I don’t see —

Telford Taylor:

I didn’t say necessarily, Justice Frankfurter —

Felix Frankfurter:

Yes.

Telford Taylor:

— that could always be rebutted.

Felix Frankfurter:

What I want to know is that a membership doesn’t imply from the usual sense of it.

Telford Taylor:

Membership also implies from attribute, yes.

But I should suppose it implies less attributes than office holding because office holding implies certain things about activity, familiarity etcetera, etcetera.

And —

Tom C. Clark:

Therefore, (Inaudible) bound here.

That would (Inaudible) incurred upon (Inaudible).

There have to be some compelling (Inaudible).

Telford Taylor:

There is no doubt about that, Justice Clark, no doubt at all.

The registration is to be made in the first instance by the officers of the organization and if they do not do it or do it incompletely, then members are bound to come in and give their own names.

But this seems to me to detract nothing from the normal implications of the holding of office.

Tom C. Clark:

(Inaudible)

Telford Taylor:

They’d have to do it through the officers I suppose.

Tom C. Clark:

(Inaudible)

Telford Taylor:

I think — I think, Justice Clark, the — the organization has to do it and it would do it through its officers.

There’s no way they can’t.

Felix Frankfurter:

They might do it through their lawyers.

Telford Taylor:

And if they don’t —

Felix Frankfurter:

They might do it through their lawyers.

Telford Taylor:

Yes, but I suppose it must be —

Felix Frankfurter:

(Inaudible) file documents (Inaudible)

Telford Taylor:

It must be done in the name of somebody.

Felix Frankfurter:

It would be (Voice Overlap) —

Telford Taylor:

It must be done on the name of somebody the counsel will be representing someone.

Felix Frankfurter:

— the — the organization.

Tom C. Clark:

That itself (Inaudible)

Telford Taylor:

And if the officers failed to file, then members, in turn, have an obligation to file their names so there is —

Tom C. Clark:

(Inaudible) that officer would comply with (Inaudible).

Telford Taylor:

It is certainly clear the Congress envisage that officers would likely be filing and they wish to extend this bar not only to the attributes of membership but the attributes of office holding.

The purpose of the section is something that I plan to come to in a minute when we come to legislative history.

But dealing with the face of the statute itself, which is we’ve been repeatedly obliged, is the first place to turn.

The normal implications of a holding of office seem to me to include the measure of activity and the measure of knowledge about the organization.

And indeed, the Government has consented that vigorously in this very case.

They suggested that the fact that the petitioner held office in the party is itself a strong evidence of his knowledge of the party’s unlawful aims.

And within the statute itself, there is further implication, may it please the Court.

The — the rest of the statute is set out in the brief of the petitioner in Number 12, which is to be heard later this week.

And Section 2 of the Internal Security Act contains various recitals and findings by Congress about the Communist Party indicating clearly enough that the Congress believed the Communist Party to be an organization that advocates violent overthrow.

It says so in so many words in paragraphs 8 and 13 of Section 2.

And then again, and it says in that same section, the Communist Party members are rigidly disciplined and carefully indoctrinated.

It seems to me incredible that Congress after writing that into Section 2 and writing Communist officers under Section 4 would have intended to mean only Communist officers who do not know what they have been presumably indoctrinated to know.

We’re not dealing here with an evidentiary question as to whether office holding establishes knowledge or anything else.

We are dealing with the indicia of congressional intent.

And if Congress speaking in Section 2 in this thing about the party, about membership they are in, it would seem to be a — an almost unavoidable inference, that when they said the office holding, they weren’t thinking about what Justice Harlan described as naked office holding but office holding with the normal things one would associate with office holding.

And I don’t think one normally assumes that an officeholder is — is ignorant, inactive, or naked.

This — these are the normal attributes of office holding and if one is looking for congressional intent, this, I think, is what one would see in that phrase.

Potter Stewart:

What meaning do you give to the phrase “per se” statute?

Telford Taylor:

The meaning that we give to phrase “per se”, Justice Stewart, is that this means that under the Internal Security Act or the Smith Act or any other Act, because the bar is general in the other criminal statute, the defendant must be charged with some conduct other than being an officer or member of the Communist Party.

Under the Smith Act, he would have to be charged with advocacy or distribution or organizing or conspiracy to do those things under the Internal Security Act in paragraphs 4 (a) and 4 (c) which are the two other criminal provisions specifically referred to in a statutory bar.

Telford Taylor:

Under (c), he would have had to receive or attempt to receive some document from some — some classified documents.

Under 4 (a), he would have had to commit some act other than, if it is an act, being a member or an officer which would tend to the establishment of a totalitarian dictatorship under foreign control.

This means that under any of those provisions or any other criminal statutes, there must be some conduct other than being an officer or member of the Communist Party.

And indeed, all those other provisions do describe other kinds — describe activities such as advocacy or getting documents which Congress has prescribed as criminal.

That is the meaning we give to per se. You could not, for example, indict someone under 4 (a) and say that he had committed an act favoring the establishment of a totalitarian dictatorship in that he was an officer of the Communist Party.

We have to say something more.

We have to charge him with some other conduct beyond that.

“Per se” means that the proof of office holding a membership is not a sufficient proof of conduct, something else must have been done.

Potter Stewart:

So you’re telling us that it’s really redundant that it’s simply restating the existing criminal statute.

Telford Taylor:

I think not, Justice Stewart, I think we’re telling you that it’s — that it’s not redundant.

Under the — under the Government’s interpretation here, if this bar is only a membership with knowledge — with — without knowledge, it is completely redundant because it bars nothing at all.

The membership clause itself specifically requires knowledge.

4 (a) and 4 (c) specifically require knowledge.

It’s a different kind of knowledge; it’s a different kind of crime that’s defined therein.

But all those provisions require knowledge.

And therefore, if you interpret the bar to apply only to membership without knowledge, it is no bar at all.

It would bar nothing that it could — could have been prosecuted in the absence of 4 (f).

This indeed seems to us one of the strongest arguments against the Government’s construction.

Felix Frankfurter:

It might be put in the abundance — out of an abundance of caution.

Telford Taylor:

I would have to say, Justice Frankfurter, super hyper abundance of caution.

If you have statutes that carefully say membership plus knowledge is criminal, if you have other statutes that say knowing receipt of documents, knowing commission of acts that would favor the establishment of a foreign dictatorship.

It seems to me very unlikely that Congress would go to all this trouble to enact this specific provision, which bars nothing because knowledge is specifically stated.

And another reason, if I may supplement that, if we now duel to congressional purpose, we’ve been dealing basically with the face of statute up to now and what one can derive from the — the statute in its terms.

But if we now look to the — the purpose of the statutes as very plainly shown in the legislative history, the kind of superabundance of caution that you suggest, Justice Frankfurter, I think would have accomplished nothing in furtherance of the congressional purpose.

Felix Frankfurter:

I’m suggesting this, the course of my suggestion is the theory which Congress began hopefully of the Subversive Activities Control Act, I think in this act, it shall be construed to authorize, require, etcetera, or in any way (Inaudible).

I get from that, I infer from that, that Congress showed us solicitude about this whole area.

Telford Taylor:

If they were showing a solicitude about this whole area, Justice Frankfurter, and in the course of that solicitude or in exploitation of it were undertaking to provide a statutory bar that would somehow bolster the provisions, the registration provisions.

An interpretation of this was only out of an abundance of precaution to protect against the prosecution membership without knowledge is directly contrary to the — to the thrust of that — of that inference.

Now, here, you have a situation where the Smith Act has been on the books for 10 years.

The membership clause had been barely used, though the original defendants in Dennis had been indicted under the membership clause but the indictments had been left sit there where they still are and there haven’t been the other great deal of use of the Smith Act itself.

Telford Taylor:

Congress was enacting a whole new statutory scheme to deal with the — the problems presented by the Communist Party and to some more organizations.

And the techniques and devices that they have used here involved primarily the idea of registration and publicity rather than prosecution.

There are to be sure some new criminal provisions in it but the basic framework of the new statute revolves around the registration.

We know from the legislative history and the Government doesn’t — doesn’t at all contest it.

That the main purpose of 4 (f) was to — was to bolster and prevent those registration provisions from being obstructed.

We know and the Government again doesn’t contest it that they had the Smith Act specifically in mind in enacting 4 (f), Judiciary Committee spoke specifically to membership clause.

Therefore, it’s plain enough that the purpose was to — to bolster registration by —

Felix Frankfurter:

It can’t be — that is in the older purpose because the second half of 4 (f) has nothing to do with bolstering if you are relieving from the —

Telford Taylor:

Well, the — the two sentences in 4 (f) both relate to the possible use of the registration, circumstance registration for criminal purposes later on.

It’s clear enough I think, Justice Frankfurter that — that whether this provision accomplishes its purpose, whether this sufficient bar is complicated —

Felix Frankfurter:

(Voice Overlap) —

Telford Taylor:

— and difficult, independent and different question.

And because there is question about that, the Government is suggesting that this should be construed very narrowly to this bar. But that question has been faced here before.

The very same argument was made in Adams against Maryland not very many years ago, where you had the congressional — the effort, the old effort by Congress to protect witnesses before congressional committees against the use of their testimony in subsequent criminal proceedings.

Felix Frankfurter:

Well, to me it’s clear that whoever does, they still know the history of that whole part of legislation (Inaudible).

Telford Taylor:

They may not haven known this.

Felix Frankfurter:

Well —

Telford Taylor:

They may not have known this.

Felix Frankfurter:

— what do you mean they didn’t know this.

Telford Taylor:

But because they didn’t — because they learned more about it in the course of it, Justice Frankfurter, they made the provisions very different, when it emerged than when it started.

They became aware of Counselman against Hitchcock and the fact that that second sentence was by no means enough.

They put in the first one because, Counselman against Hitchcock and all the rest of the doctrine that goes with it had been called the attention of the Court — of the — of Congress by — by John W. Davis.

And then there were various changes in that provisions that went through.

Now, to say that what has been done here in a plain effort to assist the constitutionality of the registration provisions, and I supposed to prevent their obstruction by pleas itself.

To say that Congress, in an effort to do that, wrote a bar that is no bar, granted a protection against something from which there was no risk to begin with, because there is no statute and was no statute that prescribes membership without knowledge, no such thing on the books, and it isn’t a matter of implication.

It’s written right in there.

Felix Frankfurter:

But you have to agree that the second sentence give the bar that is no bar.

Telford Taylor:

It seems to me that whether this is or it’s not a bar, it is the responsibility of —

Felix Frankfurter:

I’m not arguing your —

Telford Taylor:

— the counsel having that case.

Felix Frankfurter:

I’m not arguing your point.

I’m arguing — I’m suggesting — I’m addressing myself to the kind of awareness or knowledge or attention to Congress and the second sentence I think one can — one of the few things about which one can be automatic in this area to say the second sentence is no bar for what was intended to the bar.

Telford Taylor:

That’s why the first sentence came in.

Felix Frankfurter:

All right.

Telford Taylor:

That’s why the first sentence was added because the second one was —

Felix Frankfurter:

I don’t know whether that’s why.

Telford Taylor:

— ostentatiously insufficient, if you will — if I may put it that way.

It was so insufficient that there was need for more year and —

Felix Frankfurter:

Neither you nor I are attacking great credit of understanding to whatever interpretation was given to it.

Potter Stewart:

To be sure.

Telford Taylor:

Well, I think that — that this is — has pretty well covering what I wanted to say on that question, may it please the Court.

I would like to discuss again that I think one really needs going no further than the face of statutes.

You see that the Government’s position here is — is not sound.

One cannot speak of — of mere membership or a naked membership in dealing with statute that talks about office holding.

And if one then deals with office holding not in terms of what it necessarily proves, because I would concede immediately that the fact that you hold office doesn’t prove that you have knowledge or prove anything else in particular, but the implications to be drawn from Congress putting that phrase in there and what they probably intended by is quite another matter.

That must be viewed in the context of the rest of the statute.

It seems to me incredible that they would have — have met the holding of office without knowledge of the organization’s purposes when they wrote that in.

It doesn’t fit with the rest of statute and it doesn’t fit with the congressional purpose, because they were trying to write a bar that would assist and protect the registration provisions and if you construe this as the Government construed that they wrote no bar at all, nothing that bars any prosecution that brought without it.

Now, with the Court’s permission, I will pass to the other questions in the Court’s order.

The other four paragraphs of the Court’s order for reargument posed nine different questions with respect to constitutionality.

And it’s undeniable that most of these questions are posed by the case as it has developed here.

I should say at the outset that several of these questions arise from the Government’s decorative work on the statutes, the addition of new elements to be engrafted.

And it seems to us that the fact that the Government has been obliged by the pressure of the issue to argue based on — on the things to be added to the statutes is some indication of the purview of the case here.

These nine questions that the Court has posed, the parties had dealt with those in supplemental briefs.

I couldn’t possibly cover each of the nine in the time available anyhow, and I don’t want to weary the Court’s arbitration of what’s in the briefs.

I do want to address myself to several of them. But before doing that, I’d like to make a more general observation about the constitutional problem here because, I think, there’s some danger that if we deal with these nine questions into limited way, one will lose sight of what seems to me a more basic and non-technical factor here that underlines them all.

The Smith Act is in the nature — is in the nature of a sedition statute.

It, therefore, deals with what have been called “political crimes”, political crimes like treason and sedition.

In defining these crimes and in applying them when people have been prosecuted for the commission, both the legislatures and the courts, I think, had been aware that this is a very tricky evidentiary field, tricky field in an evidentiary sense.

And that, generally speaking, guilt for political crimes such as sedition and treason should be based on evidence of the accused actual conduct rather than on or primarily on the state of mind.

Telford Taylor:

Of course, this does not obviate the necessity for evidence about state of mind because acts which maybe quite innocent, done with one intent maybe quite guilty or maybe treasonable if done with another, same acts maybe guilty or innocent depending on the intent.

Nonetheless, that is evidence about intent coupled with and related to proof of specific conducts.

The — the wariness that courts and legislatures have felt about political crimes that rest too much in the mind is reflected in the formidable writ acts of treason that has been discussed in this Court’s opinion, the Cramer case and, by the way, Justice Jackson dealt this case.

The Smith Act and other statutes the Court has had to deal within recent years that are in this general field, have vexed and divided the Court because they raised these acute problems under the First Amendment.

Those that have been upheld have been statutes, which do proscribe seditious activities and utterances in one sort of another, not merely a state of mind.

Smith Act relates to advocacy, distribution of literature.

Taft-Hartley, filing the false affidavits, espionage acts to other kinds of conducts.

But now, when we come to membership clause, even if contrary to what we think is the teaching of the legislative history here, even if we do read in the additional element of intent, we are still left with a crime, which involves nothing but the circumstances of association plus state of mind.

It — and adding an attempt simply adds another subjective factor that what is already a very subjective crime.

Under the membership clause, the accused is not charged with committing or attempting or conspiring to commit any seditious act or utterance at all.

It’s the matter of association or state of mind.

And I think it is awareness of this weakness that has led the Government when this case was already three years old after first conviction to propose this requisite of activity which is referred to in question number three.

Felix Frankfurter:

Do you — do you synonymies state of mind and association?

Telford Taylor:

No, no, Justice Frankfurter, I think what I said was that the crime, as defined, it comes down to association plus subjective factors of state of mind, knowledge and if you add intent — intent.

Felix Frankfurter:

Is association also subjective?

Telford Taylor:

No, association is not subjective.

Neither is it — it neither is a specific charge of conduct.

It is merely a relation to something else.

Felix Frankfurter:

It’s not merely a state of mind.

Telford Taylor:

It is not advocacy —

Felix Frankfurter:

It’s not merely a state of mind.

Telford Taylor:

No, I didn’t mean to say it’s only state of mind.

Felix Frankfurter:

It’s not merely subjective.

Telford Taylor:

It’s not merely subjective.

Felix Frankfurter:

All right.

Telford Taylor:

The other factors are merely subjective and association still is not a charge of criminal conduct.

It’s charged with association with someone else’s criminal conduct.

Therefore, the crime —

Felix Frankfurter:

(Inaudible)

Telford Taylor:

— the elements of the crime are association plus state of mind.

Felix Frankfurter:

The old, the old, the funny old case of the irony, in association with (Inaudible) going to an association of conduct that either state of mind is normally subjective, don’t you think?

Telford Taylor:

The law has —

Felix Frankfurter:

It depends on what you associate with.

Telford Taylor:

— the law has dealt with associations in other terms Mr. Justice Frankfurter.

It has dealt with in terms of conspiracies and complicities.

These are the techniques by which the law has endeavored to isolate one is guilty relation to a crime.

Felix Frankfurter:

If you make law a principle.

Telford Taylor:

But here we have a relationship which is far more remote than the quest of the ones in the law such as conspiracy or complicity, and the only thing that is added to that association are subjective factors.

It is, I think, undeniable that the other cases, the other crimes that have come up in other cases here, have involved charges of specific conduct such as advocacy, organizing, distributing literature, filing false affidavits, trying to obstruct the drafts, somebody is doing something that they ought not to do.

Now, here, we have a much more remote thing and all I am saying this point for the moment is to indicate that awareness of this ephemeral quality in the crime as defining the membership clause is what has pushed the Government toward the interjection in this element of — of activity, to try to give the crime some more substance and concrete reality than it has in the — on the Congress to find it in.

Now, does the addition of this factor of activity help unconstitutionality?

If the Government proposed, reading into the clause, a requirement of some kind of activity in furtherance of the advocacy that the Smith Act condemns or in assistance of the advocacy that Smith Act condemns.

We would have a different situation here.

If a defendant were so charged with activity in aid of the advocacy of the unlawful advocacy, then he might be, in any event, guilty of complicity as a principal or an accomplice.

If he engaged in activity pursuant to some kind of an agreement with others that is charged or proved, then you will make out a case of conspiracy.

But, if I am at a loss to see, how a charge of activity that is not related to the thing the statute is getting at, which is the advocacy, shows any culpable connection.

Now, the Government answers that in their supplemental brief on reargument by saying that any activity indirectly supports and assists the unlawful advocacy, that even though the Communist Party member spends all of his time going around distributing copies of the Stockholm Peace Appeal or something on which opinion certainly might defer but is not guilty advocacy of any kinds.

That conduct of that kind of normal party activity promotes and indirectly supports the unlawful advocacy and that is the reason they say that to add this requirement of activity will sufficiently assist the Constitutionality of the courts.

It seems to us that this argument proves too much, that its acceptance would greatly large the possible bounds of criminal liability in this field, and would make very deepen roads on the constitutional guarantees.

Quite apart from those general observations about this argument, it seems to us that it — it applies squarely in the face of two decisions of this Court, one quite recent, those two decisions being the De Jonge case and the Yates case.

In the De Jonge case, after all, the — it was not disputed that the organization involved there was engaged in criminal advocacy. Maybe it was, maybe it wasn’t but on the appeal to this Court, that was assumed.

It was assumed that the organization was engaged in an unlawful advocacy, and it was charged against De Jonge that he assisted in the conduct of a Communist meeting, spoke at it, spoke at length.

What he said is set forth in length in the stipulation and it was charged that it could be made a crime to assist in the conduct of the meeting under the hospices of an organization engaging in an unlawful advocacy.

Certainly, it could have suggested well there that what De Jonge did indirectly supported the unlawful teachings of the Party.

Indeed, in that very case, it was charged that De Jonge had urged everybody to come to a meeting the next night in order to show defiance to the police and support the revolutionary activities of the Party.

He was not charged in the indictments.

Therefore, the Court said, as charged in the indictments, this is insufficient.

It seems to us the Yates case is — is equally cutting on — on this argument.

The Court there distinguished very carefully between those defendants against whom the Court thought the evidence was so insufficient that there should not even be opportunity for another trial and those that were sent back for another trial, which the Government never chose to proceed with.

And in distinguishing between those two subsequent defendants, certainly, it wasn’t on the ground of activity in general, and indeed those five defendants that were acquitted, were exceedingly active members of the Party.

Telford Taylor:

And the — the point goes even further than that, because in the case of the defendant Richmond, the Court specifically noted that there was evidence connecting Richmond with the other conspirators including conspirators who might have been engaged in the unlawful advocacy.

Richmond had been the editor of the Party newspaper on the west coast for a period of many years.

He was functionary of — of great importance in that sense.

The Court said his activity did not show anything but lawful and therefore, in — even though there was evidence of association with the other conspirators including those that might be guilty of unlawful advocacy, this was held not enough.

I think it might be helpful, in analyzing the constitutional problem at this point, to spend a minute on how the court below, which included eminent and distinguished judges like Judge Parker and others, how did they so easily come to the conclusion that this clause is constitutional.

Well, it — its scholarly sense is rather interesting.

In Judge Parker’s view ever since — before the Scales case, he had taken the position that association plus knowledge is the same thing as conspiracy.

And in his opinion after the first conviction in this case, he said in substance that this is nothing more or less than a charge of conspiracy to overthrow the government.

Of course, that view reduces the membership clause to redundancy, because if it’s nothing more or less than a charge of conspiracy to overthrow, we are really right back with the other portions of the Smith Act.

And it seems to me that he also overlooked the distinction between the conspiracy to overthrow and the conspiracy to advocate.

But more important than all of that is that Judge Parker’s particular view of this matter of conspiracy is a matter that’s been debated in the law institute for a number of years.

His position, which opened up the concept of conspiracy in his very broad way is one that is not wanted favor and that has been specifically rejected by the law institute.

The citations are in our reply brief filed earlier this week.

And I think that the Government’s defense of the membership clause leads into this same cul de sac.

The Government is now here in the position of defending this clause primarily on the basis of two elements, intent and activity, neither of which is specified in the statute, and one of which isn’t even charged in the indictment.

The development of their defense of this clause is, I think, insignificant.

The first membership indictments that were filed in 1948 do not charge specific intent.

That comes in in 1954 when the Scales and Noto and other indictments are quashed.

Then after the Scales case has come up once, three years later, the Government proposes the addition of the factor of activity.

Still, there seem to be problems, and therefore, we find in the Government’s brief these other efforts to — to invite the Court to hold the statute constitutional as applied in this case on the theory that this petitioner was high level, rigidly disciplined, and that there is proof to the Party is a deeply conspirational party.

Well, now, when we come to that point, it’s clear enough — the Government is right —

— question please.

Telford Taylor:

Pardon me.

You referred to Government’s earlier indictment.

Has there been any cases constituted without the presence of the element and intent or are you simply referring to indictments that have been filed and not to the —

Telford Taylor:

I’m simply referring to indictments that have been filed.

Those were the first indictments in 1948.

And to the best of my knowledge, they are still there in the files of the Southern District of New York and have never been pressed.

Nevertheless, those indictments, to my understanding, did not include intent.

The 1954 indictments added that and then comes activity in 1957 and —

Tom C. Clark:

(Inaudible)

Telford Taylor:

Oh, no, no.

No, Justice Clark.

When — when —

Tom C. Clark:

(Inaudible)

Telford Taylor:

1954 was an indictment in this case.

The 1948 indictment I was talking about was the one in the — in New York.

Tom C. Clark:

(Inaudible)

Telford Taylor:

That’s — that’s correct, just one in this case.

When we are back to this position of urging affirmance here or sustaining the statutes on the ground that the Party is deeply conspirational, then we have come right back to Judge Parker’s position that the Court has been asked primarily to uphold this as being the same thing as a charge of conspiracy.

Well, that position runs into the same conformities, statutory redundancy, ignoring the tradition on its conspiracy etcetera.

The Government’s presentation of — of the constitutionality issue, if I’m not being too irreverent, it reminds me a little bit of the — the cook who is standing over his stew on the stove and from time to time, he sips the stew to see if it’s seasoned enough, but it never seems to be quite strong though.

So after each sip, the government cook reaches for some other ingredient to throw in the pot to see if it will make it strong enough.

But now the last three ingredients have come in in the Government’s last brief.

The Court has now been invited, page 27 of their brief.

Even if they doubt that the statute might be constitutional in other applications to uphold it as applied to a dedicated fulltime proselytizing communist and hold it constitutional in that application.

Well, I don’t know whether the petitioner was or was not a proselytizing communist.

He certainly wasn’t charged with being and I recall evidence in the record that he received into the Party those gentlemen at the FBI sent him to be admitted to the Party, but there’s no evidence that he was a wide-scale recruiter.

I wouldn’t have thought that really had anything to do with the case at all.

But certainly, there’s no issue.

They never went to the jury about whether or not he’s a proselytizing communist fulltime.

Well, there’s no doubt.

In the record, it shows that he spent a good deal of time on Party activities, but I don’t know exactly what a fulltime Communist is if — if it means the same thing at elsewhere.

There’s nothing in the record to show that he was a fulltime Communist.

All of us spend our time a lot of different ways.

I sometimes will put to a doubt as to whether I’m a fulltime lawyer.

But how will that may be?

It seems to me that the Government now to invite a holding of — of constitutional application based on adjectives and limitations of this sort and it reduces the whole presentation to an absurdity.

I would like to say just a few more words on the — on the matter of activity, the third question stated in the Court’s order for reargument, because I do have a feeling that the Government is pending its main hoax of upholding the statute on — on the proposed addition of this factor.

Now, in the — in the Court’s order for reargument, several subsidiary questions are raised.

Telford Taylor:

It’s asked whether the statute — whether the — the membership clause will be valid without activity as a new element of the crime but as a constitutional overlaid standards, something like “clear and present danger”.

This was suggested by the Solicitor General in 1957.

I confess I have been unable to fathom this idea of the activity.

If it’s to be brought in the case at all, it should be brought in as a — as a constitutional standard like clear and present danger that doesn’t go to the jury.

Of course, there has been divided opinion about whether the clear and present danger issue should or should not be kept away from the jury but the reasons for doing it were pretty clearly set forth in the various opinions in the Dennis case.

We need to take account of a very wide area of factual and circumstantial data, the need for uniformity of outcome, and so forth, but the issue of activity is nothing like that.

If there is any proper issue of activity in this case, this is a matter that concerns the individual behavior of one man, the defendant.

It’s a kind of issue that juries traditionally deal with.

And if that issue can be taken from the jury, I should suppose that the question of whether the mails were used in fraud or any other factual issue could equally be taken away in violation of the constitutional guarantee of jury trial.

Would you help me out in a mechanical manner?

You referred to a government supplemental brief on the —

Telford Taylor:

Yes.

— argument.

All I’ve got is this brief — brief of the United Stated on reargument.

Telford Taylor:

Yes, Justice Harlan.

Is there another one?

Telford Taylor:

Well, as I indicated at the outset, the first part is the blue sheet.

Oh, I realize that.

Telford Taylor:

That’s the supplemental brief.

But there’s no other document other than this one?

Telford Taylor:

No, that’s the only document.

I have some recollection that there was.

Telford Taylor:

Not that I know of.

I — I hope I will soon find it if there is but the only that’s — that I have —

I thought the trial was little —

Telford Taylor:

— been given access to (Voice Overlap) —

(Voice Overlap)

Telford Taylor:

Finally, on this matter of the constitutional standard, if the activity is to be so regarded, my bewilderment is — is completed by the fact that — that the trial judge here may know such finding at the Government’s request.

This matter of activity went to the jury.

So charged by the judge and went to the jury and jury questioned.

Telford Taylor:

And so if this is a thing which like clear and present danger should have been found by the — by the trial court, it never was.

Therefore, it seems to me, if we’re going to look to activity at all, the — the side of this which must be taken more seriously is the idea of activity as an element of the crime.

Now, even there, I think some clarification is needed.

As Justice Frankfurter indicated earlier in the argument, proof of membership itself involves some kind of indicia of membership.

This may involve some proof of activity.

The Court has dealt with the question of what membership is as used in these statutes.

It isn’t necessarily always the same thing.

The nature of the statute may affect it.

But in Galvan against Press, the Court mentioned such things as occasional attendance of meetings, payment dues, and so forth.

Therefore, if the Government meant only that proof of membership may entail proof of some activity, I suppose nobody could have any quarrel with that.

But if they meant only that, then it would not import any new element to the statute.

It would not do what they appear to hope would be accomplished, that is, inject a new element in the strength of its constitutionality.

And therefore, elsewhere and indeed, in the — in the Court’s charge with the jury, it’s quite clear that what they really mean is a requirement of a greater degree of activity than would be necessary to prove membership.

This is an additional element or additional proof.

And their last brief, although as I say in some spots, speaks about an interpretation of the word “membership”; in other places, it’s quite clear that they mean proof of something more than is necessary to show membership.

But they argue it in both bases therein.

Telford Taylor:

I believe that is true.

But — unless —

The meat of your argument that this isn’t any indictment.

They say it can be treated as an ingredient of membership.

Telford Taylor:

I think that is why they —

And your answer to that is that if that’s the case, then it isn’t enough activity to make the constitutional difference.

Telford Taylor:

In that event, it’s no more activity than any member would — would engage in.

Would you elaborate that?

I don’t quite understand why that’s so.

Why that’s necessarily — why that’s necessary an answer to that?

Telford Taylor:

Well, it seems to me there had been two or three questions there, Justice Harlan.

I believe that the reason they put for the idea of constitutional standard was in order to meet our argument about the indictment.

All right.

I’ve dealt with the constitutional standard part of it already. Now, we come to the thing as an element of proof.

Telford Taylor:

It can be one or two things.

It can be how much activity do you need to prove to establish membership or are we construing the statutes that when it says “membership”, it means especially active membership, membership more active than is necessary merely to be a member.

I think they mean the latter.

They — they say in several places, the new element of proof, I think the Court’s question number three was phrased in terms of an additional element of defense.

Perhaps, an illustration would be helpful here.

Suppose you have a statute that punishes displaying a red flag in public.

How red does the flag have to be?

How big does it have to be?

How public must a display be?

Well, it obviously must be read enough to be unmistakably read and it’s got to be big enough so it’s plainly a flag and not a handkerchief.

And it’s got to be displayed where the public can get access to it.

But it doesn’t have to be any particular shade of red or any special size.

But the Government’s apportion of the statute, you would, as if, you would say that to display a blood red flag more than 10 feet square by brandishing on the capital steps is what the statute really means.

This means membership accompanied by a degree of activity more than enough to prove membership, especially active membership.

Potter Stewart:

How about the trial court’s instructions in this specific case —

Telford Taylor:

In this specific case —

Potter Stewart:

— with respect to activity?

Telford Taylor:

Yes.

Justice Stewart, those were to be found in the record at I think page 841.

Potter Stewart:

Particularly, I wondered whether you misput the trial court as adding this as — as something additional to membership or as being a —

Telford Taylor:

That is the way it appears to me.

Potter Stewart:

— an indicia of membership.

Telford Taylor:

The — the entire paragraph is to be found in the record at page 841.

And if the Court says the defendant admits that he was a member of the Party — for the membership to be criminal, however, it is not sufficient to be simply a member.

It must be more than nominal, passive, inactive, or technical.

In determining whether he was active or inactive, consider how much of his time and efforts he devoted for it.

To be active, he must have devoted all or a substantial part of his time to Party activities.

Well, it seems to me they’re pretty clear that that is intended to mean more activity than would be necessary to merely to prove membership.

I get the same attempts from the Government’s brief, last brief, supplemental brief, Justice Harlan, at pages 24 and 25.

If all that were involved were bare membership or bare membership plus some attendance of Party meetings.

Telford Taylor:

And then further down on page 25, they answered to the first branch of the Court’s question.

It is that adding the element of activity, adding the element of activity does aid.

Of course, it’s possible that the Court gave an over abundant charge.

Telford Taylor:

That is possible.

That is possible but unless, unless activity is being added here as something more than just that degree of proof which is necessary to establish membership as commonly understood, then I can’t see that anything is being accomplished in the way of the Government’s purpose of bolstering the statute by a new element.

Then we’re right back where we were before, proof of — of membership with the attributes that would normally go with membership, attendance at some meetings, payments to some dues, etcetera.

Is that degree of activity a thing which brings the defendant closer to the forbidden advocacy in the Smith Act?

I hardly see how it can be under the decision that I’ve indicated.

If we, however, regarded as an additional element, then we run into all these other problems that I have indicated before.

It’s not charged in the indictments.

We run at the problems of vagueness, I think.

What standard do we relate to when we’re looking for this question of activity?

And anyhow, it seems to me impossible as a matter of statutory construction.

It seems to me impossible enough with — with the intent problem in the light of the legislative history.

But if we’re going to — to build one thing after another into the statutes, this is entirely contrary to the approach the Court has normally taken towards the statutes.

May it please the Court, I said at the outset that I would have like to spend some time on the other issues not covered in the order of reargument.

I see as the bulk of my time has expired and with the Court’s permission, I would like to reserve the balance for rebuttal.

Earl Warren:

You may.

Mr. Davis.

John F . Davis:

Mr. Chief Justice, if the Court please.

I shall pitch my argument on the assumption that the opinion of this — that the decision in United States against Dennis is still good law.

The petitioners have not asked that it’d be overruled and in fact, this Court, in the Yates case much more recent than the Dennis case, has really affirmed the principles established in Dennis.

So I think that the earlier cases dealing with this type of statutes are to be read in the light of the Dennis case itself and that our problem is an application of those rules to the membership clause as such.

Since it seems unlikely I get any time for this conclusion of the argument, I’d like to spend just a minute or two at the beginning with respect to what the Government contends this record establishes.

The Yates case went off in — upon an appraisal of what the evidence prove and I think that in order to put this case in — in focus, it’s well to consider what the record in the case is, at least as — as we view it.

Felix Frankfurter:

I hope you begin with the indictment.

John F . Davis:

The indictment, of course — the indictment charges that Scales was a member of the Communist Party which was an organization which advocated overthrow of the Government of the United States by forcing violence, and that he had knowledge of the purpose of the Party and that he intended to carry it out, intended the best purpose should be carried out as promptly as possible.

To one — to one count of indictment, it deals with membership and only membership. It doesn’t allege conspiracy.

And it doesn’t allege that he — that he himself has advocated that.

It charges that he was a member of a party with knowledge and with intent.

John F . Davis:

Now, the Court, in its instructions to the jury, because we have to take the evidence in the light of the instructions, the Court, in its instructions to the jury, had, for its guidance, this Court’s opinion in Yates.

And so it was very careful to instruct the jury that was necessary for the Government to prove in proving advocacy, not only persuasion but had to prove that the Communist Party was engaging in inciting to action to carry out this aim.

And it was in the light of these instructions that the jury found the — the defendant guilty.

Now, what was the evidence on — on the advocacy of the Communist Party?

Well, the bulk of the evidence, with respect to the Party, not Scales’ participation in it, the bulk of the evidence came from eight witnesses who had — who were eyewitness — eyewitnesses of the official Communist schools who had attended these schools and sat and heard what was advocated to them.

And these schools took place not in one part of the country but all over the country.

They were in New York and they were in St. Louis, in Chicago, in Washington and in California.

And these eight witnesses testified as to what was taught in the Communist school.

And they were specifically on with respect to the — the — whether or not the advocacy dealt with overthrow by force and violence.

And everyone of these schools — in everyone of these schools, this was the — was the message which was taught.

The jury had this before them and the jury decided at this point as been proved.

Then the question is was this merely discussion, was this merely persuasion or does this amount to incitement to action?

Here again, the evidence in all of the school and in private conversations too is explicit.

The students were told that theory without action is nothing.

They were told about — they were — they were encouraged, they were instructed to take place, take pride in concentrated activity in industries which were important to the nation.

They would — in one school, they would require to take an oath at the conclusion of the school that they would act to carry out the — the aims of the Party.

They were instructed to take — undertake details in connection with the underground, details in connection with communications, shelter, publication and the — the details of carrying on the — the Party’s duties underground.

In one of the schools, they were instructed with respect to methods of violence, how to use a — a pencil as dagger.

In other, it wasn’t in the school but the defendant himself in — in instructing one of the witnesses suggested that he attempt to avoid the draft by — by pretending that he couldn’t pass the intelligence examination.

The — the record is replete with instances which show that this teaching wasn’t a study group of the Communist manifesto, of the average Communist classics.

These students in these schools were being taught specific action which they should take in order to prepare the — the Party to carry out its — its avowed aims.

Now, the third element in proof is to tie the petitioner himself into these pictures.

Did he know about the Communist thing?

If he did know about them, did he intend that they should be carried out?

Now, the petitioner in this case was an open and avowed member of the Communist Party.

He was the chairman of the District for North and South Carolina for a long period of years.

And there is no — there is no dispute actually that he, for — for years performed the functions of the — the leader of the Communist Party in those two — in those two States.

He organized schools, he attended schools whether our eyewitness accounts of the teachings of the school is including force and violence.

He himself told one of the witnesses in the case that force and violence was the method to carry out the aims of the — of the Party.

He told that the witness listen in so many words.

John F . Davis:

There can be — the — the knowledge of the Communist aims and purposes is brought home to this particular petitioner in explicit testimony which the jury, under instructions, believed.

So the only question then is whether there was intent.

But all of the indicia of what goes on in the man’s mind would indicate that he did intend to carry out these purposes which he taught and which he instructed Clontz, Reavis, Childs, the other witnesses as to what they should do.

Unless he was — unless he was carrying on a — a double deceit by — he must have — must have intended the things which he taught over this long period of years.

Therefore, I think as far as the evidence in this case goes.

We don’t have anything like the problems that occurred in the Yates case.

The case was tried with the Yates case in mind, the instructions were good, and the evidence, it seems to me, certainly justified the Court the — the jury in making the findings which it did.

Therefore, we must turn to the questions of construction and questions of constitutionality.

And I shall go first, as Mr. Taylor’s did, to the question of Section 4 (f) in order to determine whether or not there was a modification — modification of the Smith Act through the Internal Security Act which, in effect, wrote membership in the Communist Party out of the Smith Act.

The language is, “Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of Section — subsection (a) or subsection (c) of this section or of any other criminal statute.”

In another section, in the Internal Security Act, Section 17 provides, “The foregoing provisions of this subchapter shall be construed as being in addition to and not in modification of existing criminal statutes.”

But taking 4 (f) itself, question is what affects could 4 (f) have upon the Smith — upon the membership clause of the Smith Act.

And I call that this statute is — is printed on the appendix to the petitioner’s main brief 2A and 3A.

And I call your attention to the fact that it first says that membership per se shall not be considered a crime under subsection (a) of this same Act.

I assume that (f) has the same effect on (a) and (c) that it does on the membership clause of the Smith Act.

It is intended that (f) should be read, in effect, as part of the Smith Act just as it was to be read in part of — part of (a) and (c).

Now, if the petitioner’s argument is sound, I would think he would have to argue that no longer can a Communist because of his Communist activities be proceeded against under section (a) of this section.

He would have to say that they wrote the Communist membership in the Communist Party, participation in the Communist Party out of section (a) and section (c) in the same that they — he would claim they wrote it out of the — the membership clause.

Yet, it seems perfectly apparent that Congress didn’t intend that you should no longer prosecute Communists under section (a).

All it meant was that you couldn’t prove a violation of section (a) by proving membership in the Communist Party.

And then meant equally, you may not prove violation of the membership clause by proving and stopping that just proving membership per se.

And our question really comes down then whether they meant what “per se” means, whether “per se” means —

You have to — wouldn’t you have to prove something more under (a) in mere membership?

John F . Davis:

Yes, you would.

Under the language of (a), you have to prove more than membership.

And they want — that they wanted to be sure that no one could attack —

I thought you are arguing that their construction is accepted, you have to read (a) out of the picture?

John F . Davis:

Well, they — if they’re going to read the Communist Party out of the membership clause as such, I would think they would have to read it out of section (a), something else has to be proved with the membership clause.

But there isn’t any membership provision in section (a).

John F . Davis:

No.

John F . Davis:

There isn’t a membership — there is — and we assert there isn’t a membership per se provision in the — in the membership clause.

Either, it’s membership with knowledge and intent.

But what I am suggesting is that he — that Mr. — that General Taylor would argue that there is, in effect a provision that you can no longer prove a Communist guilty of — guilty under the membership clause, because he says they wanted to — they wanted to protect the Internal Security Act.

I say that on the clarity of reasons — reasoning, he would have to say that you could no longer prove a Communist guilty under (a).

This is — this isn’t what Congress intended.

Congress intended that you shouldn’t be able to establish the crime in (a) or (c) or as far as that goes, you shouldn’t establish the time in the membership clause either by merely proving membership and stopping there. You have to do something more.

But they didn’t mean by that — that the membership clause was to be, in effect, repealed as to Communist Party members.

They merely meant that you are going to have to prove something more than membership per se in order to prove — in order to prove guilt just as they did with (a) and — (a) and (c).

Felix Frankfurter:

Are you saying that on one construction of 4 (f), the Government introduced any — I’ll use a fraction that you said, any active membership in order to establish association amounting to conspiracy in 4 (a).

Is that what you are saying?

John F . Davis:

That’s right.

They’ve just — they couldn’t — I think they couldn’t have before either.

But I mean it’s conceivable —

Felix Frankfurter:

(Inaudible) most of the time established for association, that’s why you establish a conspiracy.

All to action which is more dubious from which we incur that they are association.

John F . Davis:

They — they wanted to be sure that no one could claim in connection with the Internal Security Act that it was unconstitutional because you could prove a violation of (a) by coming in and proving membership.

And it’s conceivable that that argument would have been made, because the view of the nature of the Party and everything, membership might, itself, have been argued to constitute a violation of (a).

The Congress said you shall not be able to prove (a) or (c) on membership merely by stopping, by showing the man’s name is on the list and stopping there.

You’ve got to go ahead and prove knowledge and whatever other elements are required to the statute.

Felix Frankfurter:

You can never establish conspiracy without establishing association.

John F . Davis:

That is true.

That is — that is right.

Sometimes it is an agreement as in the ordinary conspiracy situation whereas they talk about agreement itself and sometimes, it can be broader from the term agreement.

It can be membership, we believe, as — and as Judge Parker believed.

The fact that they didn’t really intend to write Communist membership out of Smith Act is shown, I think, by the second sentence which proceeds to imply that in any further prosecutions under the Smith Act, you shall not be able to introduce an evidence as evidence against the defendant, the fact that he has — he’s been registered under the Internal Security Act.

It seems that it did — it’s written it out that these — they wouldn’t contemplated the use of the evidence thereafter in the criminal case.

Felix Frankfurter:

Is there any legislative annotations to Section 17, to Section 17?

John F . Davis:

No, I think that it was put in without this particular section in mind.

I think —

Felix Frankfurter:

I don’t — I don’t care whether this was a reference to this particular case, is there anything —

John F . Davis:

I — I —

Felix Frankfurter:

That’s a — that’s a saving clause, is there anything said about saving?

John F . Davis:

I — I don’t — I know of no legislative history with respect to 17.

Where is Section 17 printed in this case?

John F . Davis:

I don’t think that it’s printed in — in any of the papers before you.

How did the (Voice Overlap) —

Felix Frankfurter:

(Voice Overlap) by Mr. Taylor.

John F . Davis:

It’s printed in the petition in the — it’s printed in the petition in the Communist Party case but not printed in — it’s not printed in our brief.

We relied on —

Felix Frankfurter:

It’s in Mr. Taylor’s brief on page A40 — the Appendix A40.

John F . Davis:

In its supplemental brief.

Felix Frankfurter:

Well, do you have those or you want?

John F . Davis:

Yes.

Felix Frankfurter:

One side of this page.

John F . Davis:

Well, Mr. — General Taylor has three briefs which I’m —

Felix Frankfurter:

But I have — I had blissfully hoped that’s the only one for you. [Laughter]

It brings the whole act.

Anyhow, it brings Section 17.

It’s at A40.

John F . Davis:

I don’t find it within —

Felix Frankfurter:

A40.

I beg your pardon.

I’m sorry.

I can’t find it.

Felix Frankfurter:

My apologies to everybody.

It’s in the brief of counsel for petitioners of Communist Party.

Yes, it’s in the Communist Party case but I didn’t want to go to that pile of stuff.

Felix Frankfurter:

I will throw you the credit of blame, General Taylor.

John F . Davis:

I think it’s not printed in — in anything that I — I — the — the language is very simple and short.

It says, “The foregoing provisions of this subchapter shall be construed as being in addition to and not in modification of existing criminal statutes.”

Earl Warren:

Do you think that’s entirely negative that there is in 4 (f)?

John F . Davis:

No, I don’t think it’s entirely negative.

I think it’s an indication of what the congressional intent was.

But I — I — 72 — if you’ll —

Earl Warren:

You mean the first case?

John F . Davis:

No.

Now, we find it.

We printed it but not on the statute.

It’s at page 72 of the only brief which we have here.

It’s quoted at — as I say on page 70 —

I’ve got it in the next case (Voice Overlap) [Laughter].

Earl Warren:

What — but what — to what Act would they refer when they said, “or any other criminal act”?

Is there any other criminal statute if they did not refer to the Smith Act?

John F . Davis:

I — I know of — I think they had the Smith Act specifically in mind.

Earl Warren:

ut what — what provision of the Smith Act?

John F . Davis:

And they had the provision dealing with — probably, all the provisions of it including the advocacy provision, the conspiracy provision, which was then in, and the membership clause.

They were saying that none of the provisions, in effect, none of the provisions of the Smith Act can be established merely by approving membership per se.

Earl Warren:

But wouldn’t that — wouldn’t that modify the Smith Act?

John F . Davis:

Well, the Smith Act probably never — never said that, never intended that anyway.

The Smith Act, as far as — as conspiracy to advocate, had other elements as far as organizing to and as far as advocacy itself.

It had other elements in it.

But — so that I do not believe one — even before this was passed, one could’ve established guilt under the Smith Act by merely introducing evidence of — of membership.

Earl Warren:

Well, it’s your position then that Section 17 — no, we would say Section —

John F . Davis:

4 (f).

Earl Warren:

— 4 (f) applies to the Smith Act to this entirety but that in — it in no sense modifies because of — of Section 17.

John F . Davis:

That is — that is right.

It’s — it is —

Earl Warren:

But what is the meaning of the statute?

John F . Davis:

It’s the same as it applies to section (a) and (c) of the Internal — of 4 itself.

It means that in construing these sections and — and no one shall be able to claim that you can prove a violation by membership alone.

John F . Davis:

You shall have to go further in proving a violation of subsection (a) or (c) or the advocacy clause of the Smith Act or any of those.

You have to go further in proving them than merely introducing evidence as in membership.

And the reason they were doing that, it sounds silly if you — if you do it just in the blue, but the reason they were doing that was in order that no one could attack the statute which they were passing as proving — as establishing a crime.

They didn’t want anyone to be able to say, “You’re passing an Act which itself makes them confess to some other crimes.”

Earl Warren:

Is anything said by the congressmen who were in-charge to this legislation to bear that out or to bear that —

John F . Davis:

Yes.

Earl Warren:

— any contrary theory?

John F . Davis:

Yes.

The — the — there was — the letter from then Attorney General as well as — as other criticism of the Act on the ground that — by — by John W. Davis specifically, calling to their attention that they would trending on dangerous ground in requiring registration, because they were — they might be — it might be argued that they were requiring people to confess with the crime.

And in order to meet this, these — these sections were written into the — into the Act.

You’d have to say — to say that they are, with their purpose, —

John F . Davis:

I think you can still claim privilege against self-incrimination in the situation like this if — I mean if they haven’t —

I’m not arguing the merits (Inaudible) but so far as obviating a claim based on that to —

John F . Davis:

Well —

(Inaudible) statute, they didn’t —

John F . Davis:

They — there is still a claim that the —

— they didn’t do a very good job, are they?

John F . Davis:

There is still a claim that the Communist Control Act is unconstitutional because it requires — in closure.

Yeah.

John F . Davis:

Claims that would be (Inaudible)

Felix Frankfurter:

And it — and they might also inadvertently repeal (Inaudible).

John F . Davis:

That — that’s right.

It’s — that’s — that’s really the question.

I’m sure they didn’t intend to repeal the Smith Act, and the question is did they inadvertently do it?

Was — it is an inevitable result of this, whether they wanted to do it or not is the inevitable result of this to repeal the — the membership clause.

Oh, I suppose inadvertently, if you will, (Inaudible) attention to that.

John F . Davis:

If it repealed it by —

If it repealed.

John F . Davis:

(Inaudible) That’s right.

These are the criminal statutes and — and we must — we must read them as they are written.

Yes.

John F . Davis:

We can’t say that it’s — it’s too bad they made a mistake.

Earl Warren:

There was quite a difference, wasn’t there, between the — the way 4 (f) started than the way it ended?

John F . Davis:

Yes.

This was —

Earl Warren:

And wasn’t that due to a difference of opinion between the current — between the Senate and the House through its Judiciary Committee?

John F . Davis:

That is right.

Earl Warren:

And — and what was the — what was that the House advocated in order to bring about this — the present language?

Were they doing it —

John F . Davis:

If I — if I recollect —

Earl Warren:

Were they doing it for the raising the issue for the question of immunity to bring about immunity if there was a registration?

John F . Davis:

No, they — they weren’t — they weren’t intending to give anyone immunity from registration.

They were —

Earl Warren:

No, but in the event —

John F . Davis:

— intending that no one could avoid registration.

Earl Warren:

— in the event they did — in the event they did register, was there no intention or to grant an immunity?

John F . Davis:

There was a specific intention that the registration should not itself be used against them, that they — this could not be used in a criminal trial.

And there was, secondly, the suggestion that whether or not you use the registration that the fact of registration should not be used as proof but — of the — of the substantive crime.

Earl Warren:

What was the position of the Congressman Celler, then Chairman of the Judiciary Committee, do you recall?

John F . Davis:

We have reviewed that upon the (Inaudible) the reference to his own specific position on that.

Earl Warren:

Well, I — I don’t care of the reference.

I — I read it but I — that’s what I — I just wondered what — what you — what you thought and what do you have to say and what his purpose was and what effect of that on the — on the section as it now stands?

John F . Davis:

Well, I — I think that Mr. Celler would particularly concern with, in effect, to the whole idea of requiring a — the registration with respect to the — the Communist Party and the members thereof.

And he — he certainly didn’t want any crime to be proved, to be established through the facts which will require than the registration.

He wanted to make perfectly clear that — that the back of registration shouldn’t be enough to prove a crime under (a), (c) or the — or the membership clause of the Smith Act.

Earl Warren:

That became a purpose of Congress for passing 4 (f)?

John F . Davis:

Well, the — the final language came out of the Conference Committee, as I remember it, where they put in both the fact that they shouldn’t use the — shouldn’t use the evidence and the provision saying that it shouldn’t be — it — it shouldn’t be a crime by itself.

As I recollect it that came out of the conference between the Senate and the House itself.

But I’ll —

Earl Warren:

Well, I don’t want to say — I don’t say this was —

John F . Davis:

— check on that, Your Honor, and this — this problem would be up in the next case and I will give you a more specific answer to it on Mr. Celler’s statement in — in the Conference Committee, when it comes up in Noto which is the case immediately followed on that.

We come then to the questions of the construction of the membership clause itself and its constitutionality.

In these — with respect to these, we are referring to — specifically to the questions asked by the Court in its order setting the case down for reargument.

These questions are reprinted on pages 1 and 2 of the Government’s brief.

And the first question is whether the statutes can be sustained even if construed not to require either intent or activity.

Now, we had thought in view of the Court’s holding in the Dennis case that this question was not open to us, because we thought that it was pretty well decided by this Court in the Dennis case that intent should be read into these provisions of the Smith Act.

And in fact, I — I still believe that — that this is a proper construction of the — of the Smith Act.

But assuming for a moment that it’s impossible to read intent or activity, you know it, and we have to have the statutes just as — as membership in the Communist Party with knowledge of its illegal aims.

Is that — is it constitutional, is it constitutional under the First Amendment and the Fourteenth Amendment to punish such action?

Well, there’s — there’s certainly authority to support the fact that it is constitutional.

This Court in Bryant against Zimmerman, 278 United States 63 upheld the New York statutes, which punished membership in the Ku Klux Klan as such, felt that membership in an organization, an illegal organization with knowledge of that organization’s aim was, itself, punishable.

Whitney against California, 274 United States 357 involves a California statute, which punished organization and membership, and there was there a single count indictment alleging both.

So that in effect, in upholding that statute, the Supreme Court was upholding a statute with respect to ownership, I think, with respect to membership alone.

I think that Judge Parker’s statement in Frankfeld against the United States, one of the Smith Act cases, states my position about as well as it can be stated.

He says, “Membership in an organization renders aid and encouragement to the organization, and when membership is accepted or retained with knowledge that the organization is engaged in an unlawful purpose, the one accepting or retaining membership with such knowledge makes himself a party to the unlawful enterprise in which he is engaged.”

In other words, membership is an indirect way of carrying on the advocacy which the Party carries on.

By being a member, by supporting the organization, by lending one’s — one’s moral support or whatever other supports involved in membership to an organization with these purposes is making a contribution to the purposes of the organization.

Remembering, of course, that it must be done with knowledge of the aims of the organization, then it should be unnecessary to prove intent because the — the intent almost follows the matter of — of course that whether or not it does, there is this aid and encouragement to the advocacy whether intent is present or is not present.

Now, the second question is whether or not the statute construed to require intent, but presumably not activity, whether with — when you add the element of intent, you aid in — in upholding the constitutionality of the act.

Well, I may say that Judge Hand in the Dennis case, and in this Court’s opinion in Dennis case, apparently felt that reading intent into this — into this statute does aid in upholding the constitutionality of the act, because in both of this — in both of this opinions, both Judge Hand in the Second Circuit and in this Court’s opinion in the Dennis case, it was felt that intent was a very important element, and that reading the — and that it — that it aided in — in reaching the — the — in tying up the — the individual with the organization making the nexus clear so as to — so that one wouldn’t be punishing one man for something which an organization did.

And there was seemed to be a little difficulty reached by either Judge Hand who dealt with it in a page and a half in this Court that dealt with it just about as previous as a span in finding that Congress intended that intent was an element of this crime.

That was all in the context of the conspiracy case.

John F . Davis:

Conspiracy case, yes, the conspiracy to advocate or conspiracy to — to organize a — that — that is true.

It’s all in —

Yes.

John F . Davis:

— in the — in the conspiracy field.

But the organization — I think that they’re reading intent into organization as well as into conspiracy, because they were not dealing that was conspiracy to commit this crime of organizing, and I think intent is read into the organizing and — and as well as into the conspiracy case.

Now, with respect to the element that what should be called an element of activity.

I think we’ve reached this problem of activity because there was — there was a feeling that could Congress have possibly meant that if somebody’s name appeared on a list, Communist list, and no proof of anything else, could Congress possibly have meant that this person should be guilty of a crime?

As the Court in its instructions said, what if it’s merely passive membership, what if it’s negative.

John F . Davis:

There’s no — there’s no proof that he did anything.

And —

Charles E. Whittaker:

(Inaudible)

John F . Davis:

Well, the knowledge of purpose may well been reached through reading the classics discussions, it can be reached in any — in any noun or maybe an individual will have engaged in activities which have the same aims as the Communist Party and so he is aware of what Communist Party is engaged in.

And in one way or another, he has this knowledge as to what the Party is.

But — but the question which bothered us and why the activity came in to it is, what if he never — never did anything as a member?

Maybe he never even made a formal application for membership, maybe his name was put on the list.

He’s — he’s a member in name only but he does have the knowledge, can this be — can this be what Congress had in mind?

Felix Frankfurter:

Conscious speaking is proved rather than to content?

John F . Davis:

No, I —

Felix Frankfurter:

In other words, if — if you have to make out of things that a man is a member, is that a burden of proving membership given it’s the understanding of the Government?

John F . Davis:

That’s right.

Felix Frankfurter:

Now, suppose you say that you have an — spent a wonderful life out here on social literature that all the — got the first petition of the Communist manifestos, there are all the words in (Inaudible) student of that?

And suppose you register in the (Inaudible)

John F . Davis:

Quite properly, yes.

Felix Frankfurter:

Well, I will suppose you say more.

Suppose you have a — a heartfelt letter in which he asked to become an enrolled member, because he deeply believed the cause and wants to add his strength, the party’s member strength to the cause, is that (Inaudible) the jury?

John F . Davis:

And that depends on — on the definition of membership.

And we had felt that Congress did not intend by using the word “member” to mean just this — just that part.

We felt that Congress meant that he should take some action as a member.

Felix Frankfurter:

Suppose he says, “All I need was — whenever you need my help” —

John F . Davis:

And nobody ever comes.

Felix Frankfurter:

— a reserve officer, a reserve member, is that activity?

John F . Davis:

It comes closer to it but I’d be — never if he had actually never paid dues, never attended a meeting, his name is merely been on a — on a standby list —

Felix Frankfurter:

Suppose he paid dues?

John F . Davis:

Well, here is — there was some —

Felix Frankfurter:

Is that just a state of mind?

John F . Davis:

No, this is a very definite contribution to the — to the Party’s aim.

I mean that Communist Party needs money like any other organization, and this is a — a definite act contributing to its — to its aim.

And this –M

What you are saying, I —

John F . Davis:

— brings this closest to member —

— what you are saying, I take it is, is without the element activity of some kind, membership plus purpose adds up to little more than moral support, clearly whether moral support is constitutionally reachable?

John F . Davis:

That is right.

That’s what your position.

Felix Frankfurter:

But I suggest that that activity is a very ambiguous and dubious word.

Well, no.

John F . Davis:

This — this is so but in meeting these questions of membership before this Court has had read intent into them, I mean when we — when we read —

Felix Frankfurter:

Well, but you’re shifting now to — intent is one thing, but —

John F . Davis:

Well, I’m —

Felix Frankfurter:

— intent conveys one thought to me, activity conveyed some other thought to me.

John F . Davis:

Well, activity can — there are all degrees of activity and you can have some very difficult questions about how far you’d go but — if —

Felix Frankfurter:

I am merely rejecting this talismanic word.

John F . Davis:

Let me — let me give you an example of where — where we felt it would be unfortunate membership would — would result in punishment.

Take Thayer against Spratt, where these people had joined an organization which they thought, for some reason or another, would promote their aims.

Aims that the organization have changed without — they were foreigners, they were — they — I don’t know how many have spoke the language.

They were members, they were carried on the party roles, they have — they’ve purposely become members, but they had nothing to do with this new organization.

They weren’t active and they knew nothing about what was going on.

We felt that pure membership in this case maybe one would’ve done it on intent on that case too.

But in that, there was no — there was no way to tie them in and if you do have people who are performing acts for the thing, then — then you — you don’t have that — that difficulty of the connection between the organization and the individual.

Felix Frankfurter:

(Voice Overlap) in you case, it would be an easier case for you to discuss about the decision of this Court.

John F . Davis:

That is right.

Felix Frankfurter:

There was — activity means something outside of the mind from doing — from doing something, external to yourself.

That’s what activity is.

John F . Davis:

In that case, they talked about paying dues and attending meetings.

Felix Frankfurter:

Yes.

And we found that it wasn’t within the Deportation Act, because there wasn’t that use of the mind.

John F . Davis:

In — in the Rowoldt case, that’s right.

In Galvan against Press which was the — the case which Rowoldt interpreted, in Galvan against Press, then the question was whether or not he really did anything, whether he attended meeting, paid dues, or he knew wat the —

Felix Frankfurter:

In other words, activity so-called might be ambiguous, as you see.

Felix Frankfurter:

That brings you to intent.

On the other hand, (Inaudible) outside your mind by doing something, not just a union with your own mind.

John F . Davis:

I — I think that both activity and intent are necessary.

If you — if we have merely — merely intent, we — we get into more difficult questions under the Fourteenth Amendment of whether or not we are punishing this man for something that somebody else does.

If you don’t have any activity at all, the question is whether you’re not trying to punish a member not for what he has done but for what someone else has done.

And the old — the old cases with respect to constructive treason, a — a pretty strong that in this thought of field, you want to read the statutes so that person, you can bring home to him something which he himself has done.

Now, membership maybe in a sense an act, I mean certainly if a man files an application and it’s accepted and he acknowledged that he’s a member, that’s an act and we don’t really have any trouble about being an absent of an act, but Communist Party doesn’t come about through and lots of these organizations don’t come about through formal filing of applications and sending a membership.

So that Congress very reasonably could have intended that when it used the word “membership” that it’s meant membership in an active sense.

And I think that the Court won’t be going far afield in — in reaching such an interpretation certainly when — well, when it came to this — to the — the anticommunist oath in the labor field.

There, the question was, what did belief mean.

Congress had to — the Court had to determine what Congress meant when it used the word “belief in”.

And the Court had no difficulty in construing belief in as being adhering to and approving rather than just an abstract idea that they understood and — and gave their general approval to it.

So we feel that, as a matter of construction of the term “membership”, this Court may well find that Congress intended the word to mean active membership.

And that was that construction, the — the constitutionality of the act is — is considerably bolstered.

However, even if — even if we do not mix this as a matter of construction, it seems to us that it can be considered that in its application to this case, we can consider that here we are applying it to an active member of the Communist Party.

And that we need not concern ourselves in this case with how it may be applied in some other case.

This is what we mean by saying that if it is constitutional in its application to men like Scales, then we don’t — don’t need to consider whether it would be constitutional if it were applied to men like the aliens who were involved in — in the (Inaudible) case.

We don’t have that case before us.

And just as in the — in the clear and present danger doctrine, we consider whether or not the application of the statute is to a situation where there is a clear and present danger, and if so, uphold it.

So here, when it is applied to a situation where you have an active member, as Scales was, you need not consider what the situation would be if it were applied in some other context.

Felix Frankfurter:

You have to do something more Mr. David.

You can’t say that in this case to prove, to approve (Inaudible) one of the governing statutes as a party within its reach.

Court has to put in words, some standard (Inaudible), which must be applied by the District Judges in (Inaudible).

John F . Davis:

Yes.

Felix Frankfurter:

And then you say we’ll wait until every case comes up here and (Inaudible) is clearly up to his — up to his head, the Party work or any comes within it, and so we wait case by case not in determining some formulated criterion to the fact of the different cases, but we just take the cases at us.

We can’t do that, can we?

John F . Davis:

No, no.

It — it would — it would be done as — as we’ve done last term and in connection with the civil rights statutes where the application in that case was to voting officials in the state.

And although the statute itself wasn’t specifically limited to those voting officials, the Court said, “We’ll consider the constitutionality of this act in connection with its application as it is here rather than as so the Government was trying to enforce it with respect to — to some others.”

And this is — this is all that we are suggesting here that if it is impossible, and I do not know if it should be, but if it is impossible to reach this matter through interpretation, it can be reached through a matter of what a constitutional application of the statute would be, and this Court can announce what that application would be.

Earl Warren:

So the activity is a necessary ingredient.

Mr. Davis, but what is the standard of activity that would you inquire?

Certainly, it isn’t in the Act, is it?

John F . Davis:

No, it is not in the Act.

Earl Warren:

But what — what would be your definition of this — the standard?

John F . Davis:

This, I think, is merely a question — I — I mean it’s a questions of definition.

What is active in other words?

And my — my suggestion is that any affirmative, and I use the word “act”, I don’t’ know what else to use, any affirmative act which is made which he performs as a part — as — as a member, acquire member rather than as someone else, will sufficient to make him an active member.

Earl Warren:

I’ll get back to Justice Frankfurter’s question, paying of dues?

John F . Davis:

Paying of dues most certainly.

Earl Warren:

And that’s enough?

John F . Davis:

I would think paying of dues that — that would be an — being an active member.

It’s a very — it’s a very important function to pay dues.

Earl Warren:

And that would be all that was necessary to be proved in this case?

John F . Davis:

I would think that that is right.

I would think that would tie his own personal activity with the — with the Party then.

Earl Warren:

Attendance or the meeting?

John F . Davis:

Would also be sir.

Earl Warren:

And that — that’s regardless of whether the — the purpose of the meeting was for — for criminal purposes or innocent purposes as in De Jonge?

John F . Davis:

Well, that is true.

Yes.

Attendance of meeting or certainly continued attendance of meetings would — would be certainly activity, but the De Jonge case is — is a very different case.

There, the statute proscribed assisting and — and conducting meetings.

And that was — that was the statute which the man was indicted onto.

Earl Warren:

Didn’t he actually do that?

John F . Davis:

And he actually did that.

And it was held that there was an infringement of the First Amendment to — there was nothing illegal done in the meeting.

It was — the meeting was sponsored by — by a subversive organization.

Earl Warren:

True.

John F . Davis:

The meeting itself made no advocacy.

John F . Davis:

And he was — he was not a member.

He wasn’t accused of being a member at any rate.

Earl Warren:

It was admitted in the Court?

It was in the Court that —

John F . Davis:

He wasn’t — but he wasn’t indicted for being a member.

He was indicted for participating in a meeting —

Earl Warren:

This man — this man here —

John F . Davis:

— which was an innocent public meeting.

It was —

Earl Warren:

This — this man, Scales, has not been indicted for activity either.

John F . Davis:

Not unless —

Earl Warren:

We — we have to read that into the statute — into the statutes to know if it is.

John F . Davis:

Not unless you read membership as requiring activity.

Earl Warren:

Yes.

John F . Davis:

That’s right.

Hugo L. Black:

What about the activity?

You had added some quotes from the Communist cases and it’s regarding some (Inaudible).

John F . Davis:

I certainly think that this would not be activity within this — within —

Hugo L. Black:

Why?

John F . Davis:

Because this is not limited to — to members.

This doesn’t have anything to do with — with membership.

Hugo L. Black:

If he writes and says, “I am writing, because I’m a member of the Party and I want to put a program into the same.”

John F . Davis:

Well — well, even —

Hugo L. Black:

I am writing this on my typewriter and I want to (Inaudible).

John F . Davis:

But — but this is not acting as a member — I mean anybody — this is not an act which is peculiar to a member in other words.

Hugo L. Black:

Well, usually member is — somebody belong to the Democratic or Republican Parties, rather than to say I’m a good Democrat or good Republican, I want you go get ticket, writing a letter or distribute seculars, and the action, wasn’t it?

John F . Davis:

It can certainly be action but it’s not action which is characteristically limited to the members of the Party.

I mean if any — it’s something which anybody can do in — in this — in this field and which everybody — in which they will do regularly.

Felix Frankfurter:

You really covered it.

You mean to say a — a member in good standing or a — a recognized member of the Party goes out and (Inaudible) to the Communist picket where the Communist picket is allowed, isn’t he acting for the Party?

John F . Davis:

Well, not in the sense that I am suggesting because I am suggesting that these acts are acts which are peculiar to the — to the — to membership and to recommend people that they vote for a Communist candidate.

It’s — it’s —

What’s more peculiar to membership?

John F . Davis:

Well, this — this is common to — I mean to — to urge people to vote in one way or another, isn’t limited to —

Felix Frankfurter:

(Voice Overlap)

John F . Davis:

— to the person being a member of the Party.

I mean this is a discussion of a pubic issue on — if they felt — and the Communist — it’s very possible that many people urged election of the Communist candidates even though they were not members of the Party because they were members of the —

I didn’t —

John F . Davis:

— farm labor groups or something.

— is your — is your definition of activity that it has to be something that’s in the purview of illegal purposes of the organization?

John F . Davis:

No, no.

— I think it was to — to a certain degree.

John F . Davis:

No, no, not —

And I don’t see why the activity that Justice Black put you isn’t the activity that meets your requirement.

John F . Davis:

No, because — well, let me — let me suggest this.

There were five elections in which Communist candidates were actually nominated and voted and people were voted — voted for them.

Now, I don’t have — I did have but I don’t have in mind the number of votes but the number of votes for these Communist candidates was somewhat larger than the number of — members of the Party at that time.

In other words, if you take it from the end of — from the field of electioneering to the field of voting, you find that people supported these Communist candidates because they believe —

Felix Frankfurter:

There are protest votes.

It’s one thing for a man to cast a protest vote, it’s another thing for a man who is a functionary of the Party to get him to cast it.

John F . Davis:

Well —

Earl Warren:

We’ll recess now.