Scales v. United States

PETITIONER:Scales
RESPONDENT:United States
LOCATION:Illinois General Assembly

DOCKET NO.: 3
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 355 US 1 (1957)
ARGUED: Oct 10, 1956 / Oct 11, 1956
DECIDED: Oct 14, 1957

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

Facts of the case

Question

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

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

    Earl Warren:

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

    General Taylor.

    Telford Taylor:

    Mr. Chief Justice, members of the Court.

    This case comes up here from the Court of Appeals for the Fourth Circuit.

    It’s also a Smith Act case, but it is not a conspiracy case.

    And it comes up here under a provision of the Smith Act that has not hitherto then before this Court for review and consideration.

    Perhaps, the Court would like to look at it right at the outset and my brief in the appendix of page 48 sets forth the language of the Smith Act showing this clause and its context.

    The Court will recall that there are three basic paragraphs in the Smith Act, one prohibiting advocacy, one on the distribution of literature, and one on organizing groups.

    And the conspiracy cases that have hitherto come here have been for conspiracy to violate the first and third paragraphs on advocacy and organizing.

    The clause for this action that this case comes under is the last clause of the third paragraph.And eliminating the part about organizing, which is not relevant here.

    It reads, “Whoever becomes or is a member of or affiliates with any such society, group or assembly of persons, knowing the purposes thereof shall be fined, imprisoned and so forth.”

    And to such group refers back to the same groups that the other provisions of the Act is concerned, group of persons who advocate the overthrow of the Government by force or violence.

    In short, this clause prescribes being a member of a group, the members of which advocate violent overthrow with knowledge that that is the purpose.

    Now, Your Honors, this case involves some of the same questions that you have heard discussed in the preceding cases, questions such as the sufficiency of the evidence about the Communist Party, the sufficiency of the evidence about an individual’s connection with it.

    But the Court has heard considerable argument on these points.

    In the last two days, though not quite as much as I expected this morning when I came to Court, and for that reason it seems to me that it might be best for me to go immediately to the new questions in this case that are not presented in the prior cases because there are new constitutional and statutory problems arising here that I plan to focus my argument upon.

    There is the question of the constitutionality of this membership clause on its space and as applied in this case.

    The — to state very briefly, the question of constitutionality arises because this contains no prohibition of advocacy or incitement or organizing or conspiring, this is a prohibition of status plus state of mind.

    Now the Court may not reach that question.

    The Court may not reach it because there is a statutory question here too, which maybe governing and the Court may prefer to approach constitutional questions last and not first as has been said.

    And that question is whether the indictment here states an offense against the laws of the United States.

    It arises because in 1950, 10 years after the Smith Act was passed, Congress enacted the Internal Security Act of 1950 including Section 4 (f) of that Act which you will find in the Appendix to my brief at page 49.

    Section 4 (f) declares that neither the holding of office nor membership in any Communist organization, by any person, shall constitute per se a violation of subsection (a), or subsection (c) of this Section or of any other criminal statute.

    Now, that extension of the bar, whatever the bar is, to any other criminal statute, it is my argument that that presently bars the prosecution of Communists under the membership clause which is the clause that this case comes up under.

    Whatever might be its effect on conspiracy cases that has an effect on the membership clause is to cut off the prosecution for Communists.

    Now, after stating the case, I propose to focus my argument on these two questions, the statutory and the constitutional.

    There are also these evidentiary questions which are raised in Yates and — and were raised in Mesarosh.

    And if time permits, I will say a few words about those as well as about the points relating to fair trial.

    Felix Frankfurter:

    Can you take a minute to state the — what you call statutory question.

    That isn’t a question of criminal pleading, is it?

    Telford Taylor:

    No.

    It is a question of — of limitation of the scope of — of the Smith Act by virtue of a subsequent Act.

    It is not, Mr. Justice Frankfurter, a repeal of that, of the membership clause because the membership clause is left applicable to persons belonging to other organizations than a Communist Party, that is assuming it’s constitutional.

    But it is in our — in my view a limitation of the membership clause by the — an exclusionary limitation, an exclusionary limitation of Communists.

    Now, might I say a preliminary word on the Government’s past practice in the enforcement of this membership clause as compared to its enforcement of the other provisions of the Smith Act.

    As the Court knows, the Dennis case was the first case against Communists under the Smith Act.

    The defendants there were indicted not only in a single indictment for a conspiracy, but those defendants were also indicted in individual indictments under this same membership clause.

    But before the case was tried, there was a motion to sever those individual indictments under the membership clause.

    That motion is granted so that the Dennis defendants were tried only under the conspiracy indictment.

    However, those membership indictments have not been withdrawn, despite the lapse of eight years since 1948.

    Those membership indictments against the original Dennis defendants are still pending in the Southern District of New York, although there has never been any trial under those indictments.

    Now, after the Dennis case, the Government brought a series of conspiracy indictments similar to Dennis’ indictment, similar to the cases that were here the last two days, against groups of Communist Party members and officers in various cities.

    Those cases, those indictments all were laid after 1950 and therefore, after the enactment of this provision from the Internal Security Act that I’ve just read.

    Whether or not that was the reason, I do not know, but the fact is that in those subsequent indictments, they did not undertake to indict the members individually under the membership clause.

    There’s the Fraenkel case in Baltimore and the Flynn case in New York in which this Court denied certiorari.

    Then, this week, we have had the Yates and Mesarosh cases and none of those cases were there individual indictments under the membership clause.

    They were indicted only for conspiracy, and that insofar as I know remained true until 1954, 1954 was the first occasion.

    Since 1948 when those original membership indictments went in against the Dennis defendants, it was the first occasion that the Government again sought to invoke this membership clause and it sought it in this case, which is now before you, and in the Lightfoot case coming from the Seventh Circuit, which is on argument following this one.

    Only this case and the Lightfoot case under the membership clause have been reviewed in the Courts of Appeal.

    This one in the Fourth Circuit, Lightfoot in the Seventh, and in both of those cases, the conviction was affirmed and it was held that the Act was constitutional and that Section 4 (f) that I stressed is not a bar to prosecution.

    Now, may I turn to the facts of this case, which I can state quite briefly because basically the questions here are legal, I think.

    The petitioner, Scales, was indicted on November 18th in North Carolina, Federal District Court.

    The indictment is found on Page 1 of the record.

    And I think it is important to take a look at that, because much of the argument will revolve around what is in it and what is not in it.

    It is a very short and simple indictment entirely contained on that first page and it alleges four things.

    The first paragraph alleges that the Communist Party is a society or group of persons who teach and advocate the overthrow of Government.

    The petitioner undertook to deny that allegation.

    Then, in the next paragraph, it is first alleged that the petitioner, Scales is a member of the Communist Party, that he did not undertake to deny and the record shows that he is an officer of the Party at the state level.

    He is not a national officer.

    He is Chairman of the Party in North Carolina.

    Telford Taylor:

    On argument in the Yates case, government counsel analogized these cases by the number of stars the generals wore on their shoulder.

    I do not know how many stars would be warranted for this particular office, but apart from that, this is a state level case, nothing higher.

    Then, it is alleged that Scales knew the Communist Party to be a group that advocates overthrow by force or violence, and that is denied.

    Finally, the last allegation according to Page 1 is that the defendant intended to bring about overthrow, violent overthrow, as speedily as circumstances permit.

    That too is denied.

    There is a legal question as to whether that allegation has any proper place in the indictment, in view of the fact that the membership clause specifies that membership and knowledge says nothing about intent, and I will discuss that question in due course.

    The case went to trial in April of last year and Scales was found guilty.

    He got his six-year in jail much more easily than Mrs. Yates did.

    He did not take the stand, had no contempt problem, but he was given six years for this offense, which is in fact a year more than any other defendant in the Smith Act case has gotten.

    The reason for that is that the other defendants have been convicted under the general conspiracy statute, the maximum penalty underwhich until recently has been five — the maximum penalty is five years.

    Whereas, since this case came up under the Smith Act itself where the maximum penalty is 10 years, he could be given a longer sentence and he was.

    The case was — the conviction was affirmed below and the case came here on certiorari last March on four stated questions, of which I have already mentioned two, the constitutionality problem, the statutory problem under 4 (f) of the Internal Security Act, a question whether there is sufficient evidence of the Party’s unlawful aims and sufficient evidence of Scales’s guilty knowledge and intent.

    That is sufficient to go to the jury or support a verdict.

    And finally, there are four questions raised about the conduct of the trial of which probably the two most important are the method of impaneling the grand jury and the validity of certain rulings on the admissibility of evidence which Mr. Donner adverted to briefly this morning in discussing the questions which would be — would have been presented under the Mesarosh case.

    Are there any questions as to the judge’s charge?

    Telford Taylor:

    There are no questions raised on certiorari about the judge’s charge.

    I think, Your Honor, probably has in mind the problem of incitement or may have that in mind which is discussed.

    There was in this case, unlike the Yates case the same kind of a charge about incitement that Judge Medina gave in the Dennis case.

    Now, might I say a few words about the evidence, which again I can do quite briefly.

    The prosecution called only three witnesses against Scales.

    The first one was Lautner, John Lautner, who is a chronic witness in these cases and he made exactly the same kind of testimony as far as I know that he has given in the others.

    He knew nothing about Scales, did not purport to know anything about petitioner.

    He testified as an ex-member of the Communist Party about the doctrinal aims of the Party from which incidentally he resigned on January 17th, 1950, which is nearly five years before this indictment was brought and about two years before the statutory period of limitations under this indictment.

    In general, he — he identified the classical writings that were discussed yesterday with Marx, Lenin, and Stalin.

    He testified that the Communist Party of the United States where in its constitution or in other writings, it claims not to advocate force and violence.

    Lautner says in his opinion not as a camouflage.

    And he stated that Marxism-Leninism essentially means overthrow by force and violence.

    And that was in some substance of Lautner’s testimony.

    The other two witnesses are the ones who testified about petitioner.

    They are both FBI informants who joined the Communist Party by prearrangement with the FBI to observe and report on what went on.

    Telford Taylor:

    The first being a witness named Clontz and he met Scales in 1948, which again is a long time before the indictment of statutory period and was in contact with Scales until December 1951, which is just barely the beginning of the statutory period.

    He testified primarily to numerous private conversations with Scales in which Scales has reported to have made statements upon which the Government relies heavily to show Scales’ own personal belief in force and violence.

    Then, the third witness, Childs, another FBI informant, sort of picks up chronologically where Clontz stopped.

    He was in contact with Scales during the statutory period and attended a party school in North Carolina which it had said Scales was the director of.

    There is extensive testimony from Childs on what was taught of that school.

    On the record of his testimony, much was taught there that it is certainly highly controversial, certainly highly abhorrent to many Americans.

    But as I read the record, there is no showing that force and violence was part of the school.

    That is the prosecutioner’s case.

    As to the defense, the petitioner did not testify and the evidence given in his behalf, which I have described in my brief for the information of the Court, does not in my opinion importantly affect the issues that are now open here on certiorari, as to those issues.

    As I have remarked, the Court may not have to reach the constitutional question.

    But the constitutional and the statutory question, both depend on a careful reading of this membership clause to see what is in it and what isn’t in it and I think it will be clearer if I tried to point out the constitutional issue first and then comes the statutory question.

    Although, Your Honors, may well decide to decide the case in reverse order.

    Now, on constitutionality.

    I would like the Court to consider just what the membership clause as applied in this indictment, seeks to imbue with a criminal seditious character.

    There is no charge in this case that the — that Scales advocated violent overthrow or that he incited anybody to violent overthrow, or that he organized any group which was dedicated for the purpose of violent overthrow.

    There is no charge that he conspired with anyone to do any one of those things.

    There is in fact no act at all charged, unless remaining a member of the Party during the statutory period maybe considered an act.

    There is no concert of action, no agreement with anyone else charged in the indictment for any legal or illegal purpose.

    The defendants involved in the conspiracy cases that have just been before the Court, after all, are accused of being co-conspirators with the Dennis case defendants and they are the people who were supposed to have patched this conspiracy in 1945, and they are the leaders of the Party that is said to be the vehicle of the conspiracy.

    It is not my responsibility to say whether that accusation is — is substantiated or not.

    However that may be, there is no such charge in this case, no charge of conspiracy with anyone.

    The difference, therefore, between this case and the Dennis case in terms of clear and present danger is I think not in need of elaboration.

    And actually, my argument with the Solicitor General is not joined on the basis of the membership clause as written, because as I read his brief, he does not undertake to defend the constitutionality of the membership clause as written.

    He undertakes to defend it by reading into that clause a great deal that is certainly not there in words and that I think cannot be read into it by any common sense implication.

    Felix Frankfurter:

    Mr. Taylor, I don’t quite — I’m not sure I understand.

    Is it your contention that Congress cannot constitutionally say that anyone who is a member of an organization that seeks to destroy the Government by force and violence must be guilty of an offense?

    Telford Taylor:

    This is not a statute, Your Honor, that punishes conspiracies to destroy the Government by force and violence.

    Felix Frankfurter:

    I’m not — my — my question is just, I want to know whether if you are referring to the powers of Congress to make it a defense, deals to be member, although, a member never opens his mouth, never likes to lie, leave the membership in an organization which is considered to the purpose of the law dedicated to overthrow the Government by force and violence.

    Telford Taylor:

    Well, I can only repeat, Your Honor that I don’t think that is this case.

    Felix Frankfurter:

    What I’m asking is whether that —

    Telford Taylor:

    Whether it would be my opinion?

    Felix Frankfurter:

    If that is in this case, where does this differ?

    Telford Taylor:

    This differs in that the organization here is charged only with advocating the overthrow by force and violence.

    There is a quite different federal statute that punishes conspiracies to overthrow the Government.

    This statute punishes conspiracies to advocate overthrow or the advocacy itself and it is my position that under the First Amendment, Congress cannot proscribe mere membership in an organization that does nothing but advocate even if the advocacy is force and violence.

    Felix Frankfurter:

    Advocate is not — not the — entertaining the idea of advocacy the accomplishment of that purpose.

    Telford Taylor:

    Advocates the accomplishment of purpose.

    Felix Frankfurter:

    Did they get valid treatment?

    Telford Taylor:

    Indeed so.

    And it seems to me that the Court had enough difficulties sustaining the actual members of — the actual conspiracy charged in the Dennis case.

    By difficulty, I mean soul searching, consideration and disagreement, and if that case is an arguably closed one, as it seems to me is a very serious problem, this case seems to me a fortiori, this is so much further removed from any concept of clear and present danger.

    Here, we have nothing but an allegation of membership instead of an allegation of co-conspiracy with the leaders of the Party that were involved in Dennis.

    Now, as I was saying to meet —

    Felix Frankfurter:

    Assuming however —

    Telford Taylor:

    I beg your pardon.

    Felix Frankfurter:

    — the Court has proven the problem, the difficulty.

    Telford Taylor:

    Yes.

    Felix Frankfurter:

    And not one way rather than the other.

    Can you say that the proscribed membership in such an organization which make such an organization possible of rejecting before this trial, a participation by people?

    Does that sometimes (Inaudible) although those who manipulate the organization maybe (Inaudible)

    Telford Taylor:

    Those who organize it, those who advocate or who conspired to do it and that of course is quite an important factor because in my belief, the Court laid great stress on the presence of conspiracy in its — in its opinion in the Dennis case.

    Felix Frankfurter:

    The case I’ve put to you doesn’t involve any speech at all, it’s a — its merely — the question I want to raise is whether the inarticulate members would — must qualify the (Inaudible) as my question presuppose.

    Telford Taylor:

    Yes.

    Felix Frankfurter:

    Whether that is not tangible by Congress although the organization bring it about the argument.

    Telford Taylor:

    I should think not.

    It is true that there is no —

    Felix Frankfurter:

    The freedom of speech is involved.

    Telford Taylor:

    It is true that there is no speech of the member involved if he is as you say a silent member.

    But the only thing which is dangerous about the group is that it is an advocating to a speaking group so that speech must come into it in terms of the group even though it doesn’t in terms of the individual member.

    So that all the problems under the First Amendment that confronted the court in Dennis are here multiplied and aggravated by the fact that the petitioner’s connection with the conspiracy or the advocacy is so much more remote than it was in the case that came here before it.

    Felix Frankfurter:

    I can understand the problem of remoteness, I don’t understand what freedom of speech is.

    Telford Taylor:

    Because, Mr. Justice Frankfurter, the prohibition is on membership in a group that advocates, in a group that advocates.

    And therefore, the thing which is being based upon, I suppose, is the petitioner’s freedom to belong to a group dedicated to the purpose of advocacy.

    Felix Frankfurter:

    I can understand your reply, but somehow rather somewhere in the constitution it’s explicitly there was a right of free association.

    But I — my trouble is and I’d like to read the constitution not as a congramurate document, but something that binds me to find something by Congress that’s unconstitutional.

    Telford Taylor:

    Well, I should think —

    Felix Frankfurter:

    I have difficulty finding free speech involved.

    Telford Taylor:

    I should think that speech is not only what you or I may say with our own lips, but it is also expression through organizations whom they belong to.

    And I should certainly think that penal restrictions on membership in a group based on advocacy by that very fact must impinge on free speech.

    Might I continue to meet what are the arguments that had been levelled against my position by the Solicitor General.

    Because he undertakes to meet our position on constitutionality, as I said, by reading a great many additional factors into this membership clause so that by the time it gets through, it is substantially the same as if this were a conspiracy case.

    I have mentioned that he wishes to read into it the additional requirement of personal intent.

    He also wishes to limit it to active members.

    Now, as to those two things, I am about to state briefly the reasons why I think that can’t be done, but I should like to state at the outset that it is not crucial to my position whether or not we read personal intent into this clause.

    It is not crucial to my position that we read an implied limitation to active members.

    What he does attempt to read and that I do think is crucial is the equivalent of a conspiracy case, but let me deal first with the personal intent problem.

    The Solicitor General’s position is that mens rea or guilty intent is often read into criminal statutes and that it should be done in this case in order to assist the constitutionality as an aid to interpreting the clause of being constitutional.

    And he points to the Dennis case, where this Court did read the requirement of personal intent into the paragraphs dealing with advocacy and organizing.

    Now, in fact, I think it is very difficult to read a personal intent in here and I will state briefly why.

    This membership clause is part of the Smith Act which in turn is modeled on a New York statute, which came before this Court in the Gitlow case.

    The resemblance between the Smith Act and the New York statute was commented on in the Dennis case itself.

    The New York statute contains a membership clause.

    It was not involved in the Gitlow case, but it’s been on the books there all the time.

    And the membership clause in the New York statute does not even require knowledge.

    It is a naked prohibition of membership with no additional qualifications or limitations, and it was in that form that the Smith Act was first introduced in Congress.

    The membership clause in the original Smith Act simply prohibited membership and did not require any joint personal knowledge.

    That requirement, that personal knowledge, was added in the assigned judiciary committee by a specific amendment.

    That being so, and Congress having deliberately added the requirement of knowledge, it would seem quite arguable that had they meant to include intent at the time they were fortifying this clause, they would have specifically added intent, and intent is indeed to be found in Paragraph 2 of the Smith Act, the clause dealing with literature.

    Well, but what about the reasoning of this Court in the Dennis case, when it was read into advocacy and organizing?

    I don’t think it applies here.

    Telford Taylor:

    This Court went on the basis that it is part of the intrinsic nature of things that if you advocate a result, you intend it, or that if you organize a group to advocate a result that you intended.

    But it does not follow, certainly does not follow nearly as automatically, that because you are a member of a group, you intend all of its purposes, legal or illegal.

    The — the addition does not follow by the same logic as in the other clauses and here, we have a legislative history showing that the original models of the statute didn’t even require knowledge and that Congress specifically added knowledge.

    Now, those considerations apply in general also to the proposal from the Solicitor General that the requirement of party activity to be read in here.

    But now, we come to the addition which I think is really the crucial point, because in addition to intent and activity, the Solicitor General wishes to read into this clause the sort of thing that is found at Page 45 of his brief.

    He quotes Justice Jackson’s opinion in the Doud’s case and then once — goes on to say that ordinary conspiracy principles are playing irrelevant to membership in an organization where a membership entails such tightly disciplined quasi-military, deeply conspiratorial activities as those of the organization against which the Smith Act is directed.

    Such membership obviously partakes of the concert of action, combination and acting together which characterize conspiracy.

    That indeed was also more or less the theory upon which the Court of Appeals went below.

    They — the Court in substance equated membership in an organization with being a conspirator.

    Now, I do not think that this effort to save the constitutionality of the membership clause by reading all this material into it, can work.

    I have four reasons why I think this — this effort must fail.

    The first one is a purely verbal one, but I think it is nonetheless important.

    It is all very well to try to save a statute by construing it so as to be constitutional.

    It is entirely proper to work the construction in such a direction that constitutional questions aren’t raised.

    But it — one cannot simply and totally rewrite the statute for that purpose.

    More for amusement than anything else, I have written out here how the statute would look if everything the Solicitor General wants to add into it were added into it.

    And if there is very little resemblance to the original clause, that argument may be said to be formal, but there comes a point where formalities have some meaning and this is simply trying to add too much by way of implication.

    But there are more important reasons.

    If we adopt the interpretation below and the Solicitor General’s interpretation, and in substance, turn this membership clause into a conspiracy clause.

    We have rendered either that clause itself or the conspiracy provision meaningless surplusage and I would like to remind the Court that in 1940, when this clause was — when this Act was passed, in fact, from 1940 to 1948, there was a separate conspiracy provision right in the Smith Act.

    One was not at that time indicted under the general conspiracy statute, but under the conspiracy clause of the Smith Act itself and that has now been restored with the Smith Act by an amendment in 1956.

    So that it seems to me incredible that Congress would have inserted the membership clause, merely to serve as sort of another version of a conspiracy charge.

    Felix Frankfurter:

    Mr. Taylor, may I ask you this question?

    As I understand your argument now is that a certain interpolation must be made whether having the Solicitor General to argue that (Inaudible)

    Telford Taylor:

    Yes.

    Felix Frankfurter:

    That in terms of general knowledge, suggests a certain interpolation.

    Telford Taylor:

    Several.

    Felix Frankfurter:

    The purpose of (Inaudible) in the statute did report in his charge as I understand what (Inaudible) if the Court submits to the bureau a meaning of the statute with the interpolation with the Solicitor General has to submit to it all the (Inaudible) it referred to the District Court in this case on a different assumption of the statute.

    Telford Taylor:

    Indeed, the trial court did not read into it what the Solicitor General seeks to do and that was the fourth of the arguments that I intended to — to point here.

    Felix Frankfurter:

    Well, if that’s so unless I’m very wrong, the question is whether it should or it shouldn’t be but didn’t and that is the — the verdict must be judged by what a judge — by a trial judge trying with the juror (Inaudible) and that was not really put together.

    Telford Taylor:

    That’s quite right.

    In other words, even if you try to build up by holding new membership clause here, you still got to go back to two things, the indictment and the charge.

    None of these things that the Solicitor General wants to add were in the indictment.

    He was not indicted for being an active member.

    He was indicted for having an intent.

    That’s the one thing I did add in that isn’t in the statute.

    But these other things importing a whole thought of conspiracy, concert of action and error were not put in the indictment and the jury was never charged that any such elements as that have any bearing on guilt or innocence.

    Felix Frankfurter:

    Well, the indictment, more or less is having turned to the statute so that it would give a — it would give a leeway for the charge to be made of it, but the scope of the charge is vital to the terms of (Inaudible)

    Telford Taylor:

    It seems to me so.

    There is one other factor that I think also is of importance and that is that the position that the Government wishes to take would give the Government all the benefits of the conspiracy idea but none of the burdens.

    If you are going to charge a person with conspiracy, you have to indict more than one person.

    You have to name co-conspirators.

    You have to name at least those co-conspirators upon whose evidence you’re going to rely to convict anyone.

    You have to prove an agreement.

    That’s the — the essential thing about a conspiracy, is that it is an agreement to achieve some unlawful objective or by some unlawful means.

    Felix Frankfurter:

    Well, is the Government’s position — do you tell the Government’s position that this is in effect an indictment of likelihood with other people with whom it is (Inaudible)

    Telford Taylor:

    Well, this is Scales, not likely.

    Felix Frankfurter:

    I beg your pardon, Scales.

    Telford Taylor:

    It seems to me that’s the basis of their argument and — and it isn’t only that.

    It is also in my opinion of theory that Judge Parker went on below in sustaining this Act.

    We have quoted in our brief segments from Judge Parker’s opinion and he does say it, a tantamount of conspiracy case and treats it just as if it were a conspiracy case.

    But if it were, why then all these things that I have been mentioning would have to be there, there would have to be co-conspirators.

    There would have to be a charge and proof of an agreement.

    There would have to a charge of some joint action of some kind.

    But nothing like that has been charged here, nothing like that is in statute and it seems to me therefore that the — that the Act must fail.

    Now, I would like, if I may, to proceed immediately to the statutory problem because as I have indicated, I think that that maybe of equal importance here and maybe considered first.

    Could I ask you one question —

    Telford Taylor:

    Yes.

    — before you go to that?

    Do I understand you to say that the Government as you interpret their position except for this element of specific intent that they recognize has to be imported or which they agree has to be imported into the statute.

    But apart from that, they don’t undertake to defend the statute with that addition except with the addition of these other elements that you talk about?

    Telford Taylor:

    That is the way I read the brief.

    Their argument in favor of the statute’s constitutionality is certainly bottomed on the assumption that these elements of working together, concert of action are considered as being part of the membership clause.

    William O. Douglas:

    But what — what they did was (Inaudible) knowing membership and that — that’s all?

    Telford Taylor:

    I think they would argue that — that in their view, the Communist Party is the kind of organization that has these characteristics.

    But that gets us, Mr. Justice Douglas, to a matter of proof, not to a matter of what a statute prohibits when an indictment accuse this person of and what a judge charges the issues on that.

    And those — that’s the framework that we have to stay within here or if one comes to the proof.

    The Government who undoubtedly cite many things that they say shows that the Party was like this.

    But if we look at the statute, the indictment and the charge, we don’t encounter those problems and we shouldn’t.

    Felix Frankfurter:

    More or less the statute plainly enough made a differentiation between those that they gave room and prescribed for conspiring and organizing each exceptions —

    Telford Taylor:

    Yes.

    Felix Frankfurter:

    — and those who give strength to the organization by being members —

    Telford Taylor:

    Quite right, yes.

    Felix Frankfurter:

    — and whatever one may think about it —

    Telford Taylor:

    That’s the difference.

    Felix Frankfurter:

    — comments off it to make those two categories.

    Telford Taylor:

    Yes.

    Felix Frankfurter:

    And you can’t say that every member and everybody who — who is a member of the Communist organization in view of the nature of that organization is a conspirator.

    That’s your position.

    Telford Taylor:

    That’s my position.

    And if you’re going to say it, then you’ve got an indictment for conspiracy.

    Felix Frankfurter:

    That’s the indictment for him, the judge has solely charged.

    Telford Taylor:

    Quite right.

    Let me turn now to the statutory question and I will remind the Court that 4 (f) of the Internal Security Act, which is what I rely on here, says that neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of this Act or of any other criminal statutes.

    Now, the issue this time between myself and the Solicitor General is as follows.

    He says that because the words “per se” are in there, that this clause from the Internal Security Act only bars the prosecution on the ground of membership and nothing else.

    Whereas, the Smith Act membership clause prohibits membership plus knowledge and therefore, membership plus knowledge is something more than membership or officership per se.

    And you can be indicted under the Smith Act for membership plus knowledge.

    That is his argument.

    Now, I will meet that in two ways.

    Telford Taylor:

    I should like to say first what I think it does mean.

    I think this clause means that a Communist can be prosecuted for advocating the overthrow of Government for distributing a literature or organizing a group that advocates or for conspiring to do those things.

    In other words, he can be indicted and tried under the Smith Act in terms of prohibited action.

    But that he can’t be indicted and tried in terms of membership.

    That’s what I read the clause to mean.

    If we differentiate on the ground of membership plus knowledge, then we encounter problems, both of legislative history and of logic.

    And let me do the legislative history first.

    The purpose of this provision in the Internal Security Act is perfectly clear.

    The Internal Security Act makes certain findings about the Communist Party.

    It prohibits certain conduct and it requires members of Communist organizations to — to register.

    Well, the introduction of a registration statute, that is to say an exposure statute, so to speak, into a field already covered by penal legislation raised obvious problems under the Fifth Amendment and the self-incrimination provision there, problems which this Court brushed in the — in the subversive Control Board case which was sent back for reasons parallel to those discussed this morning.

    Now, John W. Davis, late John W. Davis pointed out to the Senate committee that this problem of self-incrimination was inherent in the registration notion.

    He pointed out in the Internal Security Act in one breath undertakes to punish people who try to overthrow the Government.

    The exact language of the penal provision is found in my brief at Page 48.”

    It would be unlawful for any person to conspire, to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictatorship.”

    I believe no one has been, as far as I know, indicted under that yet.

    But obviously, there would be danger that if one registers a Communist under Section 7 of the Act, one might inculpate oneself under this that I just read.

    And John W. Davis pointed that out and it was on his urging that Section 4 (f) came into existence.

    But in the form that it first came into existence, all he did was say that you couldn’t be prosecuted under this other Section of the Internal Security Act by virtue of Communist membership.

    Then, when it reached Congress, Senator Kilgore and the Senate, Congressman Cellar in the House both pointed out that Section 4 (f) in that form did not give any protection under the Smith Act.

    And indeed, Senator Kilgore specifically referred to the membership clause of the Smith Act, saying that if you could be required to register as a Communist and then prosecuted for membership under the membership clause, it would clearly have a Fifth Amendment objection to registration.

    And that unless you put in this provision, therefore, the registration mechanism would breakdown because the privilege would be available.

    So, this 4 (f) and the reference to any other criminal statute which is thereupon added to it was put in there specifically with the membership clause in mind.

    Now, the Solicitor General says that the purpose of 4 (f) is to ensure that the membership clause will not be construed as punishing membership without knowledge.

    Well, I’ve heard the story about hiring an elephant to step on a mat, but this is getting an elephant to step on a mat that isn’t there because this membership clause already sets its membership with knowledge which is punishable.

    And to think that Congress would have enacted an entire clause 10 years later to ensure that that would be not construed as membership without knowledge seems to me with quite — quite impossible reasoning, quite impossible.

    It isn’t as if there was any ambiguity in the membership clause by requiring knowledge.

    It’s there in so many words.

    There is certainly no need to enact another statute to ensure that knowledge would be left in there.

    The result is that under the interpretation he contends for, Section 4 (f) is left without any place to operate, because even those other Sections of the Internal Security Act require knowledge.

    Telford Taylor:

    So that if 4 (f) only protects Communists who do not know the purpose of the Party, it would have absolutely no effect under either of the membership clause or the other Sections of the Internal Security Act.

    And what would it do to the Internal Security Act itself?This after all is a scheme of trying to get people to register, enforce — enforcement of Communist registration.

    But if 4 (f) only protects Communists who do not know the unlawful purpose of the Party, presumably, such ignorant Communists are the only ones who can be required to register, and any Communist who has guilty knowledge, guilty intent of any kind can plead self-incrimination and avoid registration.

    It’s quite beyond the purview of possibility that Congress intended any such consequence as that.

    What they were trying to do is to ensure that Communist could be required to register under the Internal Security Act and to give them the protection that they needed to avoid the plea of self-incrimination.

    Now, it may or may not be that Congress was successful.

    It may or may not be that this provision is broad enough to give them that protection.

    Well, I was going to say under series of things, would that be the purpose they did (Inaudible)

    Telford Taylor:

    But their purpose —

    In their own statement they left (Inaudible) to the prosecution for all other violations.

    Telford Taylor:

    That may well be, Justice Harlan, but that that was their purpose, there is no doubt.

    John W. Davis’ letter, the debates, the addition of a phrase or of any other criminal statute make it quite clear that the purpose of this — and there could have been no other.

    I mean, Congress had no reason to pass this provision, saying that Communists shall not be prosecuted for that reason alone.

    He had no reason to pass that other than to try to meet the self-incrimination danger to the registration provisions.

    Now, may well be as I say that they do not go far enough, but the effect of 4 (f), the interpretation of 4 (f) must be in the light of what Congress is trying to do.

    And assuming that — that this is what it was trying to do which I think is beyond argument, it cannot be confined the way this was the General wish it to be.

    That Security Act (Inaudible)

    Telford Taylor:

    It does in Section 2.

    That of course merely reinforced the danger of self-incrimination.

    Could it be that the purpose of Section 4 (f) (Inaudible)

    Telford Taylor:

    It is quite clear to me that it was the danger of — of that that led to the inclusion of 4 (f).

    It was the combination of the congressional finding in Section 2, the penal provisions in Section (4), and the registration provisions in Section 7 that originally led Mr. Davis to write this letter.

    They wrote an exculpating provision which applied only to the penal provision in Section (4), then it being pointed out that the membership clause was still on the books.

    They added the provision of any other criminal statute.

    Now, it is not arguable, I think, Justice Harlan that what they were worried about was that the membership clause would be construed as punishing membership alone, because it says right in it, membership, knowing the purposes thereof, that language could be no clearer.

    But the effect of your interpretation would then say that Congress was encouraging Communists to register but never mind about the prosecution of them for membership.

    Telford Taylor:

    They were still vulnerable to prosecution in the way they’re being prosecuted in these other cases under the substantive provisions or action of some kind —

    But not under the membership clause.

    Telford Taylor:

    But not on the membership clause.

    They will be vulnerable for prosecution for advocacy, organizing, conspiring to do those things without their membership.

    And they wouldn’t be registered because they have this protection that they’re registered.

    Telford Taylor:

    They would be required to register and whether or not this 4 (f) is sufficient to wipe out their plea of self-incrimination is a question that is not now before us, though it may well be in another case one day.

    William O. Douglas:

    But what — what difference does it make whether (f) is here or not now, since the indictment is under the other Section, is it not?

    Telford Taylor:

    Well, the indictment is under the membership clause but 4 (f), Your Honor, says that no Communist shall be prosecuted — it says neither the holding of office nor membership shall constitute per se a violation of this Section or of any other criminal statute and the — or of any other criminal statute covers the membership clause, the Smith Act and was put in by specific design to reach the membership clause of the Smith Act which is the section that —

    I’m not saying that the (Inaudible)

    Bear in mind there were citings (Inaudible) in terms of the Security Act, if you read Section 4 (f) as — as you’ve placed here that despite those incitements, there was to be no prosecution under the Internal Security Act against members — members of the Communist Party.

    Telford Taylor:

    I think that’s right.

    That doesn’t reach however the membership clause of Smith Act and that if you could carry that, at least that point in your argument, then many other criminal statute simply to revert the prosecution of the Communist, being a member is one, of the Party first if any other criminal statute makes that an offense leading the membership clause holding the defense.

    Telford Taylor:

    Well, we do know that the — if — that the any other criminal statute was put in there because it was brought home to Congress that Communists could be prosecuted under the membership clause and that there was a danger that if they remained vulnerable to that they would have the plea self-incrimination when required to register.

    That is the —

    Hugo L. Black:

    Where is that in your brief?

    Telford Taylor:

    — point of Senator Kilgore’s report — pardon me.

    Hugo L. Black:

    Where is that your in your brief —

    Telford Taylor:

    The legislative history is discussed in there at — just a minute.

    Hugo L. Black:

    Take the part to which you are now referring.

    William O. Douglas:

    29.

    Telford Taylor:

    Pages 29 to 31, and you will find the reference to Senator Kilgore at Page 31.

    Hugo L. Black:

    (Inaudible)

    Telford Taylor:

    Yes.

    The Senate Bill in the meantime was reported out with the provision that neither membership nor office holding of any Communist organization should constitute a violation of the Internal Security Act, what Mr. Justice Harlan was asking about.

    In a minority report, Senator Kilgore pointed out that this provision does not even purport to avoid self-incrimination in relation to the membership clause of the Smith Act.

    And then the other Senators joined in and there was this amendment written in any of the criminal statute.

    William J. Brennan, Jr.:

    Immediately after when?

    Telford Taylor:

    Pardon me?

    William J. Brennan, Jr.:

    When was the amendment written in (Voice Overlap) —

    Telford Taylor:

    The amendment was written in after Senator Kilgore made his minority report.

    It was written in — actually in contrast.

    What had happened was that a different kind of clause of 4 (f) had emerged from the House and a different kind from the Senate, and the two were sort of melted together in conference.

    In the course of which per se was put in and the words or of any other criminal statute were added.

    Hugo L. Black:

    Was Senator Kilgore in the conference committee?

    Telford Taylor:

    That I do not know.

    He was the author of the minority report from the Senate committee, so —

    Hugo L. Black:

    In the judiciary committee?

    Telford Taylor:

    That’s correct.

    So, it’s quite possible that he was in the conference, but I have to check that.

    Hugo L. Black:

    He was Chairman at that time?

    Telford Taylor:

    Well —

    Hugo L. Black:

    Was he chairman of —

    Telford Taylor:

    1950?

    He’s the Chairman or a ranking minority member.

    Again, I’ll have to check.

    Felix Frankfurter:

    Mr. Taylor, at the time this indictment was filed, the Smith Act was no longer the Smith — the original Smith Act was not a provision under statute rules, wasn’t it?

    That it is, the Smith Act and that kind of penal code is categorized.The Smith Act remained an independent statute in whatever department it was?

    In other words then —

    Telford Taylor:

    It had been codefied I believe in 1948 —

    Felix Frankfurter:

    1948 and —

    Telford Taylor:

    — before this indictment.

    Felix Frankfurter:

    — (a) and (b), (a) and (c) which you have in your brief, that was part of the U.S. Code, wasn’t it?

    Telford Taylor:

    In the U.S. Code.

    Felix Frankfurter:

    Then, there was a later provision by the Internal Security Act into law, underwent a codification in 1952.

    What I’m asking —

    Telford Taylor:

    No, in 1952 —

    Felix Frankfurter:

    — is what — pardon me.

    Telford Taylor:

    Excuse me, there is another amendment in 1956, just this year.

    Felix Frankfurter:

    No, I’m not talking about that.

    (Inaudible)

    It wasn’t it — wasn’t all this then the provision put into one comprehensive court provision?

    Telford Taylor:

    Well, they are all assembled together in — in one volume of the code, yes.

    I’ve forgotten the exact sequence.

    Felix Frankfurter:

    On the one — on the one section or title whatever it was.

    Felix Frankfurter:

    And if so, then — then what was it the name of the clause, statutorily (Inaudible)

    Telford Taylor:

    Yes, that would be true.

    That would be true.

    Felix Frankfurter:

    Well, if that’s so, it — it seems I’m (Inaudible)

    Telford Taylor:

    Well, if there’s —

    Felix Frankfurter:

    In other words, the Smith Act didn’t close out there by itself as an independent statute, but is imparted by this collection of —

    Telford Taylor:

    Part of a scheme of statutes regulating the question of security, 1940, 1950, Communist Control Act of 1954, etcetera, etcetera.

    Now, I think that I have covered the principal things that I wanted to say about these two major points and I do want to reserve some time for a reply.

    As to the evidence here, I would simply like to make one observation.

    The evidence given about the Communist Party here is subject to exact to the same infirmities that were the basis of Judge Hastie’s dissent on the Mesarosh case.

    I had of course expected before that the Mesarosh case would have been discussed this morning so that I could shortcut it.

    But essentially, Judge Hastie thought that there was not sufficient testimony of imminent overthrow of the Government toward defining a clear and present danger.

    Insofar as Scales himself is concerned, there is a place in the record where one of the Government witnesses, I believe it is Childs who testifies that he asked Scales how soon he thought this violent revolution is going to occur.

    And his answer was that, “Your daughter who is now one-year-old will be married under a socialist government.”

    Allowing the usual span, it would seem that the revolution was in the neighborhood of 20 or 21 years off.

    This is not quite as long as William Z. Foster made it when he dedicated the book to his great, great grandson who would grow up under a Communist government.

    But questions were asked in the last two days about how soon this revolution has to come.

    And in terms of Scales’ personal intent, I think it is quite clear the Government is relying on evidence about a theoretical attitude of approval of the idea of revolution.

    That in terms of imminence or incitement, he is talking about spans of 20 years and this is a very difficult thing to make into a clear and present danger.

    I will rely on my brief where the points brought fair trial, Mr. Chief Justice, and rest.

    Earl Warren:

    Mister — Mr. Solicitor General.

    J. Lee Rankin:

    May it please the Court.

    First, I’d like to call attention to one fact in regard to the statute of limitations, which was increased to five years in the summer of 1954, which was before the indictment in this case, which was in November of 1954.

    So, the critical period would reach five years back in November of 1954, instead of the lesser period.

    While the matter is fresh in your minds, I’d like to briefly refer to Section 4 (f) on our interpretation of what the Congress did and try to do.

    We have no dispute about the legislative history as set out in the briefs.

    We agree that the various Congressmen and Senators said substantially what was set forth in the briefs in regard to that.

    But the problem of accepting the interpretation replaced by the petitioner upon this Section of the statute from the Internal Security Act of 1950, seems to us impossible.

    Because at the very time that the Congress was doing this, it was residing at considerable length and petitioner claim — complaints about it, that this Communist Party was a terrible instrument engaged in a program for the overthrow of the Government of the United States.

    And then, by this device of 4 (f), the Congress at the same time was supposed to set up a provision which would emasculate a portion of the Smith Act under which they just debated and knew that prosecutions had been sustained by the courts in the Dennis case.

    J. Lee Rankin:

    And they were to take out this membership clause entirely at the same time that they were going at lengths to condemn this party and its action to require registration.

    But can they explain that they did that in order that they might get them registered?

    J. Lee Rankin:

    Yes.

    That is the claim.

    I want to deal with that.

    Felix Frankfurter:

    He also — he might claim (Inaudible)

    J. Lee Rankin:

    Well, I think the Congress was careful about the use of the expression “per se,” and the problem was whether or not membership by itself was a vice for which a person could be convicted of a crime.

    And they were trying to deal expressly with that problem and I think they did.

    They said, “Neither the holding of office,” you’ll notice that that goes farther than membership, it meant only membership in the Smith Act, “Nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or (c) of this Section,” which means the Internal Security Act of 1950.

    And then, they added at a later date, “or of any other criminal statute.”

    Now, it was recognized that they had taken care of the problem of whether or not the registration under the Internal Security Act of 1950 would be a crime under Sections (a) or (c) of these particular Act that they were passing.

    And then, it was — the question was raised.

    Well, you don’t do anything for the Smith Act by such language, and of course that’s true.

    It doesn’t purport to have any effect on anything else.

    And the question was whether registration under this Internal Security Act of 1950 might in some way involve the membership clause of the Smith Act and to make it clear that “per se” membership would not be affected in any way, they added, “or of any other criminal statute.”

    Well, the very ones they wanted to get registered were those that were under the membership clause of the Smith Act, weren’t they?

    They’re the ones that they wanted to get down on paper.

    J. Lee Rankin:

    That’s right.

    And those persons, they — they want to reach by this registration the members of the Communist Party, but they didn’t want to reach anybody who is a member per se by the Smith Act because it didn’t —

    But they wanted to reach some of the — they want to reach something that they could prosecute, didn’t they?

    J. Lee Rankin:

    They had not provided any — any provision for prosecution in the Smith Act for those who were just members per se.

    No, but they prosecute them for the conspiracy and —

    J. Lee Rankin:

    They could be prosecuted —

    They get them registered as members and prosecute them for the conspiracy.

    J. Lee Rankin:

    And that was the problem that was — that they were trying to deal with.

    And by adding — by up to the time that they put in the words “or of any other criminal statute,” they had no provision to take care of the registration of a member per se which might lead to some prosecution under the Smith Act of the conspiracy to organize or advocate or overthrow.

    Felix Frankfurter:

    Are you saying and to put concrete that this was put in so in this case, the Government would not proceed with the indictment by proving to obtain the members of the Communist Party directly.

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    Is that what you’re saying?

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    But wasn’t that true of the Smith Act?

    They — they couldn’t do that in the Smith Act.

    J. Lee Rankin:

    Well, in the Smith Act, they were also — had the problem of the other provisions of the Smith Act in regard to conspiracy to organize and to advocate and teach and that wasn’t taken care of.

    If they registered even though it was just per se, it might lead to information where they could prosecute under those provisions of the Smith Act without regard to the membership clause which was not expressly discussed.

    The Smith Act did not in terms referred as a Communist Party.

    J. Lee Rankin:

    That’s right.

    The membership clause did not in terms.

    Is it your point that absent the 4 (f) provision, it might have been that particularly in view of the recitals in the Internal Security Act granting the Party as a subversive party, that somebody might have thought that by putting in mere membership of the Communist Party would make a prima facie case under the membership clause which required knowledge, is that your point?

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    But how could it (Inaudible)

    Did anybody attempt with the prosecution under the Smith Act, I mean by the fact that knowledge was required.

    J. Lee Rankin:

    Yes, knowledge as to membership.

    Felix Frankfurter:

    Yes.

    J. Lee Rankin:

    But there are two other provisions in the Smith Act about organizing and advocating in teaching which the member — the registration of the member per se might claim — would lead to that information.

    Felix Frankfurter:

    But if it’s a question of safeguarding opening up an inquiry, and 4 (f) (Inaudible)

    J. Lee Rankin:

    Well, that case isn’t before the Court and that is —

    Felix Frankfurter:

    I — I’m not talking about (Inaudible)

    It seems to me, (Inaudible)

    I don’t see how they accomplished it but (Inaudible) by 4 (f) in which — which would be (Inaudible) of membership.

    Because the other provision of the Smith Act you have to put in all the knowledge in passing, don’t you?

    J. Lee Rankin:

    Yes, that’s true.

    But you also might get leads from the registration that would be objectionable and they were trying to —

    Felix Frankfurter:

    Well, how about — how would that come to be?

    How would it pay if this — what’s the — to hold that if it leads — how does that — what is asked anymore than by — by just saying the First Amendment is what (Inaudible) in other words, prosecution under the Smith Act?

    That’s what I understand on the statute.

    J. Lee Rankin:

    Well, the problem that Congress had was that it was declaring the Communist Party to be bad in the Internal Security Act of 1950.

    And yet, in order to make it effective at all for registration, it wanted to make it clear that membership of the Party itself was conceivably not bad.

    Hugo L. Black:

    May I ask you?

    Do you think that that (Inaudible)

    J. Lee Rankin:

    I think that’s what they were working at.

    Hugo L. Black:

    Well, how does it (Inaudible)

    As I understand you, you say that (Inaudible) is a member of the Communist Party, that’s one, plus two, knowledge that is (Inaudible)

    J. Lee Rankin:

    Oh, we’re going to add intent, too.

    Hugo L. Black:

    All right, plus of it.

    Well, if that’d be true and a person inquired or held new information as to one of two or three essential elements of a crime, (Inaudible)

    J. Lee Rankin:

    Well, Congress was trying to say —

    Hugo L. Black:

    Well, in other words, how did they get what — what you say they’re going to say?

    J. Lee Rankin:

    Congress is trying to say that membership without war, without knowledge and intent is not bad.

    And so, the mere fact that you register a membership is you don’t add anything to the crime, because you can be innocent and be a member if there’s nothing more than that.

    Now, that’s what the burden of 4 (f) is.

    Earl Warren:

    And you can’t even prove membership by the registration.

    J. Lee Rankin:

    That’s right.

    Hugo L. Black:

    Through one of the elements of a crime plus registration?

    J. Lee Rankin:

    No, they were saying you could not.

    Hugo L. Black:

    If that’s true —

    Earl Warren:

    That proves anything for (Inaudible)

    Hugo L. Black:

    — in your interpretations today, why do you not — in fact, it didn’t (Inaudible) it.

    If the registration (Inaudible) can a man be compelled to get one or two (Inaudible) crimes, one or the other?

    J. Lee Rankin:

    Well, Congress was saying that you couldn’t use the registration to prove any part of the crime.

    Hugo L. Black:

    Alone.

    They said, alone, per se —

    J. Lee Rankin:

    That’s right.

    Hugo L. Black:

    — whatever it is.

    J. Lee Rankin:

    That’s right.

    Hugo L. Black:

    But you say that if you think it amended the Smith Act so as to take that out?

    J. Lee Rankin:

    Well, they recognized the Smith Act already provided that there had to be knowing membership, and that there could be membership per se that was perfectly innocent.

    There’s a recognition of that by this particular language.

    William O. Douglas:

    That — that’s the only category that 4 (f) affects in the suit membership?

    J. Lee Rankin:

    Per se, whatever that —

    William O. Douglas:

    Per se membership?

    J. Lee Rankin:

    That’s right.

    William O. Douglas:

    So, if a — if a person was guilty as Mr. Taylor said, of knowing the whole purpose of being an active part of, then he would not have to register by reason of the Fifth Amendment?

    J. Lee Rankin:

    Well, that case isn’t here, but it would seem to follow.

    Felix Frankfurter:

    (Inaudible)

    But why — why do say it would follow?

    J. Lee Rankin:

    Because —

    Even if he register —

    J. Lee Rankin:

    Well, he would have to claim his —

    Even if he registered, it — it could not be used against him in any prosecution.

    J. Lee Rankin:

    That’s right, but I — the question was, if he would claim his — and the fact that would incriminate him, would he have to register?

    And he can — I might not claim his privilege and the fact that he registered could not be used against him.

    But if he did say that it would incriminate him, object to it, that was what I was conceding.

    Felix Frankfurter:

    Why is that —

    If you — if you concede that that if he claimed his privilege against registration, why could he — how could he claim a privilege when the registration could do nothing towards his conviction?

    J. Lee Rankin:

    Only on the theory that that might lead in some way to information toward his convictions.

    But the registration of course could not be used as such against him and he might not claim his privilege.

    Hugo L. Black:

    Do you mean that they could call for evidence, being registered (Inaudible) being charged under the Smith Act (Inaudible).

    J. Lee Rankin:

    Yes, sir.

    Hugo L. Black:

    They could use that (Inaudible)

    J. Lee Rankin:

    That’s — that’s right.

    Hugo L. Black:

    My question is, (Inaudible)

    J. Lee Rankin:

    That’s my recollection of the provisions of the Internal Security Act of 1950.

    Hugo L. Black:

    What (Inaudible)

    I’m not sure if this is justified.

    J. Lee Rankin:

    The fact that the registration of any person under Section 787 or Section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this Section or of any alleged violation of any other criminal statute.

    Hugo L. Black:

    And how do you get away from the fact that (Inaudible) under a case in a court?

    J. Lee Rankin:

    Well, I did concede that it might and that — that would be the reason why the claim of — that it might incriminate him would be valid but he still have to make the claim.

    Hugo L. Black:

    He’d have to make it in order to keep him registered.

    J. Lee Rankin:

    That’s right.

    Hugo L. Black:

    (Inaudible)

    J. Lee Rankin:

    Yes, I — I concede that.

    That’s right.

    Felix Frankfurter:

    May I (Inaudible) and tell me what your view is, the bearing of Section 8 (b) of the Internal Security Act which makes the requirements of an individual acknowledge the organization.

    Each individual who is or becomes a member of any organization (Inaudible) from Section 7 (a) (Inaudible) that you have failed to include his name (Inaudible) required to register.

    Now, there’s knowledge in the fact that (Inaudible) protect anybody from the mere fact of being a member —

    J. Lee Rankin:

    Unless —

    Felix Frankfurter:

    Unless (Inaudible)

    J. Lee Rankin:

    And that’s what we think the debates as set out in the brief shows Congress was trying to reach.

    It was a mere effect of membership that could not be used and that they wanted to exclude so that it wouldn’t bar the registration on the reach of what they accomplish to something else.

    But that was their purpose and it was suggested that when they referred to this particular Act and not alone they certainly were doing nothing about the problems in the Smith Act, and that’s why the language of any other statute was added to that.

    Hugo L. Black:

    Do you think it’s this Court’s responsibility (Inaudible)

    J. Lee Rankin:

    I think you have a greater problem than that.

    I think you got a problem of trying to construe both Acts, the Smith Act and this Act, so as to not reach a constitutional problem that would destroy the statute if you can help it.

    And I think they can be read together under the interpretation that we suggest to find that there is some provision as to registration (Inaudible) and also that the Smith Act was not affected.

    And I think that you do violence to the — to everything Congress was trying to do.

    If you say that in spite of the recitals that Congress made in the Internal Security Act of 1950, and again in 1954, that they were drawing a section in the statute in such a way as to exclude from it membership in the Communist Party of the United States and leave within its purview all other organizations like Nazi and fascist — fascist organizations which they weren’t concerned with at that time to any extent as the debate show and everything that was done shows.

    Felix Frankfurter:

    What are the — that what you indicate, it seems to be a (Inaudible) that they are putting a (Inaudible)

    They’re not concerned (Inaudible) and so on.

    They weren’t concerned with it because really, they werent concerned.

    That is not a problem, that was not an active problem.

    But the problem — but the control of the Communist Party was enacted (Inaudible) namely, it should go out to the policy.

    That’s the way (Inaudible) — don’t go out of your way to find (Inaudible)

    J. Lee Rankin:

    Yes, I — I think that’s correct.

    I do think that Congress was acting in this area and it was trying to accomplish something and it’s — it’s plain.

    And it seems to me that the Court would try to undertake to make both provisions effective insofar as it’s able to.

    And certainly it seems very clear to me in the debates that they were well aware of the decision in the Dennis case and we’re not trying in any way to injure the Smith Act.

    I’d like to turn next to the question of the acts of these petitioner, his participation in the question of knowledge and intent.

    The question was asked whether or not the government was urging that this was in the nature of a conspiracy like the other provisions of the Smith Act.

    And that is not our contention, it wasn’t the way the case was tried below and it isn’t urged in our brief as I understand.

    Our contention is that were you alleged that a person joins a group that necessarily you have some concert of action.

    J. Lee Rankin:

    But you also have to have knowledge of the statute describes and we had intent as a necessary element on the theory that mens rea is a generally presumed and require those provisions.

    I — I can understand how the petitioner can complain about that because we are requiring a much stricter construction of this statute than the one that he would argue for with just knowledge.

    We — we require in addition the element of intent by the petitioner to accomplish the objectives and purposes of the party that he joins.

    Not only that he has knowledge of the purposes and intents and objectives of that Party, but that he personally intend to accomplish it.

    And it seems to me that that removes from this problem of the membership clause of the Smith Act some of the elements that could be and probably would bother this Court a great deal which involves the question of the innocent person who joins the party knowing some things about it but never having any intent to try to accomplish them or contribute to the accomplishment of that which case just could be imagined.

    I think that’s in the periphery and we don’t examine these constitutional questions by cases on the periphery.

    But it would be much more abolished than a case under this statute as interpreted by the government.

    It is admitted as counsel state —

    Earl Warren:

    Do you know where — do you get that intent with regard to nothing that’s been said or legislative history —

    J. Lee Rankin:

    No, we —

    Earl Warren:

    — or nothing in the Act —

    J. Lee Rankin:

    We’ll follow —

    Earl Warren:

    — of the cause — do you think that a criminal statute should have him require a mens rea?

    J. Lee Rankin:

    That’s right.

    We follow the general thinking of the Dennis case in regard to that problem and urge it in this situation.And tried the case in the lower court on that basis and the constructions expressly so provided that there had to be knowledge and intent as well as the membership.

    They’re very precise on it.

    It’s also conceded the fact that this petitioner was an officer in the local organization in Carolina, he was a state chairman.

    He maintained a constant contact with the National Committee of a Party in New York.

    He made arrangements for the witness Clontz to go to the special school, the Jefferson School of Social Science, and have a special course and training in New York City and in that training this witness was given detailed instruction in Marxism-Leninism.

    The purpose of the Party in regard to revolutionary purposes and the Proletarian revolution and the accomplishment of the witness.

    Clontz came back and discussed it these various studies at length with the Petitioner and he indicated his belief in them and his understanding and knowledge of those purposes.

    He then went into the whole question of the purposes of the Party with the witness trials who was a student in a university there and then discussed with him the desire and ambition of the Party, the purpose to infiltrate the trade unions and to occupy key positions in the unions in order to forward this revolution at the earliest possible date.

    This was discussed.

    Many urged that the witness Clontz test — attend a meeting that a man by the name of (Inaudible) came down to New York by arrangement of the petitioner and this — this man said in his talk, which the petitioner asked — wants to attend — the revolution in the United States was a certainty and a necessity and would — would be modeled on the revolution that took place in Russia.

    He told Clontz that about the underground and the necessity of the underground and that the Party would have to carry on as an underground when the pressure became too great.

    He also said that he himself had gone underground and that Clontz was not to communicate to — with him by telephone, telegraph or mail.

    Then he arranged for the organization of a school which was very clandestine and all the arrangements for it was held on a farm and everybody who attended became a student of this school under the direction of the petitioner, had aliases and they called each other by these various aliases rather than the names that they were known by.

    During this school, the various purposes of the Party were developed to some length, Marxism-Leninism, and the purpose to accomplish the Proletarian revolution as soon as possible and it was — there was a demonstration in the presence of the petitioner by one of the leaders in which he pointed out how murder could be committed upon another person while in a picket line by the use of a pencil driving it through the throat or the chest.

    Discussion was had in some detail by the witness as to when the revolution could be expected, and whether or not they could expect any aid from the Soviet Union and he told the witness Clontz that the Soviet Union when the revolutionary time was ripe would come to the aid of the United States, or come to the aid of the Party, the Communist Party of the United States.

    Then there was a list of names of persons in a Western Electric publication which set out in some detail the effect of the Communist Party’s activities in the United States on — in the United States and the industrial activity.

    J. Lee Rankin:

    And it was very adverse to a Communist Party and in this there was a list of names at the end, and the Petitioner said to this witness that they should keep those names and when the right time came these people should be shot.

    The witness Childs was also advised that the trade unions where the school is the revolution and we think that this record demonstrates not only that the activity of this petitioner was for the Party generally, but also that he was trying to do what he could to accomplish the objects and purposes of the Party, and recruit members and aid in every way that he could to the accomplishment of the objectives of the overthrow of the government at the earliest possible date.

    In addition to that there was the evidence of witnesses as to the purposes of the Party and its objectives and its objective to overthrow the government by violent revolution in considerable detail.

    A part of this by — was by the witness and none has been referred to before.

    I’d like to briefly refer to the problem of the constitutional questions.

    We rely to a considerable extent on the decision of this Court in the Dennis case, but we feel that the problems are different in the membership clause and the Court would certainly want to examine that with reference to the Dennis case and the problems that are involved in it.

    As I stated, I think the statute fairly shows the requirement of knowledge and we feel that the intent should be included as mens rea in the ordinary construction of criminal statutes.

    The issue as we see it is whether or not the Congress has the power to provide for the proscription of membership with knowledge and the intent to accomplish the objectives of the Communist Party in this manner.

    And that there would be a presumption of the congressional right in the action that Congress take — took being valid and should be given a great weight in this — in the consideration of this Court of the problem before it.

    Now the threat of the Communist Party was recognized by the Court in the Dennis case and also as we regarded in the Douds case.

    There have been numerous cases in which the problem of the Communist Party in its — in the prosecution of various defendants has been conducted under Smith Act cases.

    Some 20 cases and the juries in each instance have convicted the defendants.

    The trial judges have affirmed that on the evidence that was presented to them and the appellate courts have approved that in various instances up-to-date.

    We think that the situation during this trial was more aggravated than it was at the time of the Dennis proceeding in that there was during two-thirds of the time of this period involved in this indictment, the Korean conflict going on in which we had a large number of American casualties.

    We’ve also had as the Court recognizes Dennis the history of a number of governments that have fallen through the means of the Communist Party and its program of trying to secure a minority who would support its program and then secure control of the police of the country like in Poland, Czechoslovakia and then overthrow of the government.

    All of these things seem to us to demonstrate the danger and the present threat of the party as such.

    And here we have a functionary of the Party who was an officer, was an important person in the area of the Party activities in control of the Carolina’s on behalf of the Party, and constant communication with it, actively recruiting new members, instructing them in the purposes of the party, its objectives and revolutionary designs and intending to do all that he had — he could within his power to accomplish those objectives.

    Mr. Rankin, assuming knowledge and intent to be proved, you’ve drawn a distinction between the validity of the statute as applied to a passive member as distinguished on an officer or an active member.

    What I mean is, supposing a man gets a letter to make it concrete, gets a letter saying this Party dedicated to violence and overthrow would like to have your support and believe in it, he signs up, does nothing more, he goes to no meetings, is he reached by the statute?

    J. Lee Rankin:

    Well I wouldn’t think so, no.

    I think —

    Would prove knowledge and intent.

    J. Lee Rankin:

    But you don’t prove that he intended to accomplish the objective.

    Now, he writes a letter back says, “I agree with all this.

    This is my program.

    I’d like to lend my support.

    Here is my subscription.”

    He signs up, there’s nothing more.

    J. Lee Rankin:

    Well, I don’t believe the jury would convict him of —

    That’s another question.

    The reason I asked you was —

    J. Lee Rankin:

    Because it doesn’t —

    — because it seemed to me that it was implicit in your brief — and Mr. Taylor made some point of it that you did add to the element of the membership something that connoted “active membership” as distinguished in passive membership.

    That’s the reason I put the question to you.

    J. Lee Rankin:

    Well we do and the way we arrive at that, we feel that the only way you can conclude intent is that you find activity of some kind from which you draw the inference of intent, and unless there are some activity that is of important to as difficult to draw the conclusion of intent to accomplish the objectives and purposes of this Party as distinguished from just a general —

    That would be the ordinary way of proving intent.

    J. Lee Rankin:

    That’s right.

    But I’m trying to test my understanding of your theory conceptually where you had all of that supplied by written evidence and was foolish enough to say “yes, I believe all these and I’ll join your Party and then does nothing more.”

    I understood from your brief you expressed some doubt as to whether you could get that man or constitutionally apply the statute to that type of person as against a — an active man.

    J. Lee Rankin:

    That’s correct.

    We find — we —

    Or you do write something more to the statute then?

    J. Lee Rankin:

    We find that the action has to be sufficient to make the intent clear and —

    You’re talking about evidence, I’m talking about constitutionality.

    Earl Warren:

    General, would the Court instruct the jury that it is necessary to find intent?

    J. Lee Rankin:

    Yes, the Court was — Mr. Chief Justice, the Court was very precise about that element.

    Earl Warren:

    (Inaudible)

    J. Lee Rankin:

    Yes, he directed they must find that it was an incitement and also an intent and that the intent had to be —

    Do you draw the intent to your character of the organization knowing the character of the organization (Inaudible)

    J. Lee Rankin:

    We do not.

    We find — we take the position that you have to find a specific intent by the defendant —

    To urge —

    J. Lee Rankin:

    — to urge and accomplish these purposes, these unlawful purposes.

    And the Court so instructed instead.

    And a specific intent as I’ve already indicated to you on the part of the accused to bring about the overthrow of the Government is also necessary and an indispensable requisite of the offense.

    What page is that?

    J. Lee Rankin:

    That’s on Page 111 of the record.

    Felix Frankfurter:

    Are you saying that you read the statute to mean that he must have shared the purposes of the organization (Inaudible).

    That’s what it all gets down to?

    J. Lee Rankin:

    That’s one way of saying it, yes.

    J. Lee Rankin:

    But the — it seems to me the Court is very precise on that instruction being an indispensable requisite of the offense.

    Hugo L. Black:

    (Inaudible)

    J. Lee Rankin:

    Oh, yes.

    Oh, he has to have knowledge of the purposes of the party and he has to — to —

    Hugo L. Black:

    (Inaudible)

    J. Lee Rankin:

    — do sufficient acts so that you can conclude that he personally intends to accomplish the objectives and purposes of the Party and that’s the instruction that’s been given in this case and the other case.

    Felix Frankfurter:

    Having to be a matter of construction of the statute that he — the law requires that he should know — that he should have joined an officer knowing that the organization as he — as he proscribed these illicit purposes and that he shared believing this purpose (Inaudible)

    J. Lee Rankin:

    Well that’s — that the —

    Felix Frankfurter:

    (Inaudible) I don’t see why.

    This would just start (Inaudible)

    J. Lee Rankin:

    That’s the —

    Felix Frankfurter:

    You cannot call membership active membership from (Inaudible) wants to bring down the government by force.

    J. Lee Rankin:

    The effect of it is that once he becomes a member and has that knowledge and — and understands the purposes and intents, and has the intent to accomplish those objectives that it becomes a crime and that’s what it had to be followed specifically in this case.