Yates v. United States

PETITIONER:Oleta O’Connor Yates
RESPONDENT:United States
LOCATION:Roth’s mail-order book business

DOCKET NO.: 6
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 354 US 298 (1957)
ARGUED: Oct 08, 1956 / Oct 09, 1956
DECIDED: Jun 17, 1957

Facts of the case

Fourteen leaders of the Communist Party in the state of California were tried and convicted under the Smith Act. That Act prohibited willfully and knowingly conspiring to teach and advocate the overthrow of the government by force. This case was decided in conjunction withRichmond v. United States andSchneiderman v. United States.

Question

Did the Smith Act violate the First Amendment?

Earl Warren:

Number 6, Oleta O’Connor Yates, Henry Steinberg, Loretta Starvus Stack, et al., versus United States of America.

Mr. Margolis.

I beg your pardon.

Yes.

These — these three cases are all together, Number 6, 7 and 8, that’s —

Ben Margolis:

That is correct, Your Honor.

Earl Warren:

— insinuation with Mr. Margolis.

Felix Frankfurter:

May I ask you?

Whether you’re alone or your associate — your associate will argue?

Ben Margolis:

No, each of the cases will be argued separately but they are consolidated.

They have been consolidated by the Court for a single — appearing a single argument, as I understand it.

Earl Warren:

Yes, that’s correct Mr. Margolis.

Felix Frankfurter:

How many arguments?

Three, four, how many?

Ben Margolis:

We will have myself, Mr. Kenny, and Mr. Donovan.

I am arguing case Number 6, which involved 11 of the petitioners in the case.

If the Court please, this —

Felix Frankfurter:

Let me get around this early, would you mind stating what identity, what differences there are in the three cases that are consolidated that you’re arguing, when you get around this Mr. Margolis for overtime.

Ben Margolis:

There are no — I will state right at the outset, Your Honor that aside from some evidence with respect to individual acts or statements of individual petitioners and aside from differences with respect to their position in the Communist Party, there are no substantial differences among these petitioners.

Felix Frankfurter:

The only difference is of the (Inaudible)

Ben Margolis:

Aside from (Voice Overlap) —

Felix Frankfurter:

— (Voice Overlap)

this argument, that those —

Ben Margolis:

— aside — aside from the fact that there are differences as to individual statements attributed to the petitioners, differences as to their positions held within the Communist Party.

Felix Frankfurter:

But the main attacks or common attacks?

Ben Margolis:

I believe that is correct, Your Honor.

However, counsel may disagree.

This is the first Smith Act case of course since Dennis that this Court has agreed to hear.

I think that the Court should know at the outset that the indictment in this case, names all of the defendants in the Dennis case as co-conspirators with the defendants in this case.

The theory of the respondent has been at all stages of this case that the conspiracy charged in this case is identical with the one in Dennis sustained by the decision of this Court.

Ben Margolis:

It might be wrong then at the outset to consider to what extent the facts in this case and those in the Dennis case are similar than to what extent they’re differ.

There are, in my opinion, only two facts common to both cases, two general facts.One is that in both cases all of the defendants were admittedly members of the Communist Party.

No issue in Dennis about that and no issue here.

The second is, that in both cases essentially the same books, the so-called “Marxist-Leninist” books were introduced into evidence and essentially the same passages from those books are relied upon by the respondent.

I believe that there is no other fact of consequence that is the same in the two cases.

The differences are numerous as a comparison of the findings in Dennis remembering that the Court did not pass upon the sufficiency of the events on that case, but accepted the findings of the Court of Appeals and acted upon them.

So we take a comparison of the findings in Dennis with the record in this case where the Court has agreed to review the sufficiency of the evidence.

In Dennis, it was found, and may I say at the outset that the Court said in Dennis that these findings were essential to its decision to the finding that the statute as applied was constitutional.

The first finding is that the petitioners were the leaders of the Communist Party of the United States.

That they were all members of a small, compact, top governing body.

This was charged in the indictment.

This was the undisputed evidence.

This — they were all members of the group known as the National Board of the Party.

None of the defendants, none of the petitioners in this case are or ever were members of that body.

During the period within the statute of limitations of the 11 petitioners who I represent, only four — first of all not a single one of them held any national position, not one.

Only four held positions as officials of the state organization, the California State Organization of the Communist Party and they were members of the state committee of that Party.

Of the remaining six, there is evidence that two others, on some occasions, attended meetings of that state committee.

Of the remaining petitioners, five held offices and the highest level of which was the county.

They were county officials in the County of Los Angeles or County of San Franscisco.

Two never held any officers above a city level.

And whereas in Dennis, there was the common relationship between all of the defendants in that case by reason not only of their common membership on the National Board but by reason of their acts as found, as members of the National Board.

In this record, there is nothing showing common activity on the part of these petitioners at least in the same sense, unless that common activity be that they were all members of the Communist Party and as members of the Communist Party independently within the Communist Party carried on certain activities.

The Dennis case proceeds also upon the finding that the petitioners on that case, and I believe these are the words used by the Court, were unwilling to work within the framework of democracy.

I am not here discussing the sufficiency of the findings in Dennis, this Court didn’t.

We must assume for the purpose of the argument that they were supported by the record and this Court did.

Here, the record is replete with statements of support for, and work, and plans all within the framework about democratic process relating to legislation, relating to running for office, relating to discussion of various issues which were current controversial issues being decided within the framework of our democratic process with these petitioners taking their part in making that decision, small, minority, and popularism might be.

As a matter of fact, a great deal of this evidence.

In fact perhaps a major portion of this evidence with respect to the almost total preoccupation of these defendants with their activities within the framework of our democratic process, came from respondent’s witnesses and as a result of their direct examination, because of the theory which respondent proceeds on in this case, and that is, that any activity within the Communist Party, according to the respondent, is evidence of participation in the conspiracy.

This is a subject that I’ll come back to a number of times during the course of my argument.

Next, there was a finding in the Dennis case that the defendants there intended to initiate a violent revolution whenever the propitious occasion occurred.

Ben Margolis:

Now that finding did not result from independent evidence of intent, but as the decision indicates was a finding which arose out of the other findings of the activities of the petitioners in that case of the Dennis defendants, that is their activities as members of the National Board, their advocacy and the other findings that I referred to here.

In other words, intent came as a direct result there of findings of fact, none of which are present in this case, none of which can be supported by the record in this case.

Moreover, concededly that intent could be deduced from findings of activities other than those which it was found the Dennis defendants’ engagement.

But I believe we will demonstrate, I believe — I believe our brief demonstrates that there is no basis for any finding with respect to anyone of these petitioners resulting from their activities, resulting from their knowledge as shown by the evidence to support a finding of this kind of intent.

Next was probably the most important single finding made in Dennis.

In Dennis, this Court may remember, the indictment was returned, I believe, some three days short or three years after the reconstitution of the Communist Party just barely in time to bring that reconstitution within the limits of the statute of limitations if in fact the Government intended to rely probably on that.

And the finding that was made with respect to these laws, that these defendants, these members of the top governing board, use their control of the Communist Political Association, which has been organized in 1944 some 13 or 14 months earlier as a result of the dissolution of the Communist Party.

That they had used their control of the Communist Political Association to change it from an organization which had a policy of peaceful cooperation with the Government of the United States and a peaceful change within the democratic framework of the United States to one which worked for the overthrow of the Government of the United States by force and violence.

In other words what they said, this Court said here, here are the small group of men who set down, they control the Communist Political Association, this was a lawful organization engaging in rights, in activities protected by the Constitution of the United States and by their control, they changed it to an organization the object of which was to accomplish the forceful overthrow of our Government.

How about the record here?

First of all, there is not one word of evidence to indicate that anyone of the petitioners in this case exercised to any extent the kind of control that the petitioners in Dennis were found to have exercised.

There is no evidence in this case that anyone of them had anything to do with bringing about such a change.

There is no evidence that they denied it.

As a matter of fact as I have pointed out, only four of the individuals were even members of the state committee, of the 11 I represent.

And there is no evidence that the state committee of the Communist Party did anything to change the Communist Political Association from an organization which believe in peaceful advocacy, of peaceful change to one which worked for the overthrow of the Government by force and violence.

Next and this is rather interesting point although I have sometimes been in doubt about its full significance.

The Dennis indictment, the Dennis findings were, that the conspiracy was initiated in 1945 with the reconstitution of the Communist Party.

I want the finding that the Communist Political Association that fourteenth-month period was not a period when any conspiracy as far as that organization was concerned or anything in relation to it was in action.

And as a matter of fact, as I pointed out, that reconstitution of the Communist Party was the key evidence in Dennis.

Here, when the original indictment was returned, it was alleged that the conspiracy began in 1945 on the same date that was alleged in the Dennis case.

That indictment was dismissed because of the failure to allege intent, and a new indictment was returned some months later.

And in that indictment, it was alleged that the conspiracy began in 1940, I don’t recall the exact date but it was the date when the Smith Act became effective.

The theory of the respondent apparently be, that the conspiracy was in existence for sometime prior to that date but that it became unlawful upon the Smith Act becoming effective.

In the Dennis case, it was found that Communist Party was a highly disciplined organization.

That the Dennis defendants controlled it and that they would tolerate no dissension from the policies laid down by them, but instead that they insisted that the program be slavishly followed.

I say that there is just no proof of that in this record, just no evidence of it.

As a matter of fact, from respondent’s own witnesses, there appears a tremendous amount of evidence concerning many differences of opinion among members of the Communist Parties, considerable dissension on various issues.

It is true that there is evidence showing that the Communist Party exercised this right to expel certain persons from its organization just trade unions and other organizations from time to time exercise the right to expel some of their members.

But the significant thing is the basis for the expulsion.

They were of three kinds.

Ben Margolis:

They were those who wanted to advocate socialism that socialism be established now when a majority of the people was opposed to it, instead of indicating a willingness to wait for advocating the establishment of socialism until such time as it was believed that the American people would want by a majority, by an overwhelming majority to have socialism established.

These people who didn’t want to wait were the ones who were expelled.

Then there were certain informers and spies and their character, I think, has been evidenced by some recent developments before this Court.

There were certain informers and spies.

They were expelled from this organization as I think they would be expelled from any organization.

And finally, there was the expulsion of a person who carried a gun, and who discriminated against Negroes and those were the charges they give.

Now if that indicates iron control, then it also indicates the character of the iron control exercise within the Communist Party in California.

It was found in Dennis that the petitioners in that case were adept at infiltration into strategic positions.

There just no evidence of that here, just none of any adeptness, of any willful infiltration into strategic positions.

It was found in Dennis that the petitioners there used aliases in order to cover up their work.

There is no such evidence here.

It was found in Dennis and this I think is a matter of very great importance.

That the petitioners in that case used double meaning language.

Now that was predicated upon the testimony of one (Inaudible), who testified that on the basis of his association with the petitioners in that case, he knew that when they talk in favor of peaceful change, they didn’t mean it.

They meant violence instead.

He said he knew them.

This was a very important bit of testimony in the reason that it was so important in that case, is that in 1945 when the Communist Party was reconstituted, in 1945 when the Communist Party was reconstituted, it adopted a constitution and that constitution stated that the Party predicated itself upon Marxism-Leninism.

And it also stated that it favored the achievement of socialism in the United States through winning a majority of the people to that end.

It also adopted provisions for the expulsion from the organization of advocates of force and violence.

Now (Inaudible) explained all of these away.

He said that was protective coverage.

Whether his testimony was truthful or not, it’s not before us, but he said this is protective coverage.

This people who whined didn’t mean this.

Marxism-Leninism is the key there.

He says, “I know when they used the word Marxism-Leninism, they meant overthrow the Government by force and violence.”

And this other language was just been put in there to fool people.

There is no such evidence in this case, none whatsoever.

There is no evidence insofar as this case is concerned that the Constitution of the Communist Party, when it said that it favored the achievement of socialism by winning the majority to that end, when it indicated, it’s our position to advocate force and violence meant anything else to the petitioners than what it said, not one word of evidence.

Finally, there was a finding in Dennis that the defendants in that case advocated force and violence by statements and activities of the leaders and by literature.

Now, as I will show a little more detail here as much detailed if time will allow, there were no such statements here by any of the petitioners.

Ben Margolis:

It is true that the essentially the same Marxist-Leninist books and passages are relied upon in the two cases and to that extent, the two cases are similar.

But it is also true that in this case, there is literature of the Communist Party introduced both by the respondent itself and by the defendants in the case indicating that the American Communist Party or at least indicating a position from which it would be possible to conclude very reasonably that the American Communist Party does not favor in fact disposed to the use of force and violence as long as democratic processes are open and as long as our present form of Government exists.

And there was an article by Mrs.Yates, the defendant whose name leads all the rest in this case.

In which she took issue with a group who recalled the (Inaudible) who were expelled who said, “We want to fight for socialism now”, and in which he said, “No, you can’t educate the majority of the American people for socialism.

You’ve got to win them to that.”

There was — excuse me.

I want to ask you a question.

Do you dispute that on the issue of whether the purposes of the Communist Party of California were within the purview of the Smith Act?

Do you dispute there was enough evidence to go to the — to raise a jury question on that fragment of the case?

Ben Margolis:

Strongly as I possibly —

You do.

Ben Margolis:

— can, Your Honor.

But just was no evidence and I intend to discuss the respondent’s theory in connection with that we do dispute.

There was much other material of the Party there which indicated men of these petitioners, which indicated their view that they favored peaceful change, that they favored socialism, is — is on question.

But that they favored peaceful changes a method of achieving it is what we contend the record shows and what the respondent disputes.For example, there is evidence that when the Schneiderman decision came down, one of the defendants here being the Schneiderman, being Mr. Schneiderman, this was welcomed.

And what was stated as a tenable conclusion there was stated by petitioners here to be their own view of what Marxism-Leninism meant.

There are many other instances of this kind which time does not permit me to go into.

It is my position in short that not a single one of the basic facts which this Court found were essential to the sustaining of the convictions in the Dennis case in holding the statute constitutional as applied, not one of those facts has been proved here.

But there are also additional factors that were not present in Dennis.

For example, at the time that the Dennis case was tried, the conspiracy section was a part of the Smith Act itself.

Subsequently, prior to the time of the trial in this case, that was amended out of the Smith Act and the general conspiracy section was applied in this case.

The Smith Act conspiracy section required no proof of an overt act in furtherance of the conspiracy.

The general conspiracy section which is applicable here, as the Court I’m sure know, does require a proof of an overt act and in furtherance of the conspiracy.

There was no issue in Dennis as to whether such an overt act had been committed.

Here, there is such an issue.

And here the issue is this, I believe.

I think that respondent takes the position that any act committed by any petitioner which in any way helps the Communist Party, not helps it towards its illegal objective, but helps it in any way, is an overt act in furtherance of the conspiracy.

And I believe that this presents a new and an important constitutional question of construction and application of this statute both under the First Amendment under due process and simply as a matter of statutory construction.

Felix Frankfurter:

Would you enlighten me on a point that you (Inaudible).

In the Dennis case, there were in fact over that place whether or not there’s indictment?

Ben Margolis:

No sir.

My recollection is that there were not.

Felix Frankfurter:

I mean that’s what the individual —

Ben Margolis:

My recollection is that —

Felix Frankfurter:

I’m not speaking whether it’s necessary (Voice Overlap) —

Ben Margolis:

My — I understand your question, I maybe wrong, Mr. Justice Frankfurter, but my recollection is that no overt acts as such were charged.

Hugo L. Black:

Do you — do you —

Felix Frankfurter:

I didn’t mean to say if I — pardon me.

That was finally here.

I just wondered what the situation —

Ben Margolis:

That’s my recollection.

Felix Frankfurter:

All right.

Do you assume this case that there may have been or there was a policy of the Communist Party of United States?

They would use force to bring about their — I know you said there’s no evidence of that in here, what about teachings of the Party itself.

Ben Margolis:

I say that there’s no evidence — evidence so far as the teachings of the Party are concerned, but there just no evidence of it, that is.

So that there is either —

Ben Margolis:

That there is no evidence.

Let me make my — I’m sorry sir.

There is no complicity — on part of these defendants and no statement — of no evidence as to the Party itself as to whether —

Ben Margolis:

But let me — let me say this.

What I am — my point is that there is not here clear, convincing, and unequivocal evidence, meeting the standards of the First Amendment from which it can be found that anyone of these petitioners, either by virtue of their membership in the Communist Party of the United States, the Communist Party of California or any other subdivision thereof or by virtue of any other fact adhered to a conspiracy as charged, just no evidence.

That’s our position.

Felix Frankfurter:

Let’s —

That includes the fact that there is no evidence Communist Party of California had such policy as said.

Ben Margolis:

That is our position.

Felix Frankfurter:

If I get the convention on making part of the overt act, am I right in (Inaudible) in what you say that you address yourself to the proposition the requirement of overt act going back to the origin of the general conspiracy statute would be to satisfy as an overt act anything and any other conspiracy, conspiracy before the revenue, conspiracy to violate the opposing laws, has a different greatest question by virtue of the First Amendment consideration, different from overt acts and other conspiracy (Inaudible).

Ben Margolis:

It is my position, Mr. Justice Frankfurter that wherever the First Amendment is involved it has to be given consideration of interpreting the law.

Felix Frankfurter:

Would you mind stating that argument, just stating the proposition what the content or what the significance, what kind of significance that was demanded from overt act in relation to the Smith Act in the present steps of the judicial code.

Ben Margolis:

Well, I would say first of all, Mr. Justice Frankfurter that the overt act in accordance with the ordinary requirements would be — have to be a step toward the completion, a step moving toward the consummation of the conspiracy.

Felix Frankfurter:

So all of that have to be further required —

Ben Margolis:

Yes, yes.

But that — that — but in addition it is my position that advocacy protected under the First Amendment that is speech which is not lawful but which were false completely 100% within the framework of our democratic processes cannot consistently with the First Amendment be an overt act and a conspiracy to overthrow the Government by force and violence without returning the doctrine of seditious conspiracy which I think the First Amendment was intended to terminate in this country forever.

Felix Frankfurter:

Well then this is here, but then you would say speech can never be a stuff of a substantive violation of the Smith Act.

Ben Margolis:

I said lawful speech, which speech expressing ideas which are fully protected by the Constitution cannot be.

I am not talking now about advocacy of the overthrow of the Government by force and violence under certain circumstances.

I’m talking about lawful speech.

I’m talking about speaking for FPPC.

I’m talking even about opposing this Court’s decision in Dennis which I think there is a right to do.

Felix Frankfurter:

Do I gather from the proposition that you intended a while ago that the Act must satisfy the requirement for the overt act, must have a particular characteristic different from overt act in search of further evidence.

(Inaudible) why did your argument — you deal with it as it has a requirement (Inaudible) why should the argument of its freedom of speech is protected not applied to on overt acts that involves what you call lawful speech in the conspiracy before the Government anymore or any less than a conspiracy to violate the Smith Act.

Ben Margolis:

The difference is this.

If I do not believe —

Felix Frankfurter:

Lawful speech is protected, not to protect it, in whatever situation you use it.

Ben Margolis:

I believe, Mr. Justice Frankfurter, that where the lawful, where the speech is merely the conveyance of an idea rather than part of a course of conduct that it cannot be an overt act in any kind of conspiracy case.

Well, that — is that saying or do you intend to say that incitement to overthrow the Government with force and violence would not be an overt act?

Ben Margolis:

No, I’m not saying that, Your Honor.

I’m not taking about that.

I’m not talking about incitement.

Nearly discussion.

Ben Margolis:

I’m talking about or advocacy of ideas —

Yes.

Ben Margolis:

Supportive ideas — vigorous supportive ideas.

Criticism of the Dennis case.

Ben Margolis:

Yes and it isn’t limited to just sort of a yes, but discussion, you can be strong in your discussion as you want to be.

And it’s the First Amendment protects, I can’t be an overt act in any kind of a crime as long as the First Amendment stands in my opinion.

But if — but if there is an incitement.

Ben Margolis:

That’s a different point.

I — I — an incitement —

Within the terms of the Dennis case, incitement is when it’s read to be practical to bring it about.

Ben Margolis:

Well, I — I am not — I think the Dennis case — well I think the Dennis case was wrongly decided there, but I don’t want to argue that point because it isn’t necessary, you might have been —

You’re — you’re assuming that for this case.

Ben Margolis:

For the purpose of this case, although, I don’t want to be understood as agreeing with that.

Aside from the overt act point, there are — there are three other or two other respects, important respects in which this case raises very serious legal problems, constitutional problems which are not present in Dennis.

One is, that the organized term, the organized section of the conspiracy the conspiracy charges to — charges an agreement to organize as the Communist Party of United States an organization which advocates the overthrow of the Government by force and violence.

That in Dennis, there was no problem about the meaning of the term “organize”.

Because as used in Dennis and in accordance with the Court’s findings there, the word “organize” was applied to the reconstitution of the Communist Party to in effect the creation of a new organization and to giving it the attributes of an organization which advocated the overthrow of the Government by force and violence.

Therefore there was no question in that case, about what the word “organize” meant as a matter of statutory construction or what the word “organize” meant or could mean consistently with the requirements of our Constitution.

Here there is such a question.

Because here again, under the instructions of the trial judge, virtually any act of a communist which on the any act which gave any assistance for the Communist Party regardless of its purpose, regardless of its mode constituted organization of the Communist Party.

I think that raises serious constitutional statutory question.

Then of course there’s the question I hope to discuss at some length that the instruction which was quoted in the Dennis case, the one dealing with the incitement was refused in this case although it was proper both by the Government and by the defendant and no similar instruction was given.

Finally, the Court construed clear and present danger differently in my opinion in this case than it was construed in Dennis.

In Dennis, as I understand it, the Court said that in considering whether or not there is a clear and present danger even as they’re limited said, you have to look at the nature of the activities of the defendants, their power to bring about the evil, and the objective conditions in the world and the circumstances of the conspiracy.

All of these things had to be considered together as I understand Dennis in determining whether or not a clear and present danger existed.

The trial judge in this case ruled that a finding of intent to overthrow the Government by force and violence, plus a finding of an agreement to advocate such overthrow in and of itself and then without regard to anything else, any of the factors, conditions of the world, nature of the activities, power to bring about evil, created a clear and present danger.

I believed these two raises most serious questions with respect to the First Amendment on the construction of the statute.

Now the respondent in this case has two theories which it urges support the verdicts of the jury and the judgment of the Court.

Neither of these theories, I submit, find any support in Dennis.

And in order to sustain here these theories, it is going to be necessary for this Court or would be necessary for this Court to go far beyond Dennis in the limitations placed upon the right to speak or in the rights given to the Government to punish for the exercise of free speech.

Now, here’s the first theory.

They say the Communist Party basis itself of Marxism-Leninism.

And this where it is not in dispute because the Constitution so said the Marxist-Leninist party.

It circulates Marxist-Leninist literature because of this, says the respondent, inferences establishing every element of the offense from connection with the conspiracy to the proscribe contempt can be drawn from leadership in the Communist Party and activity therein regardless of the character of that activity.

This was not the Dennis theory, but this is the theory here.

Second, it is argued that certain disconnected oral declarations made by or supposedly made by several of the petitioners, are also sufficient to establish every element of the offense and I want to spend a few minutes — well, I’m not going to spend a few minutes discussing those because of the time — well because I want to get on to other things.

Let me just simply say that they are discussed in the brief that there isn’t one of them that is a clear statement as testified to by an informer and each of them came from the lips of an informer.

There isn’t anyone of them that is an unequivocal statement.

There isn’t any one of them which isn’t contradicted by other evidence in the record and each of them constitute and involved a question of interpreting words.

As for example, just to take one of them.

Well one of the defendants is supposed to have said, I want to see the overthrow of this lousy system as badly as anyone else, but the time for militant action has not yet arrived.

Ben Margolis:

Now, this particular petitioner to indicate the strength or the weakness of the respondent’s case was a long time member of the Communist Party.

He has been a member of the Communist Party since 1935.

Fifteen years during which time the Party was riddled with informers and people who later testified against their former associates, who had every opportunity to observe what this defendant and every other defendant in this case said.

And during the entire fifteen-year period they come up with this one equivocal sentence which says “The time for militant action has not yet arrived” and the use of this word “militant” incidentally by a man whose main activity was in the trade union where the word “militant” as anyone who knows anything about trade union activity is a common word which has no necessary association with force and violence.

If things of this kind as loose, as weak, as inferior in quality of evidence because they consist entirely of all declaration.

And incidentally, there is not a single one of such declaration within the period of the statute of limitations except as to one defendant and the evidence was limited as to him, that’s the defendant — the petitioner Lambert.

So that during the entire period the statute of limitations among all of these people, these eleven people that I represent.

There is this one equivocal statement.

Felix Frankfurter:

These evidentiary matters which you just adverted are not — do not raise the question allegedly improper admission but merely go to their significance in ways, is that right?

Ben Margolis:

That’s right.

They don’t and we are not raising as the respondent would have the Court believe simply questions of credibility.

We say take a look of these things to see what — what stuff they’re made off.

They’re the weakest kind of evidence, they’re inconsistent within themselves, they’re just not solid convincing evidence.

That’s what we say.

And it isn’t believe or disbelieve the witness.

Although I don’t believe that when you get through looking at the evidence of anyone of these witnesses that it is possible to have much confidence in the truth of anything that they say.

Felix Frankfurter:

Why do you — why do you round me out.

I’d like to ask another question (Inaudible).

Several of your questions relate to the charge of the Court, is it not?

Ben Margolis:

Yes, Your Honor.

Felix Frankfurter:

Both the granting and the denial?

Ben Margolis:

Yes, Your Honor.

Felix Frankfurter:

May I ask you, you are at the trial, are you not?

Ben Margolis:

Yes, I participate in the trial.

Felix Frankfurter:

Would you be good enough not tell me what the course in the procedure was in the giving of the charge specifically, the — or request the charge submitted in advance to the Court —

Ben Margolis:

Yes, Your Honor.

Felix Frankfurter:

— the denials thereof indicated before he charged that you then accept to some of his charges, would you mind (Voice Overlap) —

Ben Margolis:

Yes.

Felix Frankfurter:

For one, the manner in which the jury charges for me, one of the most important thing about it was in the trial.

Ben Margolis:

Yes.

Ben Margolis:

Well as I recall at this moment, full charges — proposed charges were submitted by the Government and by the defendants.

That was then I think —

Felix Frankfurter:

Well in advance.

Ben Margolis:

Well in advance of it.

They were then — I think we had the jury dismissed for a day or two, I don’t recall how long and we argue those and the judge indicated “I will give this, I will give that” and before the instructions were given, we have in our hands a modified set of the instructions as the judge intended to give that.

We had also indicated —

Felix Frankfurter:

He gave some and denied others and modified further.

Ben Margolis:

Yes.

Yes, Your Honor.

And he — we knew in advance of our argument what he was going to give with — as a matter of fact, we have stated our objections to them so fully that after the charge, I believe that for the most part we simply referred back to objections which had been previously made, everybody agreed that that procedure would be acceptable in order to save time.

Felix Frankfurter:

But you didn’t have to know what he was going to charge on his own until you’ve heard it and you then took exceptions within the charges?

Ben Margolis:

No, Your Honor we knew everything that he was going to charge before he charge it.

Felix Frankfurter:

Well then, just to the doctrine, did he indicate what he was going to charge?

Ben Margolis:

Fully.

Felix Frankfurter:

In his own — in his own language?

The language of this matter (Voice Overlap) —

Ben Margolis:

He gave us a written document.

Felix Frankfurter:

But even of that purpose.

Ben Margolis:

Setting forth what he was going to charge.

We — we incidentally make no — we — out complaint is about the content.

Felix Frankfurter:

Well I — I’m not — I’m not suggesting any basis for criticism.

I just want to know that then upon the — the way in which a denial of a charge or a granting of it, may or may not have extra weight in the disposition of —

Ben Margolis:

Well, it was very thoroughly considered.

Felix Frankfurter:

Is that (Inaudible) for a judge to — discharge him a grant.

Ben Margolis:

For most of the judges, yes.

Felix Frankfurter:

Really?

Ben Margolis:

For most of the judges or to indicate fairly specifically what he’s going to — what he’s going to say.

Felix Frankfurter:

Suppose in your — the request and he’s granting a denial would indicate that but it seems to me that the man (Inaudible)

I’m not suggesting this is the way I can do it.

Ben Margolis:

Well, lawyers that tried cases think it is a wise thing.

Felix Frankfurter:

Think it is?

Ben Margolis:

Think it is?

Felix Frankfurter:

Yes.

Ben Margolis:

Think it is.

Well, I — I — sorry I would like to discuss the specific incidents, but only time prevents me from doing so, they’re fully covered in the brief.

Now, I want to turn to — I want to say this before leaving these specific incidents.

These specific incidents involved only five of the petitioners and are in no way tied up to the other six unless any statement made by any communist is — by virtue of the fact that was made by communist attributable to any other communist.

It’s — it’s tied in to the other six in no way whatsoever.

It has not shown that they knew of them, it has not shown that they approved of them.

It is not shown that they had anything whatsoever to do with these statements.

And with respect to the six of the petitioners, it is our position that there is absolutely nothing in the record other than evidence of party membership, the holding of a kind of offices that I have indicated to you prior and innocent activities within the Party such as supporting certain types of legislation and it is true in some instances distributing Marxist-Leninist books but never with any advocacy or any interpretation of them has advocated the overthrow of the Government by force and violence.

Now, even as to these six, the respondent’s position is that the evidence is ample.

It is our position however, that unless the nature of petitioner’s activities is given no weight than they were given weight in Dennis that unless Section 4 (f) of the Internal Security Act which is a new provision since Dennis and which provides that membership per se is not criminal, membership of a Communist Party per se is not criminal unless that proposition and the proposition of guilt is personal or both abandoned, unless the requirement of clear and unequivocal proof where First Amendment rights are involved is discarded unless the clear presentation of rule is completely abolished and unless a presumption of guilt is substituted for a presumption of innocence so far as communists are concerned, there is nothing in this record to support the conviction.

The membership in a conspiracy consists of adherents to an agreement, to a common agreement here to an agreement to advocate the overthrow of the Government by force and violence.

Membership and officership in the Communist Party is not the equivalent of although the respondent treats it as the equivalent of adherents to an agreement to violate the law in that respect or in any other respect.

Nor is leadership.

Some point is made in the reply brief of these people weren’t merely members and officers.

They were leaders of the Party.

Well they were leaders I suppose in a small way, but at least absent evidence of use of that leadership towards the forbidden objective the fact that they were leaders lends not one iota of support to the respondent case.

Because our position is that if membership in the Communist Party is per se lawful and if the activities which are engaged in are per se lawful, you cannot by combining the two create some kind of a chemical reaction which imposes criminology upon the compound resulting from innocent membership plus innocent activities, but this is precisely the Government’s theory here.

Now, I think it is fair to say that the main basis for the respondent’s position is to follow.

These people were long time members, officers of the Communist Party.

Communist Party adheres to Marxism-Leninism reasonable to infer that they knew about the Party adheres from Marxism-Leninism and they wouldn’t have remained long time members and officers of the Communist Party unless they agree with that adherence, the Marxism-Leninism.

Next, they say, “Take all of these Marxist-Leninist words.”

None of them say directly and this is an important point I believe, none of them say directly that the Communist Party or that Marxist-Leninist theory is, that the Government of the United States should be overthrown by force and violence.

No such statement can be found in any of these books.

But they say that when you read these books, this is the only possible interest.

This is only thing that Marxism-Leninism can possibly mean and therefore by remaining long time members, officers and leaders of a Communist Party these — they can be inferred that they agreed with Marxism-Leninism and interpreted in this way, became part of a conspiracy they have in their requisite intent, all of that series of inferences drawn from their continued membership in the Communist Party and its distribution of and support of Marxist-Leninist works.

Well, I think one problem with this theory is that actually it broadens the conspiracy beyond the Communist Party.

If under it, if it is accepted anybody who admits adherents to Marxism-Leninism, thereby labels himself a criminal and there many besides Communist both in the United States and throughout the world who claim to be adherence of Marxism-Leninism and who fact say that the Communist have started Marxism-Leninism.

Ben Margolis:

But if there’s only one possible meaning to Marxism-Leninism that anybody who says, “I am a Marxist-Leninist”, is thereby rendered a criminal.

But it is also contrary to the law and to facts.

It forces the respondent to say Schneiderman is of yesterday.

Schneiderman when which it was held that a tenable conclusion is that Marxism-Leninism does not stand for this forbidden advocacy.

And there’s much evidence in the record to support a similar finding.

But I like to spend the moment or two on just the basic theory that of the respondent’s case.

If you will examine the kind of passages that have been introduced into evidence here, you will find that they are one of two kinds.

Either they refer to force and violence in a specific situation having no relationship to United States where there is a tyrannical form of Government, where there are different historical conditions, whether is no opportunity for changes of the democratic process or they consist of the broadest kind of generalities, talking about the capitalism.

Now it is our position that you cannot form such generalities draw a conclusion, that they have only one meaning.

Certainly, the First Amendment is such a generality.

Congress shall make no law abridging freedom of speech and there are some with whom this Court is familiar who have said that can only mean one thing.

Congress shall make no law abridging freedom of speech.

But this Court said in Dennis that the right to free speech is not an unlimited, unqualified right, but must on occasion be subordinated to other values and considerations.

Yet the respondent here insist that as far as these petitioners are concerned only one in construction and that the construction of the petitioners, from selected passages, from selected books must be the one which the petitioners adopted even though there is in the record here a great deal of testimony, a great deal of evidence in the form of exhibits and a great deal of testimony form witnesses including their own witnesses indicating the Marxism-Leninism can be and has been interpreted differently.

One of their principle witnesses, the man by the name of Honig said that when he was a member of the Communist Party and he was a high official in the Communist Party, he believed that there was a 75% chance and he hoped 100% for — for peaceful changes to socialism.

He believed that violence would only come if a minority started against the majority when they wanted socialism.

And that he had talked to many leaders of the Party and that they had agreed with him.

If there is one — one thing that has never been explained here, if the respondent’s witnesses could have so believe, why is it that the petitioners must be assumed arbitrarily to believe otherwise when there is absolutely no evidence to support it.

I want to turn for a moment to the instruction on sight that my time is just about up, and I think this is one of the most important thing.

Both the Government and the defendants in this case asked an instruction be given.

That the law punishes only advocacy or conspiracy to advocate action for the accomplishment of the overthrow of the Government of the United States by force and violence by language reasonably and ordinarily calculated to incite persons to such action.

Now this is — this is the instruction that was given in Dennis.

This was refused.

Not only was this refused, instructions to the same effect in various other forms were submitted.

And the trial judge refused to give any instruction which indicated that advocacy of action as distinguished from advocacy of abstract doctrine and advocacy of ideas was the kind of advocacy of which the statute was asked.

Not a single instruction that he gave.

I call — I want to call the Court’s attention to the fact that at pages and I hope to read it but I won’t.

At pages 69 and 70 of the respondent’s reply in the Mesarosh, which will be argued shortly, 69 and 70.

This same respondent in another case in which the issue was a different one, the issue there is sufficiency of the evidence that show incitement concedes, it seems to me that the kind of instruction that we ask for — what the respondent asked for, was essential to a proper construction of the statute by the Court.

Because what this — what the Court left in the minds of the jury was, that they could find these defendants guilty even though all that they advocated were ideas which could be answered by ideas.

Ben Margolis:

Nowhere did he make it clear that —

Have you printed that instruction in your brief?

Ben Margolis:

Yes.

I — I can give it to you, you want the page?

I was just thinking, having in front of me was —

Ben Margolis:

The one that was given or the one that was refused?

Well, I suppose they’re both be together, wouldn’t it?

Ben Margolis:

Well, the most convenient place for finding them is in the printed appendix, and Your Honor will find them — the ones that were given, Your Honor will find at pages 33 to 36 of the appendix, the printed appendix, to appellants’ brief in the court below, it’s a green volume — yes, the —

William O. Douglas:

What’s the page number?

Ben Margolis:

The ones that were given appear at pages 33 to 36.

There’s some — not all of them at those pages deal with this but on those pages appear all that were given on the subject.

And also the ones that were refused appear in the same document at pages 73, 74 and 76.

Felix Frankfurter:

Before you sit down Mr. Margolis, with the Chief Justice’s permission, I’d like to ask a question —

Ben Margolis:

Yes sir.

Felix Frankfurter:

— to make sure I followed the (Inaudible).

I understood that the during the early part of your argument, all of the questions relate to — in relation to this case, generally with Schneiderman (Inaudible) and I would like to ask three questions in relation to this.

I understood that burden of — the fore part of your argument was that the relation of these defendants to the Communist Party is of a very different order of condition in what the relation of Dennis and company, the Dennis case.

Ben Margolis:

As found by the Court as the basis —

Felix Frankfurter:

(Voice Overlap) —

Ben Margolis:

— for its decision on that case, yes.

Felix Frankfurter:

Technically, unless they are not in here, (Inaudible) you express the nature, and the direction, and the purpose of the Communist Party disregarding for the moment individual relation, the perfectness and effort on that part.

In that — in that part of your argument, are you questioning a conclusion in the inference of illegality or criminality brief, with reference to the Party, never mind the individual which was one of the essential conclusions of the Dennis case.

Ben Margolis:

I —

Felix Frankfurter:

If so, is the evidence in this case different from the evidence that there’s a basis of the decision of the Dennis case on that point.

Ben Margolis:

I think that — maybe I understand Dennis a little differently.

I understand this case a little differently and I’m taking a moment or two if I may have it to — to answer Your Honor’s argument.

Felix Frankfurter:

I didn’t mean to be objective or to prove any legal arguments.

I just want to —

Ben Margolis:

I think there are some — some factors that they require answer in respect to your question.

My position is this.

Ben Margolis:

Dennis did not find and did not hold that the Communist Party was a conspiracy.

That wasn’t the charge.

The charge there was that these individuals engaged in a conspiracy to make out of the Communist Party a certain kind of a thing.

Felix Frankfurter:

And to utilize?

Ben Margolis:

And to utilize it for that purpose.

That was — now incidentally, the charge here is not that the Communist Party is a conspiracy.

The charge here is the same insofar as that goes as dense.

Our position is as follow.

Number one, the charge not being that the Communist Party is a conspiracy, it makes no different what findings there were or could be about the Communist Party and number two, that the evidence in this case is different from Dennis and does not support a finding from — it’s different from Dennis and does not support a finding that the Communist Party if that were material, is that kind of an organization and I want — I must say this first.

I may find the thing that perhaps, if the Court had reviewed the record in Dennis, it might have had doubts about the sufficiency of the showing in Dennis.

But in any event, the showing here is not the same.

Felix Frankfurter:

On the question of the connection between the individuals and the Communist Party which therefore brings significance of the Communist Party of the functioning effort which has a necessary consideration by the Court.

We’re not asking anything as I followed but all or a departure from anything that goes offensive in search of the Dennis case.

I’m not saying you shouldn’t.

I just want to know —

Ben Margolis:

I — I would very much like to see this Court reconsider Dennis.

Felix Frankfurter:

Well, if that is (Voice Overlap) —

Ben Margolis:

But I say that simply by following the limitation which Dennis imposed upon any further breach of the First Amendment — Fifth Amendment because Dennis frankly say that the — the First Amendment has been impaired to some extent as a result of this decision, simply by saying, “Alright, the line which we drew in Dennis is the one which we’re going to observe in this case requires the reversal of this case upon the grounds of the insufficiency of the evidence and upon a half-a-dozen other independent grounds.

Felix Frankfurter:

Thirdly, you mentioned the Schneiderman case, rather than glancing —

Ben Margolis:

My associate —

Felix Frankfurter:

That can be argued?

Very well.

Ben Margolis:

That will be argued.

Felix Frankfurter:

All right, no more.

Ben Margolis:

Thank you.

Earl Warren:

Judge Kenny.

Robert W. Kenny:

The Court please.

I’m the man who argue Steinberg.

And it has been said it’s well-known that Mr. Schneiderman was here before and the last time he was here, he was represented by Mr. Wendell Willkie.

History treated me rather gently because back in 1940, I lost the case of Schneiderman in the trial court and Mr. Willkie took it one in this Court.

Robert W. Kenny:

But Mr. Schneiderman is good enough to let me have one more chance and he’s let me argue it this time.

I don’t know but he may have somebody warming up in case the case comes here the third time but I am going to discuss particularly the res judicata or to be more specifically the collateral estoppel point.

Let’s think first what was litigated before in the Schneiderman case, that is the Schneiderman denaturalization case before this Court in 1943.

The thing that was litigated before was Schneiderman’s beliefs on the crucial issue of the advocacy of force and violence and issues before were did Communist Party membership equal to such advocacy into that this Court said no.

The Court said they could still be a member of the Communist Party and could still be attach to the Constitution.

Well the issue was could he advocate the doctrines of Marxist-Leninist, Marxism-Leninism according to his interpretation of them as still not be advocating force and violence.

And to that this Court said, “Yes, he could advocate Marxism-Leninism according his interpretation and he could be still be attach to the Constitution.”

And now it’s because this Court said and there this is the language of the tenable conclusion language has been cited so many times thereafter.

This Court held then a tenable conclusion is that the part — that the Party in 1927 desired to achieve its purpose by peaceful and democratic means and as a theoretical matter justified the use of force and violence only as a method of preventing an attempted forcible counter overthrow once the Party had obtained control in a peaceful manner or as a matter — as a method last resort to enforce the majority will if at some indefinite time in the future because peculiar circumstances, constitutional or peaceful can’t offer no longer open.

This is the tenable conclusion the Court said, could we reach out.

The last thing is what was the evidence in the first Schneiderman case.

Well it was the same Marxist-Leninist classics that the Government has relied upon the present case.

And it was from those same books which were quoted at length by this Court in footnotes in the original Schneiderman case that this Court was able to adjudicate this tenable conclusion that I’ve just read.

In other words that a tenable conclusion that Schneiderman was not advocating force and violence could be derived from these — these — the same books which were the evidence again in this case.

Now as what was litigated this time.

This time, Schneiderman’s intent is litigate as against belief, they’re both states in mind.

And it was his intent again on this same crucial issue of the advocacy of force and violence.

The issues this time where did his membership and officership in the Communist Party provide, prove ipso facto that he intended to advocate force and violence, and did his advocacy of Marxism-Leninism prove that he indented to advocate force and violence.

Now our point on this collateral estoppels as we say that on those issues, Schneiderman was protected from a relitigation by his Government unless the Government produced proof this time of some different interpretation by him, of the same mold Marxist-Leninist books.

The matter that was litigated before and on which point Schneiderman won before was that his circulation of these books would not have advocacy of overthrow by force and violence.

And thereafter we contend that as long as he merely repeated his formal conduct, that is the conduct which has been adjudicated lawful by this Court as long as he repeated that merely repeated that conduct he was protected by the formal decision.

However, the evidence this time that same — same old books, and the books which have been litigated once.

It’s true in the Government’s brief they talk of new books but they’re glossed over and they’re not cited because the really violent language, it was ever to be found were these old European classics and the books that have been written since 1927, are more on the side of the tenable conclusion and then the — than the earlier works which were —

Felix Frankfurter:

Indeed — indeed hundreds and hundreds of pages of briefs are in front of these because any of them give me a list of what would be left of this record in relation to Schneiderman if you cut out everything that is before us in the naturalization case?

Robert W. Kenny:

That’s what I — it didn’t occur to us.

It might be an interesting —

Felix Frankfurter:

The heart of the business.

Robert W. Kenny:

I think that’s right.

I don’t —

Felix Frankfurter:

I don’t want to ask it.

Felix Frankfurter:

Now can you tell us what your knowledge here is?

Robert W. Kenny:

I can’t —

Felix Frankfurter:

What would be left if you cut out of, for instance, these what, thousands, how many volumes we’ve got here, (Inaudible)

What would be — what would be left if you physically cut out, have to legally cut out everything in these green volume page, I don’t know how many there are —

Robert W. Kenny:

Yes.

Felix Frankfurter:

— but the volume is quite thick.

Robert W. Kenny:

I thought — that I just find in the record the original finding.

Well, we — we would contend that there would be nothing left of the so-called theoretical discussion of the use of force and violence.

Felix Frankfurter:

I’m talking about —

Robert W. Kenny:

Yes.

Felix Frankfurter:

(Inaudible)

Robert W. Kenny:

Yes.

That —

Felix Frankfurter:

(Inaudible)

Robert W. Kenny:

We contend that all — that there wouldn’t be any — anything left that is if you cut out, what has been litigated before in Schneiderman.

Felix Frankfurter:

Now, that was essential of that case, the fact that there maybe other issues but not two or one, unless it’s a brand new thing, unless something has happened, unless the Communist Party — what was the date of that, 1942?

1943?

Robert W. Kenny:

1943, yes.

Felix Frankfurter:

Unless the Communist Party in those days as speaking for purpose for this case anything — innocent in relation to the Government of the United States but it hasn’t now as it perhaps shows in that has to relate the climate of opinion and in that period, was the climate of opinion in the (Inaudible) wouldn’t you?

Robert W. Kenny:

As we see it, Mr. Schneiderman is like the man who was discharged in the insane asylum.

He had a — said — this says I am sane and then he goes on and say, “I’ve got — I’ve got a certificate, it says, I’m sane, where is yours?”

In this way, the way we feel Schneiderman, he was — his conduct, his interpretation, and those books were adjudicated.

There’s been nothing shown in this record that he has ever changed his position.

The record actually show things like this that one man, a Government witness, name Sander, this attempt that was produced, produced by the Government and he said, “Yes I quit the Communist Party”, he says because Schneiderman was watering down Marxism-Leninism and that I want to bring socialism about right now, and Schneiderman is ordering it down I quit.

The Government also introduced a — an exhibit that showed that Schneiderman —

Felix Frankfurter:

Schneiderman was sought on communism, is that the idea?

Robert W. Kenny:

He fairly saw some communism.

Yes, he wanted it down in a proper figure.

And other time — another exhibit that the Government has used this trial is where Schneiderman and Mrs.Yates were preparing some syllabus for class studies in 1949 and they quote again this tenable conclusion language quoted with approval, and this is the language they were using to indoctrinate.

This very thing — this is the Government producing against it, and there again they quote the language of this Court.

Robert W. Kenny:

Now I think in —

Mr. Kenny, I maybe mistaken, but I thought that Schneiderman — in Schneiderman, the Court expressly disclaimed any need for determining what the Communist Party represented.

Robert W. Kenny:

That’s right.

They did.

And that all they decided in that case was that the Government had not met its burden of proof in showing that Schneiderman had advocated what the Government had said.

Robert W. Kenny:

That’s right.

Therefore, how does any adjudication as to the — either Schneiderman state of mind or as to the nature of the Communist Party operate here as a collateral estoppel.

Robert W. Kenny:

Well, the first part of your question, Mr. Justice Harlan is this.

The — the — we don’t contend that this Court ever did, ever make any finding one way or the other and hasn’t yet as to a connection between either the Government.

I think the various times would like to contend and lower courts have at various times and said we’ll take judicial notice that the Communist Party over quote advocates force and violence.

We don’t contend that that was decided in favor of the Communist Party in the Schneiderman case or that it has ever been decided by this Court the other way.

That — that question is on the Court.

But as to Schneiderman, his — the question was, could he, by his interpretation on these books, the same books that are used against him here, same books were used before, could he by his — did he by his interpretation on those books then had that his — was his state of mind demonstrative of the belief that he was not attached to the Constitution, that was on denaturalization.

On this trial, the question was, what was he — did he have the necessary intent to overthrow Government by force and violence.

And we say that as to Schneiderman, he has this personal relationship.

He’s been — he was told by this Court.

I think it was excellent language of — quote.

Quoted many times about how the change of the political temper is not to — not to affect his — his conduct.

And incidentally, what we’re confronted with now, we say that Schneiderman, the time may have changed, it may have changed back and forth and they have changed for perhaps quite violently in the Communist Party itself.

The time may changed, have changed but there’s never shown the Government has never shown anything that Schneiderman changed.

And we say that Schneiderman is entitled to that repost, that the adjudication gave him once, until such time, and there’s evidence showing new condition or so on, he has got his certificate that as long as he conducted himself in the way he had conducted himself when the Court approved of his conduct, that until The Government shows a change in condition, that is what we say is the collateral estoppel.

Felix Frankfurter:

Mr. Judge Kenny, I think I must agree with you on the first part that you would have the case.

The Communist Party is of course not a party before this Court.

This Court of course could make an adjudication with reference to that Party.

But in terms of estoppel like this one has to see what the issues were before the Court.

I holding that’s concede, what is it that you are worrying about in that case?

It would be if you fight to argue.

Except that it was charged, that Schneiderman, because of his allegiance to promotion of official responsibility or an organization which have these and these or believing that the overthrow of this Government by force and violence and therefore could not, in good faith take a note that he support the Constitution of the United States.

As to me, what Schneiderman case has decided if he decided anything?

Robert W. Kenny:

Yes.

Felix Frankfurter:

Those were the issues.

I don’t stand by this and precisely some occasion to this case, namely, whether believe this, allegiance to promotion of it is that you can call the Communist Party of the doctrine, that kind of views and towards all the older government.

And if it is, the fact that the Communist Party happens to be, for these are personalities which were not before us in which we’re involved to it, it seems to me the period of what was adjudicated eventually.

Unless to you, unless you’re insane or insane fellow.

I think the case is held against him because a man maybe certified an insane person in 1924, 1942, (Inaudible) you and are take conviction of that point.

Robert W. Kenny:

Well my point was that he had a certificate and the rest of us don’t.

That Schneiderman had — did litigate his question of his advocacy of force and violence.

That is —

Hugo L. Black:

Could you have done better if you use the fact that he had a certificate when his appendix was out?

Robert W. Kenny:

Well, that might be a little —

Hugo L. Black:

He might — he might be insane — he might be sane 20 years ago and might be insane now.

His certificate that you’re saying — that he was saying 20 years ago would be binding now, would it?

Robert W. Kenny:

No.

Well, in the absence of change —

Hugo L. Black:

Well, in adding dependency, aren’t you — its hard to suspect that you’d draw another one.

Felix Frankfurter:

And if Dennis applies to this case at the —

Robert W. Kenny:

— Yes.

Felix Frankfurter:

— verdict analysis because on concept before the 1943 it was adjudicated that his belief and action for — against the — not violate the Constitution of United States because to contemplates — contemplated force and violence to be overthrown.

Now on concept that the — that was so 13 years ago, it is so now.

And so, I could take, no matter what was litigated there is open to the Government to make a new showing — to make a new showing that there was contribution to further imply.

So I ask, what there is, that they could put out what they were that they were reviewing about the certificate.

Robert W. Kenny:

Well, we agree that the opportunity, it was open in the Government to make that new showing, and the Government did not take that opportunity because it failed to make that kind of a showing.

What — what you are saying is — or am I correct in this, that there is no evidence here in regard to Schneiderman’s participation and the effort to overthrow the Government, other than his membership in the Communist Party.

Robert W. Kenny:

That is correct.

There is —

William J. Brennan, Jr.:

And you — you’re arguing that the Government has undertaken which say that mere membership is sufficient to justify the conviction.

Robert W. Kenny:

Mere membership clause advocacy of Marxist-Leninist doctrine to lines that is the old advocacy in circulation of the old classics, plus membership and officership over a long period of time.

These are the inferences which we say the Government appeared on this to reach the conclusion of guilt.

And we say that in the First Amendment case, I can present them.

(Inaudible)

Robert W. Kenny:

I didn’t get the correct —

Hugo L. Black:

That is membership belong, the acceptance of the classical books of the Marxist-Leninist theory.

Robert W. Kenny:

Oh, I think they are — they could be different.

That is you could have membership and still not read their advocate or read the books.

So, I think it —

William J. Brennan, Jr.:

You could have a knowing membership or an understanding membership.

Robert W. Kenny:

I think that is right.

I think that The Government, and that’s why the Government, I think makes that as a second half of its proposition.

That is A, membership and officership, and then B, the reading of the books and advocacy of them.

Hugo L. Black:

We had a case a few years ago from California as I recall it on collateral estoppel and the Taxi case.

Have you decided that case?

Robert W. Kenny:

The last collateral estoppel case.

I remember was Paramount Pictures.

Hugo L. Black:

This was a criminal — this was a criminal case.

Robert W. Kenny:

Well that — that one I —

Hugo L. Black:

Or tax case.

Robert W. Kenny:

This — this I couldn’t help the Court on.

Thank you.

Ben Margolis:

Mr. Donovan.

Augustin Donovan:

Your Honors please.

In our opening brief and prior thereto on over a period of months, we made a very, very meticulous examination of this record, last came.

Each and every possible bit of evidence in a voluminous record that it could or did by inference or otherwise applied to our particular petitioners, Richmond and Connelly.

Richmond was the editor in San Francisco of the Daily People’s World and Connelly the editor of the Daily People’s World in Los Angeles.

They are members of the Communist Party and have been for many years.

And they as such have been minor officials here and there.

The newspaper, both editions are the sponsored papers of the Communist Party in California.

Now, we did in our opening brief, set forth everything that we could possibly find in this record and I’m sure we got it all because the Government found no difficulty except the few cases, where few spots where we will show that, a sort of it reflects more the other way, that we stated and discuss in detail, all of the possible and tenable inferences that might come or arise, or would have attack or approach any legal mind from the evidence of what they said, did or wrote.

It is admitted by the Government, on page 112 of its brief, did not one word in the newspaper ever advocated or innovated any advocacy of violence whatsoever.

We contend that not one bid evidence will respect to these two many in anyway, in first, violence or advocacy.

The only thing you can say about these men is, they are members of the Communist Party, they have been members of the Communist Party for many years.

Augustin Donovan:

There is not one item or evidence in these whole records, showing any act, deed, word written or spoken by them in any manner, shape or form can be labored into an advocacy of violence.

On the contrary, on the contrary, they wrote in their newspaper matters concerning the Taft-Hartley Act, labored bills, the recognition of colored people’s rights, the recognition of Mexican-Americans, the things that are matters of public consequence and interest.

Sometimes they are on the minor side.

I do not believe that is a crime to be on the short side of the things and be a sorry day in America when the only safe place in the world is on bandwagon.

And it seems to me, that outside of the general idea that they were members of the Communist Party.

And that the Communist Party proclaimed that was based on Marxism-Leninism, there is literally nothing in this record with respect to these defendant.

Now then, Communism as to be a member of the party, I assumed from the discussion is not primeval.

Now then, the question then becomes, if you construed Marxism-Leninism, in what way did you construe it?

It is capable as the record shows of many types of construction.

Some of them innocents and void of any invalidity or any force of violence, you might say that when you take these books applying to another country, in another year, almost a century ago, that could be interpretative in various ways, to select from that and take all of its context certain thoughts and ignore others, and put them in the United States of 50 or 60 years later and put them in the mind of somebody who said nothing and does nothing to in the case interpretation, you are going along way to create a case.

You are making a criminal case, you are not insisting on the tenable evidence rule.

That if rule is consider — that rule should be, I believe that is, we have discussed that fully in our brief, that if the evidences consisted with innocence or are tenable inference of innocence, can be drawn from the evidence as you go from once place along when the guy got county, testing it out, here then and the other.

If inferences of innocence can be interpreted in to each act, then you should never give in that case to jury for a guessing contest in these inflammatory times, in the case of that time, with all the atmosphere that existed at the time.

It seems to me that this record shows that these two petitioners, as we analyze it tonight, would do wish a very careful reading about briefs because we have intended to analyze every conceivable inference that could be drawn from the various testimony.

And in any matter either, directly or indirectly reflects upon our two defendants.

And I believe you will ask to change and come to the conclusion, that from that record, and in each instance and each reference to us, the tenable inference of innocence from any sort of things such as the conspiracy, can be concluded.

And having that in mind, it seems to me it was the duty of the trial Court, not to present this to a jury of the law under any conditions.

And to permit them to speculate on a set of facts or set of evidence of that kind of character.

Now then, there is no evidence in the record of this case, that either petitioner Richmond, petitioner Connelly, and were expressly advocated violent overthrow of our government.

There is no evidence of either of them ever said anything construable as advocacy of violent overthrow.

Putting aside the question, whether doctrine or Marxism-Leninism or in any sense equitable with advocacy of force and violence, there is no evidence connecting either petitioner with the study, teaching or advocacy of Marxism-Leninism.

There is no evidence in this case that either petitioner was present at any meeting or anyone else expressly advocated forceful overthrow of the Government, or said anything interpretable as so advocating or thought studied or are advocated the doctrines of Marxism-Leninism.

There is no evidence that the Daily People’s World, the newspaper would which petition were connected, ever contained one word, either express or implied advocating brought of revolution.

Of that, if this record is carefully analyzed, with respect to the fact, that this is a criminal procedure.

And this is a type of a case, that all know it, we have no such thing as a changer, it is a changer.

And finding of guilt goes to the third generation of this type of case.

No case requires greater chair, with respect to the evidence.

And no case requires a higher responsibility to keep from a jury, possible going to speculate on the set of facts, if the facts are such that tenable inferences of innocence can be drawn.

There are as the great duty of the trial judge.

This case should never have gone to this jury, particularly under those particular circumstances.

Augustin Donovan:

In the 1945, and again in ‘48, and I believe, clearly within the statute or beyond the statutes limitations, because it was not ‘48 indictment here with brought in about the last day of two of 730, 51.

So, we assume it was in ’48 prior to the beginning of the three year period.

The constitutional of the party of the Communist Party was adopted in 1945.

Section 2 whereas follows, inherence two of participation in the activity as if any click groups circle faction of party, was conscribes to subverts under mind, weaken or overdue any role of the institutions of America, American democracy whereby the majority the American people can maintain their right to determine their destinies in any degree shall be punished by means of expulsion.

Again in ’48, something along the same line, again two, Section 3 and Section 9, can be found on page 47 of Mr. Margolis brief, it negates in to this case.

Now, there is nothing here in this record, to show that Richmond and Connelly, did not accept that on its based value.

There is no evidence here if that was me or sham or pre chance, nothing of the kind.

It almost have to go to the same sort of reasoning that the boss had when he called Perkins in.

Perkins came in to the boss’s big office.

The carpets were very deep.

But Perkins walked there and very subserviently stood at the desk.

The boss says, Perkins, you have been with us 30 years.

You have done everything perfectly.

You have never been late.

You have never asked for overtime.

You even come here on your vacations and works.

You are accounts are perfect.

Perkins, what in the world are you up to anything?

And that sort of mind, and that sort of attempt, that viewing this evidence, that brings these laborite conclusions.

These conclusions are equally text out of the air.

To say that, this man intended certain things particularly with the limitation was placed in the Dennis Case as speedily as circumstances would permit, is just to walk the evidence out of all recognition.

It is a labored attempt to merely say, Communist Party, Marxism-Leninism, you are guilty.

There isn’t anything else here if you guilt the real responsible, cheerful, scrutinizing, screaming in the — check up on what is the rule in criminal cases for the accomplishment of a house of guilt.

This is a house of guilt fills on the foundation of sand.

It is a series of continuous, tenuous, constructions built one up on the other.

Assuming certain things in fair or facts, which are merely inferences from no facts and going round and round and round as our brief well outlined?

These men surely our members of the party.

Surely, the party was for Marxism-Leninism, but there you stop too also surely, Marxism-Leninism has many constructions.

As to place, geography, type, kind, what happen?

You betake the file if you want to, and you can find plenty of things from the Bible too.

Augustin Donovan:

And if you want to state it because of man, believes in the Bible, that you could not narrow that context, take a war or attempted war, or the various thing the Bible tells us practically everything, you could do equally well.

But when you are dealing with the security, the liberty, the life, the status, the condition of these men and all the children relations and — what have you?

We have to get to a pretty serious test of what is the criminal will claim for good evidence.

And where is the Judge of the trial Court, stepping and prevent the juries to go above the matter of pure speculations.

I have some time later for a bottom, I believe I have covered most of the matter I had in mind.

There was — we were criticized some what in the brief of the respondents, with respect having overlooked or insinuated.

There is something with respect to the evidence.

We find an examination that, one of our insinuations was a very unfortunate one.

We call attention to the fact, that one of the informal witnesses of the prosecution, have testified — I think it was Connelly was present at the witness, we just call attention to the fact, that Connelly’s record showed he was in Europe at the time.

He is a certified before the (Inaudible)

Another was that apparently Connelly, it was testified that Connelly had gone up in an elevator.

About half a dozen times in three years of the seventh floor, where there was a headquarters of the Communist Party in San Francisco.

At then — from that testimony alone, we have The Government saying, that he went there at night, that he went at the night some particular means.

And it was on the list, there is no such evidence whatsoever of any one of those evidence.

So, we do fill that, probably we are appropriate in making our allusions to the insufficiencies of the evidence.

Now, The Government has answered here some four pages with the respect of Richmond and Connelly, nothing more than a recitation of generally, the same old generally.

It was the member of the party, it was there three years, he belongs at the party, he was an officer here, he was an officer there.

But not one word, have may admit that not one word of advocacy of violence ever appeared on the newspaper of these two editors.

All that could be so in firm.

And they admit also, by their fail, to state in anyway, any portion of the evidence that would indicate either that we intended to be violent, advocated violence, ever said anything or did anything of a violent character or could be so construed.

It seems to me Your Honors that the question of the character, the texture, the substance of this particular record, with respect to these particular petitioners, is of such character that it should never have gone to the jury.

Earl Warren:

Mr. Monahan.

Philip R. Monahan:

May it please the Court.

The question arose as to the relationship between these petitioners, and the Senate petitioners.

While I believe that relationship will come out in more detail a little later, I think I can recapitulate all of the evidence in one sentence by saying that the Dennis defendants with a full star and the Five Star Generals, and these petitioners were the Lieutenant Generals and the Major Generals, with Brigadier of two.

But they are all in the same army, and they were all engaged in the same mission.

Earl Warren:

Mr. Monahan, would you mind referring to what Mr. Margolis said about, I believe you said four of them were — had held national office, few of them had held state office and a few of them had held county office, and a few of them had held no office.

Would you mind relating those — in according to those classifications with the Dennis group as long as you start along those lines.

Philip R. Monahan:

I would — I would differ Mr. Margolis in a couple of respect.

One of the petitioners whom he represents, petitioner Lima, has been a member of the National Committee.

Philip R. Monahan:

Another one, petitioner Yates, has been an ultimate member.

Do you want me to take the —

Earl Warren:

Well, I thought so because —

Philip R. Monahan:

— the petitioners that Mr. Margolis does not represent, there are three that he does not represent.

Earl Warren:

Well, I like to get all of them —

Philip R. Monahan:

All of them?

Earl Warren:

— because you said some of them were Four Star Generals, Lieutenant Generals —

Philip R. Monahan:

Yes, sir.

Earl Warren:

— and some Brigadiers.

And I just like to know who the Brigadiers were —

Philip R. Monahan:

I’m on it —

Earl Warren:

— and who the Lieutenant Generals?

Philip R. Monahan:

I wanted — I should really qualify what I said a minute ago.

There is one exception, petitioner Schneiderman I think is a Four Star General at least in any man’s language.

Earl Warren:

Yes.

Philip R. Monahan:

I just thought —

Earl Warren:

I just — I just want to know what their importance is.

Philip R. Monahan:

Petitioner Schneiderman is or has been — I don’t know what he is now, but at the time of the trial or sometime shortly before them, a member of the National Committee of the Communist Party.

And also a member of the inner group, known as the National Board, in addition of course to being, for some 15 or 20 years, the leader of the party in California.

Earl Warren:

That’s all in the record of course.

Robert W. Kenny:

Yes, sir.

Earl Warren:

Yes.

Philip R. Monahan:

He is the National — I mean the state chairman in California, in addition to those National Officers that I have mentioned.

Petitioner Yates, as I have mentioned, has been an ultimate member of National Committee.

And is or has been until recently, the organizational secretary, which is the number two office, the second in command right under Schneiderman.

Petitioner —

(Inaudible)

Philip R. Monahan:

State officer.

Petitioner Stack formally occupied the position which petitioner Yates occupied now namely, the Organizational Secretary of the Communist Party in California, the number two official of California.

Lima, as I mentioned, was formally a member of the National Committee, and is or has been a member of the California State Committee.

Philip R. Monahan:

Lambert is a member of the California State Committee and holds the very or has held the — until recently, the very important position of the state security head.

He is the man, he is — I might say the (Inaudible) of the Communist Party.

He is the man whose duty it is to find out what they refer to as stool pigeons in the party and get rid of them.

Petitioner Carlson was one time the organizer of the Wisconsin Communist Party.

And is or has been until recently, the organizer of the Los Angeles County of the Communist Party.

He was shifted suddenly on orders from the National Committee, he left California, went to Wisconsin for a few years to give the party a shot in the arm as one of the witnesses testified.

And then suddenly was transferred back to California.

As happened with so many of these persons who I believe, most or all or most whom are classified as professional revolutionists, which I will define a little bit later on from their — from party sources.

Petitioner Dorothy Healey Connelly whom incidentally I shall refer to by her maiden name Healey, to distinguish her from Phillip Connelly and because she was referred to by the name Healey throughout the trial, he is or has been until recently, the county chairman of Los Angeles County.

Petitioner Dobbs is or has been until recently, the organizational secretary, that is to say the number two official of the Communist Party of Los Angeles.

Petitioner Steinberg is or has been until recently the educational director, that highly important job of organizing the study groups for the Los Angeles County.

Petitioner Spector is or has been the division organizer of the Southern division of Los Angeles County.

I should explain that the division is the next level below the county.

Hugo L. Black:

That of a precinct?

Philip R. Monahan:

I think slightly more important than a precinct, sir.

In fact —

Hugo L. Black:

A little bit more important than a precinct permitted neither one of the big parties.

Philip R. Monahan:

There are two lower levels in the division, there’s the section and there are clubs.

Petitioner Kusnitz is or has been the division organizational secretary of the Midtown division of Los Angeles County.

In other words, at the same level as Spector, except he was second command of the third division.

Petitioner Fox is or has been the leader, the chairman of the highly important San Francisco Maritime Section.

Richmond —

Earl Warren:

Is that the head of the Party in San Francisco or is that —

Philip R. Monahan:

No, he’s — he is the head of the Maritime Section in San Francisco County.

Earl Warren:

How does that compare in hierarchy in —

Philip R. Monahan:

The — the section is below the division.

Earl Warren:

Section is below the division.

Philip R. Monahan:

Now, I speak generally, there — there are some counties in which there are no divisions.

The division is an intermediate level between the county and the section for certain counties only, the more populous counties.

Richmond is the editor in chief of the West Coast communist paper.

Philip R. Monahan:

The paper that corresponds the Daily Worker except it’s the West Coast, named, the Daily People’s World.

And petitioner Connelly is the Los Angeles editor of the People’s World.

That covers —

Earl Warren:

That’s all there is.

Philip R. Monahan:

Yes, sir.

Earl Warren:

Yes.

Thank you.

Hugo L. Black:

May I ask you —

Philip R. Monahan:

Yes, sir.

Hugo L. Black:

— assuming that the same charges were made against others, were made in these indictments.

And the others, you’d have to define as privates in the rear ranks.

Could there be anymore — any reason why they couldn’t be convicted besides that these are what we call Generals and sub-Generals?

Philip R. Monahan:

Well, if I were to pursue my figure sir, I would say that a newly — a newly inducted member would be a private.

Hugo L. Black:

But suppose — suppose one have been a member for five or 10 years involved in the Communist ticket —

Philip R. Monahan:

Just a —

Hugo L. Black:

Just a common ordinary everyday member.

Philip R. Monahan:

Just — would he be — would he be an officer?

Hugo L. Black:

Is there any reason why he wouldn’t be convicted under this kind of charge the same as these?

Philip R. Monahan:

It would depend upon the evidence, sir.

Hugo L. Black:

Sure.

Philip R. Monahan:

But — but briefly, there — there’d be the club — there’s a club in the section.