PENNSYLVANIA v. NELSON

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Argument of Frank F. Truscott

Chief Justice Earl Warren: Number 10, Commonwealth of Pennsylvania versus Steve Nelson.

Mr. Truscott.

Mr. Frank F. Truscott: If the Court pleases, this case comes before Your Honors on a certiorari to the Supreme Court, court of last appellate resort of Pennsylvania.

Now, we think that sole question involved is whether or not the Smith Act, the Federal Smith Act of 1940 is codified in the Federal Criminal Code of 1948, supercedes, nullifies state Sedition Act of Pennsylvania of 1919 is codified in the Criminal Code of Pennsylvania of 1939.

On October 17th, 1950, the grand jury of the Court of Quarter Sessions of Allegheny County, Pennsylvania found a true bill and indicted, one, Steve Nelson, alias Louis Evans, alias Hugo, alias Steve Mesarosh.

The motion was filed towards the indictment.

A hearing was heard on it.

The motion was dismissed.

The case came on for trial in December 4th, 1951.

The trial continued until January the 30th, 1952 on a verdict of guilty and all 12 counts of the indictment was rendered.

The motion for a new trial and the motion in arrest of judgment was filed, was heard by the court in bank.

The trial judge and the judge of Court of Allegheny County and the judge was imported from Westmoreland County to sit and to hear the motion.

The motions were dismissed.

Sentence was pronounced on the defendant, 20 years of imprisonment, cost $10,000 bond.

An appeal was taken to the Superior Court of Pennsylvania, which is our court of intermediate appeals, hearing appeals and all crimes with murder with some civil jurisdiction.

That court in the unanimous per curiam opinion affirmed the conviction in the lower court.

An appeal was taken to the Supreme Court of Pennsylvania under a statute, which gives them the right, really not a right as a matter of grace and where an unusual extraordinary question or constitutional questions is involved, an allocatur maybe granted to our Superior Court and that was done in this case.

Before the hearing, the Court decided to find opinion written by Justice Jones.

The lower court, the Superior Court should be reversed and that the indictment should be quashed.

A short concurring opinion was written by three justices, Chief Justice Stern, Justice Allen Stearne and Justice Chidsey.

The very vigorous dissenting opinion was written by Justice Bell.

Justice Musmanno did not sit because he was interested in the prosecution of the trial below.

Justice Arnold did not sit because he was a member of the Superior Court and the matter was passed upon in that Court.

Now, my reason for stating that I think the sole question involved is whether or not the Pennsylvania Sedition Act is superseded by the Smith Act is because the majority opinion in the Supreme Court states after reviewing what Justice Jones' concedes might be errors of the trial.

He says but with all -- with any and all of that, we need not now be concerned.

The appellant's principal and cogent contention is that the supreme -- that the Pennsylvania Sedition Act is suspended by operation of law upon the enactment by Congress by Title 1 of the Act of June the 28th, 1940 known as the Smith Act which defines sedition against the United States and prescribed punishments therefore.

If the Pennsylvania Act was so suspended, then the defendant's conviction cannot be sustained accordingly.

We have met at the outside -- outset with this question which was presented timely in the trial court reserves upon the Superior Court and has been stressed upon us.

And our opinion, the contention is well-founded.

Consequently, the indictment should imply.

Unknown Speaker: What happened that we should reverse this case?

Mr. Frank F. Truscott: I think it depends on, Your Honor, how you reversed it and what's you say in the reversal, of course, but that it probably goes back to the Supreme Court for the decision upon the merits of the case as of that time.

Now, the other three justices who filed this short concurring opinion, they said on the -- they said in the court's -- short concurring opinion, “We think this is a national question.”

And they ended their opinion by saying, “We assume that the question involved being obviously one of national importance will be finally determined -- be determined by the Supreme Court of the United States.”

So that indicates that they also thought that there was a sole question and even the dissenting opinion thought it was the sole question because Justice Bells starts out his opinion with -- Congress has never once said the Pennsylvania laws of any state or any state law on sedition is suspended or invalidated.

The Supreme Court of the United States has never said so.

If there could be any doubt on the question and in my opinion, there is none, it should certainly not be resolved in favor of freeing one of the top leaders in the Communist Party in America who has been convicted of plotting the destruction of our country.

So as I say practically, all parties agreed even the respondent in his brief feels that that is the question.

I think it is also important that we should have before us just what is said in the indictment.

I'm quoting from page 6 of my brief on the statement of facts, “Indictment charged and really is that the defendant, Steve Nelson, encouraged person as to engage in conduct with a view to overthrowing and destroying by force the government of Pennsylvania and of the United States.

That he published and distributed printed matter in encouraging persons to engage in conduct with a view to overthrowing and destroying by force, the government of Pennsylvania and of the United States.”

Indictment further charge specifically with respect to some of the matters that had been printed by and distributed by, setting forth in haec verba what was contained in the material.

The dictatorship of the proletariat cannot arise by peaceful development, but can arise only as a result of smashing the bourgeois state machine and bourgeois army.

This Soviet Organization alone is capable of smashing and finally destroying the bourgeois and bureaucratic and the judicial process and this can be done only by revolution.

The dictatorship of the proletariat cannot arise as the result of the peaceful development of the bourgeois society and bourgeois democracy.

It can arise only as the result of the smashing of the bourgeois state machine, the bourgeois army, the bourgeois bureaucratic machine and the bourgeois police.

The society organization and the State alone is capable of immediately and effectively smashing and finally destroying the old, the bourgeois bureaucratic and the judicial apparatus.

The bourgeois state can only be put an end to by a revolution.

The replacement of the bourgeois by proletarian state is impossible without a violent revolution.

The Communists everywhere support every revolutionary movement against existing social and political order of things.

The Communist openly declared that their ends can be attained only by the forcible overthrow of all existing social conditions that the ruling classes tremble at a Communist revolution.

Hence, the transition from capitalism to socialism and deliberation of the working class in (Inaudible) capitalism cannot be affected by slow changes, by reforms, but only by a qualitative change in the capital system by a revolution.

The proletariat revolution is -- is impossible without the forcible destruction of the bourgeois state machine and substitution for it of a new one.

Now, there were many others.

These are just examples of what were the allegations of the indictment with respect to the specific printed material that was distributed or discharged, distributed, that the respondent distributed.

As I say this title of the case tool about two months, 2700 pages of testimony were taken which has been reduced in our printed record to about 1400.

It detailed many of the activities of the respondent, the idea of showing the intent to which these things were distributed.But as I say, I don't think that we are concerned here with that because I think all parties have agreed that the only question is whether there is one of supersession, which was submitted to be answered by this Court.

Now, I think probably because there has been a great deal said both in the opinion of the Learned Justice below and in the brief of the respondent in this case about whether or not a State can pass the Sedition Act proscribing the advocacy of the overthrow of the government of the United States only as distinguished in the State of Pennsylvania although Your Honors will note that in the excerpts that I read from the indictment that Pennsylvania as well as the United States were part of the objects of the advocacy of overthrow by force and violence in this case.

And since the order of the court below was the quashing of the indictment as distinguished from a motion and arrest of judgment where all of the case comes into effect, we probably maybe dealing with the sole question of these averments of the indictment which do specifically aver the overthrow of Pennsylvania, the Government of Pennsylvania as well as that of the United States.

But be that as it may, we are confronted to some extent as to whether or not a State can proscribe against Acts of Sedition such as our -- instigated here.

Can a State make it a crime to commit acts in its territory, which advocates the overthrow of the government of the United States?

Now, Your Honors, it had recently a number of these cases before you.

There's hardly as single case in which some justice is now sitting upon this bench has not made some reference in an opinion that could be quoted back with respect to this situation that we have facing us here today.

But I want to refer, Your Honors, to three important cases that I think that are all controlling in this situation.

And the first one is the case of Gitlow against New York.

There, there was a statute somewhat the same as the statute involved in this case with the distinction that there, there was to be an overthrowing or overturning of the organized government by force and violence.

Here, it was the overthrowing of Pennsylvania and the government of the United States.

The Gitlow case, after conviction and appeals, finally reach this Court.

Justice Sanford said in his opinion, “And the State may penalize utterances which openly advocate the overthrow of the representative and the constitutional form of government of the United States and the several States by violence or other unlawful meanings.”

In short, this freedom (does not deprive a State of the primary and essential right of self-preservation which so long as human governments endure, they cannot be denied).

Now, there was a similar statute in California.

That statute made as to felony for anybody to become a member of an organization which advocated unlawful acts of force and violence as a means of accomplishing in -- a change in industrial ownership or any political change.

This Court said in that case that a state in the exercise of its police power may punish those who abuse this freedom by utterances and amicable to the public welfare pending to incite the crime, disturb the public peace or endanger the foundations of organized government and threaten its overthrow by unlawful means is not open to question.

Now, in those two cases, there has been some aspersion cast upon them in the -- and particularly in the opinion of the Learned Justice below to the effect that there was not at the time that they were decided any federal Act in effect and that is true.

The Sedition Act of 1918 had been repealed in 1921.

But with respect to those two cases, the utterances were charged to have been made on November the 28th, 1919 and July the 5th, 1919.

And at the time that they were charged to have been made, the Sedition Act was still in effect and I submit that if the state law had been nullified, this Court would not have confirmed the convictions in those cases.

But there is a case that was decided by this Court and which there can be absolutely no question about a federal Act being in full force in effect at the time that the conviction was held and at the time that the appeal was heard in this Court.

In that case is Gilbert against Minnesota.

In Gilbert against Minnesota, there was a Minnesota statute making it as a misdemeanor to advocate that citizens of the State should not aid or assist the United States in prosecuting or carrying on a war.

At the time that Gilbert was convicted, the Federal Espionage Act was in full force in effect.

It was argued in the lower court.

It was argued impractically to every court and it was presented in this Court that the Federal Espionage Act which prohibited the same Acts of the Minnesota Act prohibited superseded and preempted and occupied the field so that the Minnesota Act did not have any force or -- or effect.

This Court held, the statute indeed maybe supported as a simple exertion of the police power to preserve the peace of the State.

It's simply a local police major aimed to suppress a species of seditious speech which the legislature of the State has found objectionable.

On such occasions, feeling usually runs high and is impetuous.

There is a prompting to violence and when violence has once yielded too, the Board can be quelled.

Tragedies maybe enacted to produce such a result or the danger of it is a proper exercise of the power of the State.

Now, I'm not going to bore Your Honors with any more quotations from your cases.

Chief Justice Jones and Chief Justice Hughes said in the De Jonge against Oregon that the States were entitled to protect themselves.

And in Stromberg against California, he said there was absolutely no question of what the States could do and pass such Acts.

Now, these particular Sedition Act of Pennsylvania, I should like to call also Your Honors attention, has been constitutional by our Supreme Court in three different cases, the Widowich case, the Zima case, and the Lazar case.

And in two of those cases, they are brought to the attention of this Court and one, a writ of certiorari was denied and in another, the appeal was dismissed.

There had been similar statutes.

In other States, that had been held constitutional by the Supreme Court of those States.

One of the cases is State against (Inaudible) of New Jersey and the other is the recent case in the State of New Hampshire of Nelson against Wyman.

Now, having demonstrated I believe that by the decisions of this Court and several decisions of our state courts that the State has the power to enact a Sedition Act of this common.

I should now like to submit to Your Honors that in this instant case, there was no intention on the part of Congress by the passage of the Smith Act, the superseded or preemptive field in which the Sedition Acts operate on the part of States.

First of all, these Sedition Acts in the states and territories are penal laws.

They are laws for the punishment of conduct or an act in those particular territories.

This is not the case like the Cloverleaf case with the -- with the regulation with respect to Butter.

It's not a case like the Allen-Bradley Local of Labor Relations.

It's not a case of regulations with respect to platforms on the rear part of railroads.

There is no Act such as the Taft-Hartley Act involved of the Labor Relations Act or the Interstate Commerce Act involved.

These are penal laws of the state and of the territory has by the duly elected representatives of the people of those States.

They have no regulations of any kind, no registration mandates, nothing that could conflict.

They are merely a part of the criminal justice of each state and each territory where they had been passed.

I think the brief of the Solicitor General of the Government covers that subject very well.

He says, “These are ordinarily -- ordinary criminal statutes which proscribe completely substantive evils, certain types of conduct and create a substantive crime independently of any administrative or statutory regulation.

In this respect, they are like statutes punishing murder, robbery or kidnapping which are crimes against those state and nation where every elements giving rise to federal jurisdiction of prison.

Statutes of the type and issues do not contemplate any scheme of regulation.

They do not establish any administrative agency with power to issue rules, orders or regulations.

They are not registration statutes with the tenant administrative requirement.

There is, therefore, no possibility of conflict between the requirements of federal and state administrative regulations coming from this statute.

The state sedition laws are ordinarily -- ordinary penal laws which have as their object of protection of the established government of the State.

Now, very early, there was a case of Cohens against West Virginia in which Congress passed an Act permitting lottery tickets particularly here in the District of Columbia to finance certain situations.

The man was arrested in Virginia because the Virginia law prohibited to the lottery -- the lotteries.

Chief Justice Marshall said that to interfere with the penal laws of the State where they are not leveled against the legitimate powers of union that have for their sole object, the internal government and countries of very serious nature.

It must be taken deliberately and the intention would be clearly and unequivocally expressed.

An Act such as that under consideration ought not we think to be so considered is to imply this intention unless its provisions were such as to render the construction inevitable.

And then there was a very fine dissertation on crime by Mr. Justice Frankfurter in Malinski against New York, in which Justice Frankfurter says, that as far as the criminal justice is concerned, it was with the States.

It was reserved to the States.

And only so much of it was given to the Federal Government as it was necessary for it to efficaciously carry on its work as a government.

And that remain so until the passage of the Fourteenth Amendment in 1868.

And after the passage of that, it still remained that the enforcement of the criminal law was predominantly with the States.

There were some restrictions in the making and the enforcement placed upon it by the Fourteenth Amendment.

In fact, this is apart from permitting Congress to use criminal sanctions as a means for carrying into execution powers granted it, the Constitution left the domain of the criminal justice to the States.

And again, Rochin against California in 342 U.S., he says, “In our federal system, the administration of the criminal justice is predominantly committed to the care of the States.

The power to define crimes belongs to Congress only as an appropriate means of carrying into execution its limited grant of legislative powers.”

Broadly speaking, crimes in the United States or what the laws of the individual States make them subject to the limitations of Article I Section 10, Clause 1 of the original Constitution prohibiting bills of attainder and ex post facto laws and of the Thirteenth and Fourteenth Amendments.

I think one way that we can arrive and most surely at the intention of Congress in this case is to look at the legislative history of a case.

Look at the hearings and let me say in passing that in all -- our investigation shows that there are 42 States, Alaska and Hawaii that have Acts similar to this Act that's involved in this case in Pennsylvania.

Now, they're not all known as Sedition Acts.

But the majority of them by a good bit are known as Sedition Acts.

There are some that are known as Syndicalism acts and some that are known as Anarchy acts.But in all, there are 42 States in Hawaii and Alaska.

In the subcommittee hearings in Congress, there's a great awareness that shown of the state sedition acts.

In fact, one of the witnesses in the subcommittee hearing testified that the Smith Act was modeled after the New York State Act and he mentioned that the Gitlow case had been passed upon by this Court and that the New York State Act had been held constitutional.

In the debates, reference was frequently made to the state sedition acts.

They knew that they were in existence.

And when the sponsor was interrogated on the floor of Congress concerning the discrepancy between the penalty and some of the state acts and they proposed for that, they answer to the interrogation by saying, “This bill has nothing whatever to do with the state acts.”

That's the 84th Congressional Record on page 10,452.

Then, there had been committees of Congress that had been appointed that reported with respect to certain activities of individuals and they noted in a report filed in March of 1950 and in a report filed in August of 1950 that the Sedition acts were in full force in effect and they spoke about the activity of the state legislatures with respect to these Acts.

It would have been a great surprise to them.

Congress had it been brought to their attention that for 10 years these Acts that they were reporting on had been nullified by an Act which they passed back in the year of 1940, the Smith Act.

And then there's the title of the Act itself.

Now, as a part of the Federal Criminal Code, this Title 18, Section 32 and 31, “Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.”

Certainly, that language is a specific statement to the effect that the state laws are at least not to be nullified by influence.

Nothing in this title is to take away or impair.

Now, in our Supreme Court, quash the indictment in this case by a decision of one judge half-heartedly joined in by three because they showed some misgiving saying that it ought to be decided by this Court.

And one judge very vigorously dissented and there had been three court -- three judges in lower court in an appellate capacity and seven judges on our Superior Court, all 11 of those judges held that there was no supersession in this case.

And as I say only one and three half-heartedly joining in needless to say the Justice Department, that I happened to heeded that time, was somewhat shocked.

It was enacted by our own legislature with one justice, three joining in, nullifying our own Act.

And I decided immediately that a petition for a rehearing should be filed and I did.

And I attached to that a letter that I had received from the author of this Act, Mr. Representative Smith himself, and so it is a part of the record in this case.

And Justice Bell has included it in his opinion when the petition for the rehearing denied.

Honorable Frank Truscott, Attorney General of Pennsylvania.

Justice Felix Frankfurter: What is that you're reading?

Mr. Frank F. Truscott: I'm reading the letter that the sponsor, that the author of this bill wrote to me which I attached to the petition for a rehearing in our Supreme Court.

And it's a part of the opinion -- the dissenting opinion in this case.

Honorable Frank Truscott, Attorney General of Pennsylvania, Department of Justice Harrisburg, Pennsylvania, “Dear Mr. Attorney General.

As I am the author of the Federal Act in question, known as the Smith Act, I am deeply disturbed by the implications of this decision.

May I say that when I read this opinion, it was the first intimation, I have ever had either in the preparation of the Act in the hearings before the Judiciary Committee in the debates, in the House or any subsequent development that Congress ever had the famous notion of nullifying the concurrent jurisdiction of the respecting -- respective sovereign states to pursue also their own prosecution for subversive activities.

It would be a severe handicap to the successful stamping out subversive activities if no state authority were permitted to assist in the elimination of this evil or to protect its own sovereignty.

The whole tenor and purpose of the Smith Act was to eliminate subversive activities, not to a system, which letter might well be the effect of the decision in the case of Commonwealth against Nelson.

I hope you will not think me presumptuous in taking this matter up with you, but you can readily understand how deeply disturbed I am about it.

Sincerely yours, Howard W.Smith.”

I have only to point out in connection with that, that this is not an ex post facto letter.

This is a letter, which says that, it's the first intimation I have, ever had.

Now, he's a former judge, highly respected judge, he represents the Eighth District and has for a long time, a grand public servant and I think one of our most highly thought of Congressman, writes that letter that this is the first intimation that he ever had that that Act might be superseded.

Now, there are other States that have this problem.

Ohio, it has an Act, which has a Commission to ascertain who is advocating the overthrow of the Government by force and violence.

One man defied the Commission and he cited the case of Commonwealth against Nelson, decided by the Pennsylvania Supreme Court and said the Act it didn't -- nullified because the Smith Act that preempted the field, that the higher court in Ohio, followed the dissenting opinion of Justice Bell in this case and said they would not follow Justice Jones' opinion or the concurring opinion.

Then, as the State of New Hampshire, Attorney General of New Hampshire some time here, so I'll only spend just one minute on that.

But the Supreme Court of the State of New Hampshire said, when a declaratory judgment, petition was filed to declare the -- their Act which is very similar to the Pennsylvania Act, void the enactment by Congress of the Smith Act, which defines and penalizes sedition and subversive activities against the governments of the United States, the States or any of their subdivisions, does not preclude state legislation on the same subject matter.

Insofar as Pennsylvania against Nelson, a 104 A.2d 133, gives support to the proposition that it does, we do not adopt it.

Two States have found for the opposite from what the learned opinion of Justice Jones, the -- the opposite conclusion that Justice Jones comes to.

Now, just one -- two brief words about the opinion in the court below.

It is -- it is seems to be what is bolstered by four main propositions.

One is Section 4 Article IV of the Constitution.

The other is the Hines-Davidowitz case which was decided by this Court not too long ago.

The Gilbert-Gitlow and Whitney cases, which are distinguished a double jeopardy because after the conviction in this case, it is the truth.

In fact, the man was prosecuted in the Federal District Court and they are likewise convicted.

And also Justice Jones feels that they would be a tremendous hampering of the federal authorities.

Now, as to Section 4, Article IV of the Constitution, it reads as follows, the United States shall not -- shall guarantee that every State in this union or republican form of government shall protect each of them against the invasion and on application of the legislature or the executive when the legislature cannot be convened against domestic violence.

Learned Justice below says, federal preemption could hardly be more clearly indicated.

Well, of course, as the famous case Luther against Borden holds, there is no invasion in -- threatened in this case.

The United States shall guarantee a republican form of government shall protect each of them against invasion.

There's no question about invasion and about and on application of the legislature or the executive against domestic violence.

Well, it seems to me that it's a foregone conclusion if the legislature or the executive has to make an application to the Federal Government for assistance where there's domestic violence, certainly, it must be assumed that they're authorized to cope with it, themselves, until it gets out of hand.

And I think that the Learned Justice below went quite for our appeal when he thought that that length, of some credence to the fact that the appeal had been preempted.

Now, the Hines-Davidowitz case, that was the case that came up from the Commonwealth of Pennsylvania too, that's relied on very heavily in the court below and it's relied upon by my friend most heavily, he says that there are two cases that governed this.

Number one is the Hines against Davidowitz.

But Hines against Davidowitz was an entirely different proposition.

Hines against Davidowitz was enact that we had in the Commonwealth of Pennsylvania that compelled the registration of aliens.

And there was a Federal Act that compelled the registration of aliens, and as this Court said, here is an all embracing far reaching integrated system for the registration of aliens.

And it has an international application.

We think that that is purely a national subject, a subject which Congress should be allowed alone to deal with and therefore, we feel that the field has been preempted.

Now, with respect to that, Hines against Davidowitz has been absolutely limited to the facts and narrowed down Justice Frankfurter said in the case, which I've quoted on page 48 of my brief.

In the Hines case, a federal system that the alien registration was held to supersede a state system of -- of registration, but there, we were dealing with the problem which had an impact on the general field of foreign relations.

Here, we are dealing with the letter type of problem, which is the historic problem of whether or not the States can legislate with respect to public safety and order and the use of their streets and highways.

And then it was distinguished by his Honor Justice -- Mr. Justice Douglas, in the Allen-Bradley Local case and said that they are the international relations aspect of the case, limited that case, (Inaudible)

They should -- no one should think that the States had lost their right of police power in matters where there was not that implication.

Now, I see have a bit few minutes left of my time.

I've awarded 15 minutes of my time to my colleague to respond and answer after the respondent's attorney spoken.

I just want to say that the four votings of the court below that enforcement by the States of their Sedition acts would interfere with the federal enforcement.

It seemed to be absolutely unfounded.

Two people in the United States have probably know more about that than any two other individuals or the Solicitor General and the Attorney General.

And they both, one says unmistakably in his brief, that for 15 years, the State have operated alongside of the Federal Government in the enforcement of these Acts and that there's been no difficulty and that they've gone down through the stress of time of two wars.

And that they have had no -- no difficulty at all and they think that the States should cooperate with the Federal Government.

And he says that the assumption in the court below is absolutely unfounded.

I just want to say one more word, we have the city police, we have the bureau police, and we have the township police, we have the sheriff, we have the right of any city executive to call upon the governor from Malaysia.

We have all of the facilities for the enforcement.If there is a crime being hatched where there might be a great destruction of property, a great loss of life, the police are present to detect it.

With our national government, we have no such facility.

The FBI which is very efficient says itself, that's it's only an information gathering agency.

It isn't spread through out the entire 48 States of the union.

If Congress ever intended to take away from the States their right of self-preservation, certainly, they would have set up some kind of machinery to cope with the situation that they did not do.

Now, with respect to the element of punishment on this case, it can be much more serious in some cases than it can in others.

We are highly industrialized community to hatch out and -- and encourage people to overthrow the government of Pennsylvania or the United States by force and violence in the plans that we have in the Pittsburg area and the Philadelphia area, known as the Arsenal of Democracy might be far more serious than if it took place somewhere in the Black Hills of North Dakota.

Therefore, a sentence in Pennsylvania were the seriousness of the crime could be felt and where effect of it would be a far more serious than with the elsewhere might call for a more serious sense.

And certainly, there should be no uniformity in a matter of this kind.

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Argument of Herbert S. Thatcher

Chief Justice Earl Warren: Number 10, Commonwealth of Pennsylvania versus Steve Nelson.

Mr. Thatcher.

Mr. Herbert S. Thatcher: Your Honor, I think that the Attorney General of New Hampshire is to be next.

Chief Justice Earl Warren: Well, oh, is that so?

Yes.

Mr. Attorney General, you may proceed.

I --

Argument of Louis C. Wyman

Mr. Louis C. Wyman: -- to Your Honor.

Chief Justice Earl Warren: -- I didn't have your name here at the moment.

Mr. Louis C. Wyman: May it please the Court.

Before proceeding with argument in this case, I would like to explain one or two of the reasons why I filed a brief amicus in this case and ultimately requested time to be heard orally.

New Hampshire was requested to do this by the Commonwealth of Pennsylvania.

As Attorney General of New Hampshire, I have been in charge of a legislative investigation as the delegated committee, so to speak, for the last two years, to determine whether there were any violations of the Subversive Activities Act of our State, and to report to the general court.

In the process of conducting that investigation, one of the witnesses that was called, filed a petition with our Supreme Court asking that the subversive activities (Inaudible) New Hampshire of 1951 be declared unconstitutional.

That Act is patented after the Maryland over law and is very similar to the acts in perhaps 15 of the States.

It is also worthy of note in connection with this brief that has been filed amicus, that every Attorney General in the United States, in every State which has a law of any proportion in the field of subversive activities has joined in this brief with the exception of the Attorney General of Texas, who filed his own briefs which argues very much, I believe, the same propositions as are contained in the brief for the State of New Hampshire.

Justice Felix Frankfurter: I suppose that if I make the duty of Attorney General is to decide to state a law as it is?

Mr. Louis C. Wyman: I believe that's true, Your Honor.

But in the --

Justice Hugo L. Black: How many States are represented here?

Mr. Louis C. Wyman: There are 30 States, Your Honor.

And it's not appearing on the face of the brief by the States of California, Oregon, Kentucky, and Vermont, who filed supplementary statements with the clerk requesting to be known as parties to this brief.

There are approximately 17, I believe, in the States that do not have broad subversive activities laws in the country at the present time.

Our Supreme Court in New Hampshire --

Justice Felix Frankfurter: May I have a moment?

Mr. Louis C. Wyman: Yes, sir.

Justice Felix Frankfurter: They use the word comprehensive (Inaudible)

Mr. Louis C. Wyman: I believe, Your Honor, because of the inexplicable relationship in our law between advocacy of overthrow of the Federal Government and or the State of New Hampshire that it may very well, regardless of its separability provisions, involve the entire statute.

That is a question which ultimately would have to be passed upon by our Court.

Justice Felix Frankfurter: But it will be in court.

Mr. Louis C. Wyman: Yes, sir.

In the argument of the --

Justice Felix Frankfurter: He'd be given this request of the -- would you straighten out the (Inaudible) through the scope of the -- in addition to prohibition of your law.

Mr. Louis C. Wyman: Yes, Your Honor.

I don't know if I can state it in a sentence or two, but very briefly, our law -- our law is very broad.

It is aimed at subversive advocacy.

That is the acts themselves, either teaching, aiding or abetting the actual overthrow of the Government of the Federal Government or of the State of New Hampshire.

It is also aimed at subversive organizations as such which are defined as organizations which have for one of their purposes, the overthrow of the Government of either by force and violence, if necessary.

And that it is also aimed at persons, who are members in such organizations, but at all times only including the element of scienter.

They must be members knowing of the subversive purpose and that is a question of fact for the jury.Our Supreme Court on January, I believe, 25th, 1954, held our state statute constitutional.

And on that day, they had filed with it the copy of Justice Jones' opinion in the principal case and a copy of Justice Bell's dissenting opinion, and a supplemental memorandum by counsel for the original petitioner in New Hampshire.

And a supplemental memorandum was filed by myself.And when they decided the case on April 30th of 1954, they had fully explored the question of whether or not our law in New Hampshire was superseded by, in their opinion, the Smith Act.

And they held flatly, that insofar as the opinion of the Supreme Court of Pennsylvania purported to say that the Smith Act superseded state law that “We do not adopt it.”

Our Court in New Hampshire has quite a reputation since the days of Justice Jeremiah Smith and Chief Justice (Inaudible), with an outstanding court.

I think it worthy of mention that there is a flat disagreement between the Supreme Court of New Hampshire, after full consideration of the issues in the Highest Court of Pennsylvania in respect to this issue of supersession.

Justice Harold Burton: When were those of the dates about (Inaudible)

Mr. Louis C. Wyman: There were state laws, Your Honor, in existence before the Smith Act and the greater body of them, I believe, came into effect, subsequent to the Smith Act although, there were a very substantial body of laws not as comprehensive as the overact in Maryland which were in effect after World War I in respect to sedition and espionage in the States.

Justice Felix Frankfurter: And given the date, now on page 15 of your brief, is that it?

Mr. Louis C. Wyman: Yes, Your Honor.

Justice Harold Burton: Although the best (Inaudible)

Mr. Louis C. Wyman: Those are the --

Justice Harold Burton: (Inaudible)

Mr. Louis C. Wyman: Well, Your Honor, the law in the principal case is prior to 1940.

The law in Pennsylvania in the principal case was enacted prior to 1940.

Justice Harold Burton: They are substantial.

Mr. Louis C. Wyman: Yes, Your Honor.

I believe there were quite a few, as listed and set forth in (Inaudible) on the States in subversion.

I do not have the various times and dates.

But none of those laws, I believe, were quite as comprehensive as this overact in Maryland, which was a very carefully prepared statute and has been tested in several of the States and found constitutional.

Justice Harold Burton: (Inaudible)

Mr. Louis C. Wyman: We believe that there is only one very narrow issue in this case.

And that that issue is whether or not the Smith Act in 1940 superseded state laws.

Congress didn't say so in the Smith Act.

That much is clear.

There is no expressed supersession.

So that the issue is whether by implication, this Court is of the opinion that either there is such a conflict between state law and the Smith Act, or such an occupation of the field by Congress in the Smith Act as to require that the Court hold that state laws are superseded.

I believe it is also very important to point out to you what we do not believe this case involves.

This case involves no issue of freedom of speech, no issue of the First Amendment, freedom of the press.

No issue of whether Steve Nelson had a fair trial below.

No issue of any civil rights and no issue of whether clear and present danger is a question for the Court or a question for the jury, because the highest Court in Pennsylvania said, with all those questions in respect to this trial, we need not now be concerned.

Because if the principal and cultured contention of the petitioner that there has been supersession is true, we are out of business in Pennsylvania and we so hope.

And that's what the Pennsylvania Supreme Court held.

Justice Felix Frankfurter: In short, we must assume the purpose of the present case that if the Congress of the United States was to repeal the Smith Act on that means that January it would have been able to come in.

Is this true?

I think that still could still turn on the Board.

That the validity of the statute or right to publicity, we must assume that one of these Acts, in this case wouldn't be here in this way.

Mr. Louis C. Wyman: Not in this way, Your Honor.

No.

And in that regard, I think it's important too to stress that all these cases in Massachusetts, the Hood case, the (Inaudible) case, the (Inaudible) case in Kentucky which occupy a recitation of facts in one of the amici briefs of some thirty five and a half pages are completely irrelevant to the single determination before the Court in this case.

And I believe also that the exaggerated misrepresentations of facts which are made in respect to what those cases might have involved or what I might have done in New Hampshire, which in some instances are almost libelous, should not occupy any of my time here before you, because that is in a field which has nothing to do with the issue in the case at bar which is very narrow.

Justice Felix Frankfurter: Has the matter of the three (Inaudible)

Mr. Louis C. Wyman: I do not know, Your Honor.

I do not believe it has.

I think there is a petition by all these (Inaudible) in Massachusetts which is being held up by the Massachusetts Supreme Court pending the determination of the issue of supersession in this case.

Justice Tom C. Clark: I believe we have held and come to meet this exercise that the -- the purpose of the matter deals with recovery if to be considered as by just some way to connect with the supersession?

Mr. Louis C. Wyman: Oh, yes, Your Honor.

I think that's true.

Justice Tom C. Clark: To that extent, I would suppose that the fact that this is in the field of (Inaudible) or whatever it is, but not to be charged to be fully irrelevant.

Mr. Louis C. Wyman: No, not at all.

The purpose of Congress in respect of the Smith Act and the evil which the Smith Act was directed toward is, of course, very important in this field.

But all of these extraneous matters which tend to present factual situations in an atmosphere, calculated to cause the reader to feel that there is involved the (Inaudible) which is the product of hysteria and which seeks to enjoin conformity upon all the people in the country are entirely irrelevant to the issue.

Justice Hugo L. Black: Why would they -- why would they be irrelevant, they kept things true if they feel that much of the activity or the survey of the law is supposes to regulate.

It happened to be appealed in which the Government has provided special protection in the Constitution.

Mr. Louis C. Wyman: Well, I believe, Your Honor, they're irrelevant for this reason.Because the Supreme Court of Pennsylvania has indicated in the first three or four pages of its opinion has -- it was printed in the appendix of the certiorari in this case.

That they do not need to be concerned with those particular questions because they rule solely on the narrow question of supersession.

And that's why we have the States are here because this doubt about whether there was supersession raised by these two conflicting decisions cast a cloud over all of the subversive activities laws of all of the States that have them.

And many proceedings are being held up at the present time pending a clarification of this issue by this Court.

If this Court rules that there has been supersession then, of course, that is the end of the matter.But if this Court rules that there has not been supersession, the question of whether rights or civil rights, or civil liberties, or due process or anything else, has been violated in regard the Steve Nelson goes back to Pennsylvania for determination by the Pennsylvania Supreme Court.

And there is ample indication in the record that the Pennsylvania Supreme Court is quite ready to deal with those questions.

Justice Hugo L. Black: So, out of the question now is that -- it's about -- that is my mine that we had some years ago a case related before in Alabama.

Mr. Louis C. Wyman: Yes, sir.

Justice Hugo L. Black: And then we had again, a question relating to the nationwide registration law.

And we have there it just happened to get them in the field of the -- of the First Amendment privilege.

Mr. Louis C. Wyman: Yes, sir.

That is true.

Justice Hugo L. Black: Would you say that those differences are wholly irrelevant here?

Mr. Louis C. Wyman: I believe that they are, Your Honor, except in considering whether or not there is a conflict or an occupation in the field by Congress.

And I believe that that question involves the question of whether Congress here was legislating in pursuance to a power which has been given to the Federal Government under the Constitution.

And that is one of the questions in regard to interpretation that will be reached by this Court in the event that the Court is of the opinion that the legislative history of the Smith Act is silent on the question of intention.

And in that regard, Your Honor, I believe that all of the references to the Internal Security Act of 1950, and the Communist Control Act of 1954, are not controlling in this matter because the question is what was Congress' intent in 1940?

And the matter of the Internal Security Act of 1950, while it is contended reflects upon congressional intent in 1940, in a retroactive sense over some 10 sessions of Congress.

In Albertson versus Millard was faced by Judge Simmons in justice kind of way and that matter has been always returned for further disposition by the Michigan court in answer to questions raised under its own law.

But in this particular case, the legislative history of the Smith Act is not silent.

It's very clear.

I don't suppose that it could be anymore clearer than to have had Congressman may ask Congressman Smith on the debates on the house floor.

And those are quite competent in, I believe, interpreting and reaching a post mortem reconstruction of congressional intention, whether or not the difference in penalty's involved.

Whether there was any difference in penalties between this Act and the various state laws.

And Congressman Smith's answer is set forth at page 11 of my brief was this law.

It has nothing to do with state laws.

It's perfectly clear also that when the House Judiciary Committee was considering this bill, they had specific questioning in regard to the case of Gitlow versus New York.

In the case of Gitlow versus New York, quoted with approval, the reasoning of the Court in Gilbert versus Minnesota, which said that the State has a perfect right in its exercise of its essential basic right of self-preservation to make efforts to overthrow the Federal Government its own crime.

And that, of course, is all that has been done in this case by these decisions.

If the question should be reached, assuming for purposes of argument, that this Court feels that congressional intention is not evidenced by these legislative debates, as to whether there was supersession by implication, then, I would respectfully contend it must be found in order to invoke the supremacy clause of the Federal Constitution.

That there was a law enacted in pursuance to a power granted to the States under the Federal Constitution.

And I have difficulty in finding where there is such a delegation in the Constitution itself.

In Article I, Section 8, there is no such express power.

This is not a Commerce Clause decision.

This is not a question of foreign policy entrusted to the Federal Government.

In Article 4, Section 4 where it says that the Federal Government shall guarantee to each of the States a republican form of government to protect them against invasion.

It goes on to say, that in cases of domestic violence, the Federal Government shall only come in upon application of the legislature of the Chief Executive of the State.

Nowhere can it be found, that there is an express exclusive power in the Federal Government in this case.

So that we turn back to Justice Frankfurter's remark which is quoted in Mr. Thatcher's brief.

I believe in his concurring opinion in the Dennis case to the effect that this is one of the implied and inherent attributes of sovereignty that a government, all governments, can enact laws looking to their own self-preservation.

So that if you'll find supersession by implication, in the Smith Act, there is in effect a fiction of an implication upon an implication.

We believe that's a dangerous doctrine.

That it's an artificial concept.

And that it --

Justice John M. Harlan: (Inaudible)

Mr. Louis C. Wyman: I have no such figures, Your Honor.

There have been very few, very few.

And I might like to say in that regard that it's almost impossible, so far as I have been.

And my experience has been in New Hampshire, to get evidence in the face of the Fifth Amendment, not the national Fifth Amendment of the States, Fifth Amendment which applies in the state investigation.

And nobody is talking about what they've done after the effective date of the law, the state subversive activities law in New Hampshire.

And it's quite a problem.

But if supersession by implication should be announced as a doctrine in a field of an implied power under the Constitution such as this, the test then becomes one of whether or not Congress having occupied the field or there being such a conflict which there is not, which the Government brief, the Solicitor General's brief at page 10 says that for 15 years, the States and the Federal Government had cooperated in this field to the mutual advantage and mutual strength of both.

And at page 32, the Government's brief urges this Court not to make a finding of conjectural hypothetical difficulties or conflicts between the State and the Federal Government because it is to be presumed that the cooperation which has existed for 15 years will continue to exist in the future.

And I'm quite sure that it will.

Then if that implication is found, I think it is important to consider the effect upon state laws.

We are the chief law enforcement officers of the States.

We have the duty of using our state police, our local police, to see that law and order is maintained in the States.

Can it be possible, can it be reasonable and hence good sense, that the Federal Government should enact the law which involves a very basic question of policy in the first instance or the legislature and the -- the Congress of the United States, making it no crime in the States to conspire, to advocate, or to advocate the overthrow of the Government by force and violence?

Can it be possible that if we know, for example, in New Hampshire, which is a small State, but rather industrially concentrated?

And in Pennsylvania, which has, as General Truscott has said, long has been known as the (Inaudible) of democracy?

Can it be possible that we know 26 people are going to meet in the house on a certain town, on a certain street, in a certain town therein to either advocate the overthrow of the Government of the United States of America, or to conspire and to do it sometime in the future?

That all we can do is to tell an FBI man about it?

Justice Felix Frankfurter: We can turn in, am I right in assuming that -- that for these various offenses as one should say, perhaps the case what gives to the other in federal courts for various cases the transaction in Congress for activities?

Mr. Louis C. Wyman: Which offense, Your Honor?

Justice Felix Frankfurter: (Inaudible), the problem arises on the subject is really something.

It depends in the -- during the -- have you finally gotten on this?

Mr. Louis C. Wyman: No, Your Honor.

Justice Felix Frankfurter: Well, I think the Nelson case is against the, if you look at it, Court -- in a certain Court in violation of the United States but presumably a certain proposition but there's no presumption that as to the cases (Inaudible)

Mr. Louis C. Wyman: He was prosecuted in both jurisdiction.

Justice Felix Frankfurter: Both?

Mr. Louis C. Wyman: Yes, Your Honor.

Justice Felix Frankfurter: But, so that this is a situation I'm sure that we derive under your statute a situation that Congress in activity which could in the case which you have is must quickly draw (Inaudible) or to your -- or in the state court officers in both.

Mr. Louis C. Wyman: Absolutely, Your Honor.

Justice Felix Frankfurter: Is that right?

Mr. Louis C. Wyman: Yes, Your Honor.

No question about it.

Justice Hugo L. Black: I assume you could also punished under the municipality for the same offense?

Mr. Louis C. Wyman: I do believe so, Your Honor.

We have no municipal law.

Justice Hugo L. Black: It means you have no law --

Mr. Louis C. Wyman: We have --

Justice Hugo L. Black: -- there would be no reason under your argument why there should not be one in (Inaudible)

Mr. Louis C. Wyman: Yes, Your Honor.

I believe that the political subdivisions which are referred to in both the Smith Act and the state laws adequately embrace any offenses against the municipalities.

And I, in New Hampshire, have superseded the county solicitors by order in respect to subversive activities, such as state matter in New Hampshire.

In the same sense, I would assume that would be true if a political subdivision of the United States Government were to be involved.

In the Hines -- in the Hines case, the field of foreign relations involved in express power delegated to the Federal Government, no question about it, the executive was to make it and there is -- they are the occasion for restricting any concurrent state power to the narrowest of fields.

In this case, to say that there is an exclusive power in the Federal Government or that any federal power in this field should be restricted to the narrowest of fields, is not apt because it is absolutely impossible and I believe this to be the crux of this case.

For anybody, in any State, to conspire to overthrow that State or the Federal Government or either of them or the Federal Government alone, with the hope they're being at once involved, the most certain offense against the peace and dignity and security of that State.

If you assume, either a conspiracy involved, if you will, in the Dennis case, or an actual act of advocacy, aimed at the Federal Government, and if you were to assume that we don't have to wait for the pooch and if we have to wait for the pooch, if we don't in the Federal Government, we don't in the States, then if it were to be successful, this Court would be deposed.

The Congress of the United States would be deposed.

The legislators and the Senators from that State in the Congress of the United States would be deposed.

The Army, the Navy and the Air Force would be in the hands of revolutionists by assumption, I admit.

And using Justice Hand's phrase, "You have to discount these things by their improbability, yes, but it is nevertheless, not inconceivable.

And were it to be successful."

And then what about the duty of the Federal Government to protect the States against invasion?

Can it be said that it is so remote that the States are not involved, are not concerned?T

his is one of the most basic powers that the founding fathers reserved to the States and to the people thereof under the Tenth Amendment.

This is a right and inherent attribute of sovereignty because the States on no theory, even according to the government's brief, when that speaks of paramount interest of provinces of the United States Government.

Justice Felix Frankfurter: May I ask -- may I ask you this, Attorney General.

I may be asking you a question that you will be well and really are for propriety (Inaudible), all those reasons in this case, we have to get the role that you have that which (Inaudible) would you be free of -- would you sketch how you go about discharging either reach of the two courts or whether in both courts could be found?What will you be doing?

Mr. Louis C. Wyman: Your Honor, I'd like to answer that question by illustrating what happened in New Hampshire within the last three months.

We had a bank robbery, a federal robbery up there.

And the individual participants were apprehended and prosecuted by the federal authorities.

We have a penalty of 25 to 30 years under our state law for the same crime and the same jurisdiction.

I asked the authorities in New Hampshire, including the Superintendent of the State police and the Governor, whether or not they believed as I believed, that the seven to 15 years sentence which was given to those boys was sufficient.

Justice Felix Frankfurter: What was the federal offense?

Mr. Louis C. Wyman: The federal offense was bank robbery.

Justice Felix Frankfurter: The national bank?

Mr. Louis C. Wyman: National bank, Your Honor.

Justice Felix Frankfurter: And that will be also stated there?

Mr. Louis C. Wyman: Yes, Your Honor.

Justice Felix Frankfurter: I know better than a state offense.

Mr. Louis C. Wyman: No, that is also a state offense.

And we did not prosecute.

We had it --

Justice Felix Frankfurter: That had the best (Inaudible) interrogatory of the statute in taking the offense?

Mr. Louis C. Wyman: I believe, it is, Your Honor.

I do not know of the detailed laws of the various States with respect to --

Justice Felix Frankfurter: But that doesn't -- the law that the special action fund makes you (Inaudible) of national bank and also teach, teach also, leave the application before the general as you offer statutes.

That just happens.

Mr. Louis C. Wyman: Yes, Your Honor.

Justice Felix Frankfurter: They're not really questions.

Mr. Louis C. Wyman: The answer -- the answer is yes.

The same as true, I believe in kidnapping, the same is true in respect to many offenses which may involve a conflict of jurisdiction or hold the lapping of jurisdiction in respect to penalties.

But as to which both sovereign jurisdictions, both sovereign powers have the basic concern.

Its like, I think, Your Honor, father and mother live under a house.

Father tells son, “If you break the window, I'm going to give you a whipping."

Mother says, “I'm going to put you to bed without your supper, if you break the window.”

And if the boy breaks the window, its completely within the proper problems of both to have that disciplinary proceeding for both.

And under the Constitution which the States originally created, the Federal Government, we have a partnership.

Justice Felix Frankfurter: I'd guess in the house of the family is a complicated unit here, another federal (Inaudible)

Mr. Louis C. Wyman: That's correct.

That's correct, sir.

We've been -- we've been partners with the Federal Government.

I've finished transcripts of the testimony I've taken in our legislative investigation and to the Federal Bureau of Investigation.

We have worked in collaboration in the effort to preserve mutual security.

Here a person twice convicted of both advocacy of overthrow of this Government and the instruction even of this Court, comes in and says, that to perfect the more perfect central government and the strongest central Federal Government, you should eliminate the States, regardless of whether that should be considered in the light of its solace.

Justice Felix Frankfurter: That would you -- would you go on for that and decide not to be convicted, but before, here -- here is the -- the Congress that's making a (Inaudible) for the authority you invoke of the State in the Federal Government.

What happens if you sit down and (Inaudible) and try who has a better evidence through the more -- what judge is more desirable to form in five years.

So they're all relevant in consideration to prosecute aren't they?

Mr. Louis C. Wyman: Yes, they are for prosecutor, Your Honor.

And we do not, because the federal authorities by both presidential directive and department of justice directive are interdicted from furnishing any information to the state authorities, under the present -- the directives of the federal authorities.

Justice Felix Frankfurter: And in a case like this?

Mr. Louis C. Wyman: Yes, Your Honor.

Justice Felix Frankfurter: So, what is, what is -- I don't understand what cooperation is.

Mr. Louis C. Wyman: The cooperation insofar has been in the sense that we have, unofficially, had tried in every event not to conflict with the federal efforts in a common goal of security.

We do not wish to interfere.

We wish to help.

We have the power of subpoena, Your Honor.

They do not.

That is a tremendous thing when you considered --

Justice Felix Frankfurter: All right.

Mr. Louis C. Wyman: -- the superior probative evidence.

Justice Felix Frankfurter: The U.S. Attorney of New Hampshire has power below this case in developing this before the grand jury?

Mr. Louis C. Wyman: Before a grand jury.

Justice Felix Frankfurter: Yes.

Mr. Louis C. Wyman: Yes, but in the legislative investigation to determine whether there have been either crimes --

Justice Felix Frankfurter: When it comes or what I meant is this is how the two (Inaudible) and I will decide who should go ahead or they should go in contemporaneously.

Am I to understand where the -- that it was directed opinion of the Bureau of Federal Investigation from helping you with evidence to a proposition that comes in schedule?

Mr. Louis C. Wyman: I cannot answer the question because that's a prosecution and I have had no prosecutions in the state courts.

Justice Felix Frankfurter: Would -- would you be good enough to say what you said about the -- the prohibition?

Mr. Louis C. Wyman: The prohibition consist of a directive, first, to the Federal Bureau of Investigation not to disclose information even to state officials engaged in the same work as to the contents of their files.

Justice Felix Frankfurter: Even -- even if it's the same prosecution like the Nelson on what is going on?

Mr. Louis C. Wyman: So far as -- I cannot answer that, Your Honor.

I do not know that.

All I know is that we have certainly cooperated completely.

But they have been prohibited from cooperating.

I have often wanted to know for example as to whether or not certain things were more probably true.

They're not based upon previous investigations.

Justice Felix Frankfurter: (Inaudible)

Mr. Louis C. Wyman: Yes, Your Honor.

Justice Hugo L. Black: You don't know why they should proceed in the States in connection with giving of evidence now on cases like this.

Mr. Louis C. Wyman: We do not know.

We have a conference on the 29th day of this month for the purpose of working out what I hope will be an improvement in -- in that respect in the common advantage with the Attorney General, Your Honor.

Justice Harold Burton: The Attorney General (Inaudible)

Mr. Louis C. Wyman: No.

In our Nelson case, held that Chase Nelson was a lady who was Secretary of the Communist Party in New Hampshire for many years.

Justice Harold Burton: Hence the case was (Inaudible)

Mr. Louis C. Wyman: That's correct.

Petition for declaratory judgment under our state procedure.

Chief Justice Earl Warren: Mr. Barber.

Argument of Charles F. Barber

Mr. Charles F. Barber: May it please the Court.

I appear as counsel for the United States, pursuant to the invitation of this Court.

Based on the study of the Smith Act, its legislative history and the precedence of this Court in the general field of preemption, it is our view that it was not the purpose of Congress in enacting the Smith Act to supersede or suspend the operation of the state sedition statutes.

For that reason, I am appearing on the side of petitioner.

I should add that we take an issue only -- we take a position only on the issue of preemption.

We think that that is the only issue before this Court, certainly, it is if this Court follows its usual principles in reviewing cases which come up in the state courts.

We take no position on the various Fourteenth Amendment issues which the court below indicated (Inaudible) in his record.

They, of course, would be a right for consideration by the Supreme Court of Pennsylvania if the -- this Court reverses and remands the judgment.

There's nothing I can add to the statement of the petitioner's affirmative case which has already been made.

Accordingly, I'll confine my remarks to a few of the questions which have been touched on by the Court in the course of the argument and the questions which are urged by respondent as grounds for affirming the judgment below.

These fall generally in three areas.

First, the nature of the federal interest which touches on the material which Mr. Justice Frankfurter was last questioning.

The bearing of the fact that this state legislation arises in an area whereas this Court has stressed the delicate balance is to be maintained between the public safety on the one hand and civil rights, personal freedoms on the other.

And finally, the effect of the possibility of the so-called double punishment which Mr. Justice Frankfurter questioned a few minutes ago.

The Federal Government recognizes, of course, that as applied at least to the Communist conspiracy, as we know it and as was described by this Court in Dennis, the national interest in protecting the integrity of constitutional government of the United States is supreme.

It is paramount to any interest of the State.

It may not be an interest that is different in kind because as the Attorney General in New Hampshire stressed, the States and the Federal Government in a very real sense in terms of the objectives of this conspiracy are in the same boat.

However, the United States as the Government of all, and under the Constitution, within the range of its powers, its laws are supreme.

Respondent argues in his brief very strenuously that it is only sedition against the United States which is involved and not sedition against the States.

He presses this hard.

He says it's immaterial at page 55 of his brief, that subversion against the United States will vitally affect the States or may bring injury from them, again in arguing this problem of double punishment.

He says the case would be different if the respondent were convicted of sedition against this charge and convicted of sedition against the State.

This indeed, I think, I'm fair in saying is the theme of respondent's brief.

Technically, I'm not sure that his position is sound.

As Mr. Truscott pointed out yesterday, the indictment in this case charges sedition against the State of Pennsylvania and against the United States.

And the judgment below was to quash the indictment.

Perhaps, that puts an issue only in the allegations of the indictment.

Practically, as Mr. Wyman has just argued, the proposition is unrealistic in the extreme in terms of the Communist conspiracy.But in any event, for purposes of deciding the question in issue here, we submit that it makes no difference.

This Court has made it clear that the power of a State to punish advocacy of any sort is under the Fourteenth Amendment, a very narrow power.

As Mr. Justice Brandeis said, in concurring in the conviction of Ms. Whitney under the California statute, the power exists where there's evidence of conspiracy or incitement to permit present serious crimes or as Mr. Justice Sanford said in the Gilbert case, it may be which involved the Minnesota statute of prohibiting advocacy or interference of interference with enlistment in the United States forces.

The statute may be invoked simply in the exertion of the simple police power of the State to preserve public order at the time and place of the utterances.

For purposes of this sort of exertion of the power of the State under these statutes, we don't think it makes any difference whether the formal object of the conspiracy is said to be the United States Government, said to be the State Government or said to be Government generally.

Indeed we think it would be extraordinary for Congress to seek to displace state laws where they are invoked in such a -- a basic exertion of the police power as these examples are suggesting.

One of the factors relied on by the Court below was the assumption that the enforcement of these statutes would be hampering to the exercise of federal power.

In our brief, we stated the fact that in the view of the responsible enforcement officials of the Department of Justice, they have not, to date, they have not obstructed the exercise of that power.

Justice Hugo L. Black: How long has that been the view of the Department of Justice?

Mr. Charles F. Barber: The --

Justice Hugo L. Black: That you could (Voice Overlap) --

Mr. Charles F. Barber: Well -- well one -- one of the --

Justice Hugo L. Black: Without interfering with the action in the proposition.

Mr. Charles F. Barber: The -- I -- I cannot answer that directly.

I can say that one of the persons who was consulted in this matter is the Director of Bureau of Federal Investigation who has held that office for throughout the period of the Smith Act.

Justice Hugo L. Black: So, I have the full -- the statement made by him distinct to any cases that we believed.

That that's the fact.

The fact was must not be able to look that meaning is by servitude an is subverted.

So, the problem must be handled on a nationwide basis.

Is that the Department's position now?

Mr. Charles F. Barber: It is the position to the extent that we think that there is power in the Congress to enact any legislation which might be necessary to make it possible to carry out the federal program without any obstruction by enforcement activity to the State or other activities of the States which are deemed to interfere with the federal program.

Justice Hugo L. Black: The statement I've just read is different from the present policy of the Department of Justice?

Mr. Charles F. Barber: Well, I don't know that I'm to speak on policy.

Justice Hugo L. Black: I understood --

Mr. Charles F. Barber: (Voice Overlap) --

Justice Hugo L. Black: -- you were stating the policy of the Department of Justice.

Mr. Charles F. Barber: I -- I understood that I -- I attempted to say this.

That the responsible enforcement officials have said that as administered by the States, the state sedition statutes have not, in fact, interfered with the federal program under the Smith Act.

Justice Hugo L. Black: Is that -- would this be the present policy of the Government?

This test investigated espionage, sabotage, violation, and so forth, must be conducted in comprehensive and effective manner on a national basis.

And all information must be carefully sifted out and correlated in order to avoid confusion and irresponsibility.

Is that different from the present policy of the Department of Justice?

Mr. Charles F. Barber: Well, I assume, sir, that is another statement of the Department of Justice.

Justice Hugo L. Black: No, this (Voice Overlap) --

Mr. Charles F. Barber: I assume there's no --

Justice Hugo L. Black: -- just for the statement made by the President some years ago.

The other one was that I review with the statements by Mr. Hoover of the FBI.

Mr. Charles F. Barber: I --

Justice Hugo L. Black: Both seemed to be there in the court as I read them.

Mr. Charles F. Barber: Yes.

And I certainly would not hear today.

I want to say that the policy was otherwise.

The question to which I'm addressing myself is the -- the question of law as to the purpose of Congress in passing the Smith Act.

Justice Harold Burton: Mr. Barber.

Mr. Charles F. Barber: Yes.

Justice Harold Burton: Isn't it quite consistent to say that this kind of a subject calls for national supervision and national enforcement and then at the same time have a policy that there is no objection to States also doing something about it?

Mr. Charles F. Barber: Yes, sir.

Justice Harold Burton: The mere fact it demands national control it doesn't mean the exclusive control.

Mr. Charles F. Barber: That's quite right.

Thank you, sir.

Justice Hugo L. Black: Well, if it demands national control, I would suppose that you wouldn't assert that the Attorney General vast as his power may be would have control of the state prosecution.

Would you?

Mr. Charles F. Barber: If -- if I understood you, that's the point that I have been trying to make.

Justice Hugo L. Black: Would you make the point that the federal -- Department of Justice has the right to control prosecution in a state for the law which is valid in the State?

Mr. Charles F. Barber: No, no.

We would not.

Justice Hugo L. Black: Well then --

Mr. Charles F. Barber: Of course, not.

Justice Hugo L. Black: Then if it's necessary that this problem must be held on a nationwide basis, how can you handle it on a nationwide basis if all the 48 States can prosecute for the same thing without any control by the Federal Government?

Mr. Charles F. Barber: Well, but there's a question of what they can do and what they have done.

It has -- the Department of Justice has never proposed to Congress that it enact legislation to the limit of its power to preclude state activity in this field.

Justice John M. Harlan: (Inaudible)

Mr. Charles F. Barber: Yes, of course.

We are trying to discover the purpose of Congress in enacting the Smith Act.

Justice Hugo L. Black: When was it enacted?

Mr. Charles F. Barber: In 1940, sir.

Justice Hugo L. Black: The statement was made by the department by Mr. Hoover in 1939, as I understand it.

I think it was 1939.

So, that would be 1940.

That the federal state accept conference on law enforcement problems -- problems of national defense proceedings.

Chief Justice Earl Warren: Mr. Barber, what -- what administrative effect was given to the -- this Act after 1940?

How did the -- how did the Department of Justice function with the local authorities?

I ask that because I was --

Mr. Charles F. Barber: Yes.

Chief Justice Earl Warren: -- the Attorney General at that time myself --

Justice Hugo L. Black: Yes.

Chief Justice Earl Warren: -- and my recollection is that both the President and -- and Mr. Hoover urged all law enforcement officers, upon the receipt of any subversion evidence, to turn it over immediately to the FBI without evaluation and without investigations of any kind on the theory that they might be stumbling into something of nationwide importance and they might even be arresting undercover FBI men who had been placed in the movement for strategic purposes.

And as far as I know, during the time that I was in that field, at least in my State, there was a very, very rigid rule among the law enforcement officers not to touch these things, but to deliver them over immediately to the FBI.

Mr. Charles F. Barber: Well, I've been informed that the present instructions are much like you have described as far as information is concerned.

The Federal Bureau of Investigation has asked the State to supply any information which comes into their possession, which they think bears on the subject matter.

I understand that by and large, the States have been very cooperative in supplying such information.

I'm also informed that it has not been a two-way street in the past in the sense that the Federal Government has not supplied information to the state governments except such as in the public as is in the public domain.

Justice Felix Frankfurter: Mr. Barber --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: I want to ask you a question but I must -- I must concede that by asking you is I'm having you to state so I understand the scope of what you told us a little while ago about the absent of conflict between federal and the state authority that you (Inaudible)

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- and actually on the vehicle of what (Inaudible) responsibility as tot the State.

As I understood you to say that no conflict has developed there between federal and state authority.

Is that right?

Mr. Charles F. Barber: That is correct.

Justice Felix Frankfurter: Now, what I want to know is that -- was that -- that report which you've given us that of -- as of the present, if it's a --a statement as of today looking back on the past?

Mr. Charles F. Barber: Well, this is a statement at least as of yesterday.

Justice Felix Frankfurter: Well I [Laughter] -- I commend your respect to accuracy, evidently.

In other words, if the statement, any post mortem (Inaudible) is this --

Mr. Charles F. Barber: It is a statement --

Justice Felix Frankfurter: All right.

Mr. Charles F. Barber: -- simply of --

Justice Felix Frankfurter: Now -- yes.

Mr. Charles F. Barber: -- the fact of the last 15 years.

Justice Felix Frankfurter: I should like to put this to you --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- and, infer this that the trouble entirely.Mr. Justice Harlan brought us back a minute ago to the -- to the question of this case.

Namely, we have a statute of Congress.

We have state laws and the question is, whether statute of Congress has displaced them?

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: That's the -- that's the question.

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: Now, relevant from that, certainly is not what a legislature of 15 years after his proposal and is enacted, think they do.

Mr. Charles F. Barber: That's right.

Justice Felix Frankfurter: If we do --

Mr. Charles F. Barber: Except so far.

Justice Felix Frankfurter: (Voice Overlap) -- for that kind of thing, I can't imagine a worst chaos and that legislative covered 15 years later what they thought they had in their heads.

They -- they wouldn't know today what they had in their heads.

These would be in their foot if they didn't know.

Now, secondly as to this information, I should like you to probably ask all about it, and I haven't.

Is it relevant?

Is it present?

Is it proper?

I don't mean improper model, but is it proper for us to consider what an administrative official thinks has been or has not been the working of a team of legislation when we're called upon to decide whether this Act in 1940 is clinging to that insofar as State is -- State is concerned and it's taking the field wholly for the Federal Government.

Now, to me, that raises a very serious question.

I just want to --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- whether we have to be told when questions like these arise that whoever was temporary -- we're all temporary in this world -- the official may be for whatever reason, he comes and tells us (Inaudible)

Is that relevant?

Mr. Charles F. Barber: The court below, of course, made certain statements in this area which were what provoked --

Justice Felix Frankfurter: I'm -- I'm --

Mr. Charles F. Barber: -- our comment of fact.

Justice Felix Frankfurter: I hope I admitted freely that during your duty in my view --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- and doing it very well.

Mr. Charles F. Barber: I think in some instances, in these preemption cases where matters of regulations have been before the Court, the Court has considered how the two systems have worked as casting some light on what much and must have been the purpose of the legislators when they approached the problem.

Beyond that very slight weight, I think it is quite distant from the issue which turns on the purpose of Congress --

Justice Felix Frankfurter: From my point of view --

Mr. Charles F. Barber: -- in 1940.

Justice Felix Frankfurter: My -- my worry is a little beyond the remoteness isn't merely the question of remoteness.But was the best of intention is the best of motion.

Public officials have different interests as to mode.

They have different convictions that they have and generally our law is wisely (Inaudible) suppose more than likely a statement.

Mr. Charles F. Barber: Yes.

Yes.

I'd like to deal just one minute with the question Mr. Justice Black raised bearing on whether the rule is different in free speech cases.

What is the bearing of the fact that this law bears very importantly on personal freedoms, on liberties, on rights which are basic in our system?

This, of course, was an important factor in the Hines case.

I think that it might throw some light on this question, on this suggestion, if I characterize it as amounting to the statements that the States cannot be trusted to enforce state legislation without violating constitutional rights.

If I put it in that form, of course, it could be brought to bear on any state criminal proceeding where a defendant could be so prosecuted in a manner inconsistent with the requirements of due process as they have developed under our law that a federal constitutional right would be violated.

In this area, we suggest we have to think of the question as concerning a constitutional application of these state laws.

Otherwise, we are mixing constitutionality under the Fourteenth Amendment with the issue of preemption under federal supremacy.

If we assume a constitutional application of those laws, it may be that we are looking only at their application in a very narrow area, where the police power is vitally at stake.

I referred a moment ago to Mr. Justice Brandeis' characterization in the Whitney case in upholding the California statute.

The state conviction would not be set aside where the evidence showed conspiracy or incitement of, for the commission of present serious crimes.

When these state laws are applied in that area and, of course, they have been applied in that area, then, there is a state interest which perhaps is manifest.

Now, we think it would be improper to apply the preemption doctrine to an area that goes as far as an unconstitutional application of the state statutes because I doubt that it is reasonable to suggest that Congress would have had any such sophisticated notion of the extent of their preemption of the field.

I think either they intended to displace these state laws or they didn't.

If that is right, the question is tested against a constitutional application of the state laws and I think it would be extraordinarily to assume that Congress would displace them where they were invoked in a exercise of this basic police power.

Justice Felix Frankfurter: Mr. Barber --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- may I ask whether your study of these, to me, very troublesome supersession problems, you have found that when this Court has concluded that a federal act as this has displaced it or displaced it with state laws that there was very explicit manifestation by Congress that such should be the result, rather than a study by this Court for the consideration of the implication, the full implications of our federal statutes.

That on the whole, it is important that a federal law to be exclusively governed, the transaction means to a particular field even though the local law may be supporting us or it may be accordance with the federal court.

I remind since the (Inaudible)

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: Are you familiar with that?

Mr. Charles F. Barber: Surely.

Justice Felix Frankfurter: We know --

Mr. Charles F. Barber: Surely.

Justice Felix Frankfurter: -- what I believe to be incontestable that there wasn't the slightest indication --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- that Congress ever thought of just --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- making the statement.

So, not the slightest.

The Court's founded in that fact.

And I found from the decision of this Court what is there.

But I do not think it can be challenged and this should be obvious reading.

That there was the slightest indication that Congress -- that the State all go to sleep.

Mr. Charles F. Barber: I -- I think that's a fair statement of Cloverleaf and there are number of other cases in the field.

I -- I would made this general observation though, and that is, that all of the cases so far as we know, where this doctrine of preemption has been held to apply, where there wasn't direct conflict, where the Court looked as you said, to the whole operation of the federal system, the whole context of the subject matter dealt with by the statute.

Everyone of those cases has concerned regulation of some subject matter.

In some cases, you're blocking out how far Congress went and how far they didn't go.

In other cases, whether they took in all aspects of the -- of regulation dealing with a certain subject matter.

But never in its history has this Court, under the doctrine of preemption, displaced an ordinary criminal statute defining in punishment and punishing conduct, characterized as criminal which was separate and apart from any purpose of regulation.

Justice Felix Frankfurter: I -- I was looking --

Mr. Charles F. Barber: Your national --

Justice Felix Frankfurter: -- into myself merely to the question of how this Court has to go about it finding whether the -- whether the state law should appeal this and -- and this is my impression or the impression left on my mind, when I did go through those cases that on the whole, one has to do -- the Court does precisely what you said.

Mr. Charles F. Barber: It looks at the --

Justice Felix Frankfurter: The Cloverleaf --

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: -- the Cloverleaf, it did what it did in Kelly and the opinion by Chief Justice (Inaudible) it examined all the statute because there wasn't any light except the statute.

Mr. Charles F. Barber: Yes.

Justice Felix Frankfurter: And it came out, contrariwise.

And he said yes, we cannot say that the federal act displaces the local one in the court of Washington State.

Mr. Charles F. Barber: Yes, yes.

That's --

Justice Felix Frankfurter: A lot of times I'm addressing myself to the means to the -- not so much for criteria but the process by which this Court has to make the accommodation between state law and federal -- under federal law dealing with the same subject matter when we get no light from so-called intention of Congress except what the statute themselves furnish.

Mr. Charles F. Barber: Of course, you must look at the whole subject matter.

We have no other view on that.

Justice Felix Frankfurter: One test on the early cases about counterfeiting way back in (Inaudible)

Mr. Charles F. Barber: The -- you're thinking of the double punishment line of cases.

The first one --

Justice Felix Frankfurter: It was way back.

It's one of civil war.

Mr. Charles F. Barber: Fox versus Ohio, I think was the first of that --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Charles F. Barber: -- line of cases.

That was a state conviction for passing a counterfeit United States coin.

It was there argued since the United States has the power to coin money that this could not be a crime under the State.

It was upheld as the state conviction was upheld as a private cheat and offense against the criminal jurisdiction.

Justice Felix Frankfurter: But that's a -- that's a different situation.

I mean --

Mr. Charles F. Barber: Well, we don't --

Justice Felix Frankfurter: Let's have the State that the -- the single act may, of course, singled physically kind of act that may be you can take from a killer man or you may block or you will distract -- through mail carrier, the carrying of mail.

Mr. Charles F. Barber: Yes.

Let me use your example in California resort.

A -- a federal statute may punish an assault on a federal officer.

It also may invoke a state interest in preventing street problems.

Well, now, when you're looking at the full -- of -- at the scope of the state constitutional power, this kind of statute can be invoked and has been invoked to prevent street problems.

Now, I am not aware of any instance where this Court has told the state courts how to phrase their legislation.

So long as they confine the offenses they punish to those within their criminal jurisdiction and do so, so as not to contravene a federal right, this Court has let it stand.

Justice Felix Frankfurter: As I understand the New Hampshire statute or the Pennsylvania statute is a carbon copy of the Smith Act roughly of this.

Mr. Charles F. Barber: For present purposes, yes.

Justice Felix Frankfurter: Isn't that right?

Mr. Charles F. Barber: Yes, sir.

Justice Felix Frankfurter: So that differs from the Fox againts whatever it was and also the Duke situation (Inaudible)

Mr. Charles F. Barber: Excuse me sir – I'd be glad too.

Justice William O. Douglas: I say in the brief to you.

Mr. Charles F. Barber: In -- in the brief, we discussing, yes.

The point -- the point is made that treason against the United States is something different from treason against the State.

Perhaps, in the civil war context of that West Virginia case or in the war of 1812 context of the New York case.

There was such a thing as a treason against the United States Government which was separate from a present substantial injury within the police power of the State.

The Southern States may have, I -- I don't want to be the historian on this, but they may have and entertained view that the objective of the war was to overthrow the Federal Government without having -- and -- and impose their will on it as far as Southern objectives were their concern.

That might have been separate and apart from any purpose to overthrow the governor of Massachusetts.

That is, of course, quite a different situation that we have in these sedation statutes invoked against the communist conspiracy where the doctrine is directed at established Republican governments in general.

Justice William O. Douglas: You mean with the prosecution during the State's power (Inaudible)

Mr. Charles F. Barber: No, but if a person in Pennsylvania, in downtown Pittsburg, made a speech inciting treason against the United States and there was a unrest and an outbreak of -- of riot was imminent, I think the States would have the power, the State in exercise of their -- or the police power to move in and stop the treasonable utterances.

I -- I appreciate there is an overt act in the specific definition of treason that may distinguish the cases.

Justice Felix Frankfurter: Well suppose the State -- I -- I don't quite see why he's so -- from your point of view, why he is so convincingly felt they'd basically say no to Mr. Justice Douglas' question.

Assume the State treason statute is in terms the basis of the characterization of it in the Federal Constitution, assume the same requirement as to quantum of proof, et cetera.

Why do -- I assume you --

Mr. Charles F. Barber: Well let me state --

Justice Felix Frankfurter: -- will still say no, why do you say --

Mr. Charles F. Barber: So, let me state two cases.

If there is a treason against the State and overt act within the State looking toward the overthrow of the state government, then it is punishable in Pennsylvania.

But if there is a treasonable act in Ohio directed towards the United States Government, I question whether that's punishable in Pennsylvania.

That's the distinction I was trying draw with that civil war analogy where there might be --

Justice Felix Frankfurter: What is due process when you say you're punishing for an act not committed within the State?

Mr. Charles F. Barber: Well, of course, my great effort in this is to then is to keep the two questions of due process on the one hand and presumption on the other, separate.

Chief Justice Earl Warren: Mr. Thatcher.

Rebuttal of Herbert S. Thatcher

Mr. Herbert S. Thatcher: May it please the Court.

The State of Pennsylvania and the Federal Government had each enacted an identical law proscribing sedition against the United States.

The defendant or respondent Nelson was tried and then convicted and sentenced in the federal -- in the state courts under the state law and subsequently was tried and convicted and sentenced in the federal courts under the federal law.

This -- this, of course, immediately gives rise to the basic question here which I agree with Mr. Truscott on, that the -- whether the Pennsylvania law is superseded or suspended by the at federal law.

However, in addition to that, there are basic considerations of civil liberties involved here which I'll dwell on it at length a little later.

One -- one such consideration involves the question of dual punishment.

Another involves possible transgressions of personal rights and liberties of the delicate but very volatile subject to sedition is that for enforcement at the local level is subject to local prejudices and passions, and perhaps local political ambitions.

I suppose that fairness treat them to even most reviled of our citizens is inherent on the Constitution.

I have no sympathy with Nelson's teachings, but I have faith and sympathy for the proposition that the crime of sedition against the United States should be prosecuted and punished by the Federal Government alone.

I cannot believe that Congress, in enacting the Smith Act intended to create a -- a situation which, an early justice of this Court described as something worse than oppression.

That is, where under an individual that's subjected to not only two punishments perhaps, but perhaps, many punishments that municipalities are to pass these laws that they have.

Justice Felix Frankfurter: Have you examined the indictment in both in applications?

Mr. Herbert S. Thatcher: I have, Your Honor.

Justice Felix Frankfurter: Are they -- I have I not --

Mr. Herbert S. Thatcher: In -- oh, both Nelson cases?

Justice Felix Frankfurter: Well, I mean the state and the federal.

Mr. Herbert S. Thatcher: Not -- not closely.

Justice Felix Frankfurter: This is -- this is the Nelson which case is now before this Court for conviction absence requirements of the conviction is the federal court.

Mr. Herbert S. Thatcher: That is correct, Your Honor.

Justice Felix Frankfurter: Now, what I would like to know is I've examined these are indictments but I would like to know if the indictment is substantially proclaimed?

Mr. Herbert S. Thatcher: I believe that they are.

Neither can I believe that Congress intended to leave the prosecutions for the crime of sedition against the U.S. to the diverse and unregulated and perhaps historical handlings of local state and municipal offices.

These considerations together with the major, the very basic consideration of supersession make this case, I suppose, a very important one.

But important or not, this much, I respectfully submit.

Win or lose this case, Nelson remains in prison for his crime of sedition against the U.S.

To lose this case, I think something important from the concept of federalism for what has been lost and something irreplaceable in our concept of civil liberties.

The Supreme Court of Pennsylvania in the a four-to-one decision has held that the federal law supersedes the State.

I disagree that the concurring opinion of the three justices was half-hearted.

They expressly concur in every court, in every respect.

Before examining the various considerations applicable to a determination of congressional intent and a determination of the supersession issue, it is important, first of all, to know the issue to what is actually before the Court.

We have involved, here, solely, sedition against the United States as such.

Not sedition against the State or not even sedition against the Government or against organized Government general -- generally, which I suppose would necessarily included this thing.

On page 58 of the transcript, the majority opinion states as follows in request to what is -- in respect to what is involved here.

And, while the Pennsylvania statute proscribes sedition against either the Government of the United States or the government of Pennsylvania, it is only alleged sedition against the United States with which the instant case is concerned.

Out of all the voluminous testimony, we have not found nor has anyone pointed to, a single word indicating a seditious act or even utterance directed against the government of Pennsylvania.

And so, even the minority opinion of Judge Bell -- Justice Bell relies heavily on the proposition that since the Federal Government has been somewhat remise in protecting its -- in protecting the U.S. against sedition, the State had every right to step in to fill the breach.

So, we have, in -- in effect, a unanimous determination by all the justices that this case and this prosecution and this conviction involved the crime of sedition against the United States.

That serves to greatly --

Justice Hugo L. Black: Is that position of yours challenged?

Mr. Herbert S. Thatcher: You've -- you've heard the --

Justice Hugo L. Black: Was it challenged in the brief?

I didn't hear the challenge in the argument.

Mr. Herbert S. Thatcher: Well, the -- the argument is that it makes no difference whether the evidence and the -- the fact shows sedition -- seditious utterances against the United States and not the State that those utterances at the same time constitute utterances against the State and that ipso facto sedition against the US is -- is sedition against the State.

The answer to that argument is that first, this begets the different -- different political capacities and sovereignties of the two governments which are distinct which has their own elected officers and which do operate, separately.

I don't think it's impossible to conceive of a seditious act against the State, for instance, in the regime of (Inaudible) Long.

It might be that there might have been fanatics who were -- would conspire to overthrow the state government there while at the same time being completely loyal to the Federal Government.

And perhaps --

Justice Hugo L. Black: But as I recall before 1776, they'd arrest many people who want to overturn the national Government, who had no desire to overturn the Government in the separate colonies.

Mr. Herbert S. Thatcher: That is -- that is also true.

Yes.

And to give us another possible example of -- of sedition against the State as distinguished from the United States in the present conflict or disturbances over the integration problems.

There might be some fanatics who had -- who might, while being loyal to the Federal Government, advocate some type of sedition against particular States in respect to that problem.

I think -- I think that to say that the -- the States that the sedition against the United States at the same time an ipso facto constitutes sedition against the States, confuses interest with jurisdiction.

Certainly, no one denies that the States would have a great interest in the problem of sedition against the United States and that they would be affected and perhaps vitally affected by any attempts at sedition against the United States.

That, however, cannot under our federal system, confer jurisdiction on the States to enact laws on the subject, anymore for instance than to say, “If there were disturbances in the Mexican border,” and serious disturbances which did threaten the lives and properties of the citizens of Texas, anymore than such disturbances which would be very real, would warrant the State of Texas from defending its ranges across the border or from -- or for -- in adopting some law to cope with that problem.

The problem is one for the United States to cope with and the United States alone.

Justice Stanley Reed: Made it that the State, of course, would have the right to punish breach of peace in the statement.

Mr. Herbert S. Thatcher: Of course.

Or -- or if the seditious utterances gave rise to any riots or anything of that nature or if there are any actual acts of violence committed along way, of course, the States could take care of it and there are adequate laws in the books to do that as stated by the Supreme Court of Pennsylvania in its decision.

So, there's no real problem of the States not being able to protect itself in -- in view of court's decision below.

Justice John M. Harlan: (Inaudible)

Mr. Herbert S. Thatcher: Well a --

Justice John M. Harlan: -- in the word itself.

Mr. Herbert S. Thatcher: -- a -- a state statute based on a purpose of preventing riots or basis of the peace would be one thing.

But that is not here.

It was not so construed by the State Supreme Court.

In fact, the Court is very -- that the -- the Supreme Court here went out of its way to find out that this was not a breach of peace statute.

But this was solely a statute directed against treason or against the sedition against the United States, as such, so distinguished that type of protection from the protection that the statute undertook.

I think --

Justice John M. Harlan: (Inaudible)

Mr. Herbert S. Thatcher: It --

Justice John M. Harlan: (Inaudible)

Mr. Herbert S. Thatcher: Well, except that we have a direct construction by the State Supreme Court here that the statute is -- appears as sedition statute and therefore that's precisely the whole problem of the fellow supremacy.

Justice Harold Burton: Well it is, is what you're saying that merely because the State uses the word sedition against the United States in the statute that that's what makes it?

Mr. Herbert S. Thatcher: No, not that didn't --

Justice Harold Burton: I -- I don't quite catch the difference between the --

Mr. Herbert S. Thatcher: Well, the difference is --

Justice Harold Burton: -- the authority to stop acts of sedition because they'll make a breach of peace and not being able to punish for seditions directly against United States.

Mr. Herbert S. Thatcher: Well, one -- one very great distinction which admittedly occurs is this.

That it's -- it's in the extent of punishment of breach of peace statute was, I assume, have a much less punishment than 20 years imprisonment or --

Justice Harold Burton: Why so?

Mr. Herbert S. Thatcher: Well --

Justice Harold Burton: A serious breach of peace like murder for instance?

Mr. Herbert S. Thatcher: Well there -- there -- it's true.

There's no constitutional limit beyond the -- the impressive punishment provision of Constitution.

But in practical effects, I think there would be a distinction in punishments and there would practically be a distinction in prosecution methods --

Justice Harold Burton: (Voice Overlap) -- depends on a breach of peace?

Is murder a breach of peace?

Mr. Herbert S. Thatcher: Murder, a breach of the peace, yes.

Yes, Your Honor.

Of course, this -- this case involves no such aspect whatsoever.

There's no evidence of violence that's involved here but (Voice Overlap) -- to protect them with this.

Justice Felix Frankfurter: Yes, but they need -- (Inaudible) to sustain them through the anti-riot statute -- does it need to be the statute?

Mr. Herbert S. Thatcher: It does not.

Justice Felix Frankfurter: Or in Pennsylvania they might kind of report by you wasn't it?

Mr. Herbert S. Thatcher: I'm saying to that -- I'm saying that it is not that.That it is a pure seditious or a statute against sedition.

I think this whole concept of stepping in because of --

Justice Stanley Reed: It's because of the State's power to punish them.

Mr. Herbert S. Thatcher: Yes.

I think this -- this whole concept of the right of the States to step in because of a great interest in the subject and that of the State has here is a very dangerous one.

By that same reasoning, the State could, I suppose, undertake to help the Federal Government and enforce most any of its laws.

It could pass the laws making it a crime not to file and settle income tax reports on the theory that it's important to the States that the Federal Government had adequate money to defend itself from the country and to supply the State in times when the States needs money and so on.

There's no limit, in other words, to where that concept might lead.

And we have to bear in mind that we have here a -- the problem of federal supremacy, the federal versus the state government in their respective fields of operation.

The treason cases were mentioned --

Justice Stanley Reed: Are you, later, going to discuss the theory under which some acts are -- tend to interfere with the Federal Government's actions?

Mr. Herbert S. Thatcher: Yes, Your Honor.

Yes, Your Honor.

I'll come to that shortly.

I'll mention the treason cases for just a moment.

The Ex parte Warrior and People versus Lynch, early West Virginia and early New York cases held specifically that -- that the State of -- the States cannot punish for treason against the U.S. against the United States and give various reasons for that reasoning, all which, I think, are directly applicable here.

Treason is distinguishable only in degree, I think, from sedition.

It involves the existence of the governments in both cases and that is what we are concerned with here.

Now, returning to this issue of supersession, it's our basic position here that the federal interest in the subject matter is -- is so as such and it -- it is so dominant and the -- the nature of the problem is such that's -- once the Federal Government has undertaken to make some legislation on this subject, that legislation then must become exclusive, must become exclusive, ipso facto, exclusive.

That involves, first, I suppose is an examination of the nature of the power which we just are concerned with here.

No one denies that the power is of -- the powers are being exercised here to protect the Federal Government from sedition, springs from the various, very highest of sources Article 1, section 8 of the Constitution provides for the common defense and general welfare is one base of the power here.

Another is Article 4, Section 4, guaranteeing the States a Republican form of government.

Justice Frankfurter in the Dennis case, indeed the whole court in the Dennis case, gave specific recognition to the very high nature of the power being exercised from the Government -- Federal Government undertakes to proscribe sedition, springing from the very roots of sovereignty, I think is one of the phrases used.

The Government has stated in its brief and the States have not disputed, the proposition that the national interest in its -- in its subject is obviously paramount.

Further, that the problem is a national problem which caused resolution on the national scale.

That -- that sets off the type of power here which is here being exercised from other types of power, for instance, the power under the Commerce -- Commerce Clause in which the supersession issues are most usually raised, posing it as a much -- that there's a power with much higher nature.

In addition, we have entanglements or considerations of foreign relations and foreign policy.

This Court in the Dennis case has again pointed out those considerations, the foreign policy considerations in respect to any attempt to proscribe sedition.

The Government in -- in its brief here, the Federal Government in its brief here and in -- in its brief in the Dennis case was very explicit in finding out the foreign relation aspects of any attempt to deal with sedition in present day and -- and present times.

As a matter of fact, the Congress when it passed the 1950 Internal Security of the 1954 Communist Control Act, specifically enumerated various foreign relation aspects of the problem in its preamble to these pieces of legislation.

Finally, another consideration funneling up to the source of the power that's being here exercised, is the -- the civil liberty aspects of the case.

We are dealing here with sedition which is advocacy or speech.

It isn't acts of violence or -- or physical acts of sabotage or so on.

It involves speech making, avocations of various source, which is in the realm of First Amendment protections requiring that the Attorney General has stated, “A very delicate balancing of various considerations.”

The First Amendment protections on the one hand, protections against the -- protection of the national security on the other.

However in any event, balances or balances things which should be undertaken, I should think by the Federal Government and not by 48 States.

It should be undertaken on -- on uniform single basis rather on a diversified multiple basis.

Thus -- thus we are -- thus in speaking of the power that has here been exercised, we are on an entirely different plane and in an -- an entirely different category from the usual supersession case where we're worried about the -- the right of the States to label cans or to -- to make regulations of its highways or to undertake any of the other usual traditional state functions under its state police powers.

Indeed, I think it's very questionable that it can be said that the State is exercising any traditional state police power when it attempts to proscribe sedition against the United States as distinguished from sedition against the State.

As noted by the concurring opinion below, sedition against the United States is not a local offense, it is a crime against the nation.

Traditionally, police power is exercised in respect to matters of local interest or local concerns, never has it exercised in respect to matters which are the concern of neighboring States of all of the States or citizens of all of the States.

And that is precisely what was done here, when any State attempts to legislate in respect to sedition against the United States.

So I think it can be a question that we had even a field in which the State is exercising traditionally an aspect of its police power, at least insofar as sedition against the United States is concerned.

Justice Hugo L. Black: Mr. Thatcher, you said a few moments ago that some municipality as you is likely to (Inaudible) do you have any in your brief?

Mr. Herbert S. Thatcher: I think they're reflected in (Inaudible), we have (Inaudible) cite -- cited in the brief.

But we haven't got the list of municipalities in the brief.

But there are references to sources from which that can be obtained.

Justice John M. Harlan: Mr. Thatcher, if this Pennsylvania statute has been directed solely to subversive activities directed to the Commonwealth of Pennsylvania, what would be your view?

Mr. Herbert S. Thatcher: Well, that's not -- that's not that this case, but certainly we wouldn't be able to make many of the arguments we here making.

We might have a problem of -- of specific supersession because the Smith Act does undertake the proscribed sedition against the United States, as well as the individual States.

And they might be argued because of that.

That there is a supersession.

But you couldn't argue that the -- the States are not exercising their traditional police power or that are interfering with the federal program assigned.

Justice Hugo L. Black: Have you quoted the section of the Smith Act which --

Mr. Herbert S. Thatcher: Well that's on --

Justice Hugo L. Black: That was the --

Mr. Herbert S. Thatcher: -- that's on page -- it's on the Government, of the appellant off of Pennsylvania's brief page 2 and 3.

Page 2 contains the Smith Act, 3 contains the Pennsylvania Act.

Justice Hugo L. Black: What section makes it applicable to sedition against the States?

Mr. Herbert S. Thatcher: Well, the Smith Act, lower the line of the first paragraph revealing the -- who willfully advocates, advises and so on with -- in the sense of propriety of overthrowing or destroying the Government of the United States or the government of any State territory and so on.

First paragraph.

Now, since -- since the subject matter, we are concerned with here, sedition against the United States is one of predominant federal interest in which admittedly -- which admittedly, must be held on a national basis, to be handled effectively, and since the Federal Government has actually exercised its constitutional powers in this respect, in the Smith Act, specifically, and which describes specific penalties, and since the State is not acting in a traditional field of police powers, this case must be decided on principles entirely different from the usual supersession case.

And the presumptions are entirely different.

The issue --

Justice Mr. Justice Milton: On account that you said that this should be decided on a --

Mr. Herbert S. Thatcher: On a different -- on -- on -- the approach here must be entirely different from the usual approach and the usual supersession.

Justice Mr. Justice Milton: Well, I didn't catch why.

Mr. Herbert S. Thatcher: Well, I -- I was going to get to that, Your Honor.

The reason -- we're not concerned either with -- with the diversity or the identity or the or even conflict or -- or even the compatibility of the two statutes, so, their ability to live together.

We're concerned with, solely, the question of jurisdiction has a state of power, in view of the federal exercise of this type of power to legislate in the identical field with identical legislation.

The question is one of power and the usual --

Justice Tom C. Clark: It isn't this case.

What if the -- if the Smith Act or no other federal sedition act was in existence, would the State pass a -- a sedition act against the United States?

That Act permitted the --

Mr. Herbert S. Thatcher: That is -- that is not this case.

There -- there is - there are a good arguments that the power, even though not exercised is exclusive but has certainly a less firm argument than the argument that when Congress has taken the thing and handed as exercise of jurisdiction - that the jurisdiction then becomes exclusive.

Justice Tom C. Clark: There was discussion at one time in America about the thing of sedition act as to whether the Federal Government and the States?

Mr. Herbert S. Thatcher: Oh yes in the - in the Gilbert case, Justice Brandeis did hold or did in his dissent, did hold that the federal power in that field was exclusive even if not exercised by -- by virtue of its nature.

Here we argue that by virtue of the nature of the power plus the fact that the Congress has exercised, specifically, jurisdiction in specific respects that then, on that account, it has become exclusive.

Justice Hugo L. Black: Do you draw any company to the fact that the Constitution suggests punishing despite it was the same offense?

Mr. Herbert S. Thatcher: Yes I am coming to that in a minute.

Justice Hugo L. Black: Even though a State may -- may have been held that does not apply to the State that you would not want to presume that Congress (Inaudible) one man punished twice with the offense contrary to -- claim their position with the federal constitution?

Mr. Herbert S. Thatcher: Yes, yes, Your Honor.

We -- we draw quite an inference from that.

We -- the -- there's no question to whether -- whether or not dual or double jeopardy is involved here and now, it -- it isn't because the prosecution was in the state court first, so it could not be double jeopardy.

But the question of dual punishment certainly is very much here, very much here.

And this -- that is, as described by Justice Frankfurter, an important aspect, at least to civil liberty, and it's not to be presumed in the absence of some affirmative indication, I suppose, that Congress was willing to impose dual punishment.

Justice Hugo L. Black: Have there been any statutes heretofore, passed by Congress where the (Inaudible) State to bring about trial which was to subject then to being punished twice by the identical conduct?

Mr. Herbert S. Thatcher: No, there haven't.

Justice Hugo L. Black: That's true in the prohibition by all, I wonder.

Mr. Herbert S. Thatcher: That, as matter of fact, they're not to have (Inaudible) that in the -- and the prohibition law is the only single example of where Congress specifically as well as the Constitution, specifically, gave both the Federal Government and the States the right to -- to have prosecutions in the field.

Justice Hugo L. Black: Well, did -- was there anything in the prohibition laws?

I'm not -- I'm asking because I'm not -- I do not know which indicated the desire on the part of Congress that the same conduct, the same individual should be and have two punishments imposed.

One by the State and one by the Federal Government.

Mr. Herbert S. Thatcher: I think it's specifically, so stated.

I think the prohibition act specifically, so stated that both prosecutions could be by both governments, specifically, in the Constitution.

They give the man, as so stated.

So, there's no problem from there.

Justice Hugo L. Black: Well, but did it say that -- may -- maybe it did.

Did the Act or the Constitution say or incurred the idea of both prosecuting.

I understand that they're both to be prosecuted but it would carry it -- with it the idea, that if both should prosecute for the identical offense so as to guarantee that they would be punished twice for the same offense.

Mr. Herbert S. Thatcher: No.

There was no -- that would -- they've secured vindictiveness and there's no such intent indicated, although there was allowances for the possibility of -- of punishments in the two areas.

That was the Lander case for the one.

Unknown Speaker: Were there -- were there punishments, double punishments suffered by anyone under the prohibition law?

Mr. Herbert S. Thatcher: I don't know.

There -- there were.

The -- the Lander case this one where there was but that was by virtue both constitutional and direct statutory authorization.

Justice Hugo L. Black: Well, there was quite enough of that as I recall it.

You have the punishment not merely by the Federal Government but by the State and by the municipality for the same offense and that was frequently done as I recall it.

Mr. Herbert S. Thatcher: In the prohibition essence, but that's the only one that I know in the history of this country where that was in any way incurred.

And that's why by virtue of the constitutional amendment on the subject.

The -- the inquiry here rather than as to any intent as of Congress to supplant state legislation, the inquiry was not directed in that direction, rather the inquiry is whether Congress has manifested -- manifested consent that the States can step into this field.

That is the inquiry.

And that is -- but we are - that is what we have to look for in the statute or in its legislative history.

And the decisions so hold as I will come -- as I will point out in a minute.

That is, the presumption is exactly the opposite from the presumption in the usual supersession case.

The presumption here is that there is no supersession and we have to find some affirmative vindication of congressional consent to the sharing of its jurisdiction before we can say the States can exercise or can enact or enforce the little Smith Act in this case and in other cases.

That -- well that was the -- the holding of this Court many years ago in Houston versus Moore, the case we rely on very heavily which the counsel for the States have thought to distinguish but which on examination of the case, I -- I think you will find that their distinguishment is not quite accurate.

The case involved an old -- an old statute of the State of Pennsylvania.

This is in post revolutionary wartime which made it a -- which made it a crime for a person to fail to respond to a call by the President to the federal militia.

The Federal Government had passed the law to the same effect.

We've much the same situation here as we have there, then.

An individual had failed to respond to the President's call to the federal militia and --

Justice Hugo L. Black: Did you say Smith versus Moore?

Mr. Herbert S. Thatcher: Houston verus -- Houston versus Moore back in (Inaudible)

In a majority decision of opinion written by Justice Washington, the Court held that the Pennsylvania law was not invalid but it did so by construing the Pennsylvania law, that is very important because the case is -- is a difficult one to read.

That it did so, solely by construing the Pennsylvania law to be one which authorized a state militia to prosecute under the federal law and the majority opinion as well as the dissent of Justice Story was very emphatic, very emphatic that had the State attempted to enact the identical federal law and prescribed its own penalties and enforce it in the state courts or in the state court marshall, but then the law would have to fall under the theory of federal supremacy.

On that -- on that holding, on that reasoning is identical to the situation we have here.

Here we have two criminal statutes.

In the Houston versus Moore, there's a criminal statute.

Here we have a criminal statute.So this -- this distinguishment between regulation and criminal statute is no quite conclusive.

There, the criminal statute -- the federal power is being exercised in the paramount federal field.

That was brought out in the course of both minority -- minority and majority decision -- opinions there.

And there, it was held, specifically, by all -- all of the justices that had the Act -- the Pennsylvania Act, attempted to -- to proscribe or prescribe the identical federal offense, making it a state crime and enforced it with its own -- or furnished it with its own penalties, and then -- then the law would have to fall.

And it was further stated that the Pennsylvania law could be sustained only if Congress specifically indicated its consent that the State should assist in -- in the federal -- in -- in enforcing the federal law with respect to enlistments in the federal militia.

Hines versus Davidowitz is a -- another case upon which we rely heavily.

There we have the foreign relations that there -- that, of course, was the alien and sedition case in which the state sedition laws and I think there were some 19 were superseded in that case were held unconstitutional.

First, by reason of the superior or dominant nature of -- of the dominant federal interest in the subject matter and second, because of the element of civil liberties involved to the personal rights and freedoms, which it was the primary responsibility of the Congress to protect.

Hines is therefore very relevant here on those two propositions.

And as -- as I indicated the fact that there were a number of States which had -- also had alien laws did not deter this Court and decide us from defining federal supremacy.+

I think it's significant to note those same alien and sedition laws which were the subject of the litigation on the Hines case also contains the identical sedition provisions that we have here.

Title 1, I think, contained the alien -- the alien clause and Title 3 contained the same identical sedition law, this 1940 Smith Act that we have here.

There's one body of law at that time since it's been recodified into separate sections.

These -- these courts -- and even in the cases where there is no big dominant federal interest and where the State is legislating in a field which is traditionally its own, that is under its traditional state police powers, this Court has many times held that the States cannot enact identical -- identical legislation and prescribe different or heavier or lighter penalties on the theory that once Congress has enacted a law specifically under an exercise of its -- one of its powers, the States simply cannot be permitted to enact this, the identical law.

Justice Hugo L. Black: Why?

Mr. Herbert S. Thatcher: Either as a help or for the -- because of the principle of federal supremacy.

Once the Federal Government has acted, that is it.

The Federal Government just felt that the -- for instance that the --

Justice Hugo L. Black: So, what's been quoted of the -- of what you mentioned is about where the punishment was different?

Mr. Herbert S. Thatcher: It -- the punishments would make (Inaudible), the punishments are less, it would make no difference whether the punishments were equal or more or less, still --

Justice Hugo L. Black: I understood it's de-emphasizing that fact.

Mr. Herbert S. Thatcher: No, I didn't mean to, Your Honor.

I'm sorry.

That the punishments make no difference whatsoever.

Now, the dissents of -- of three of the justices here in the (Inaudible) case, discusses at length this -- this very proposition and states very expressly that -- in that kind of situation, we have to find some indication of congressional consent, affirmative indication of congressional consent that the States can occupy a federal or can take over a federal jurisdiction.

So, we had not only that concept here but we have the more important concept of federal dominance in the field.

And those two together, we submit very, very respectively, those two concepts together, make it very necessary here that Congress shall -- has indicated some or rather either in the legislation or in its history a consent that -- that the States can step in, in this very important field and pass their own laws with their own penalties.

Justice Felix Frankfurter: I should know but I don't.

What is the situation of the punishment?

Are they the same?

Mr. Herbert S. Thatcher: No, they're greatly -- it's different all over.

Justice Felix Frankfurter: Well, I mean --

Mr. Herbert S. Thatcher: In the -- in the Smith Act --

Justice Felix Frankfurter: (Voice Overlap) -- recommended.

Mr. Herbert S. Thatcher: -- the punishments -- in the Pennsylvania Act, the punishment is maximum which was given to Nelson.

It was 20 years and $10,000 fine.

Justice Felix Frankfurter: You mean in the federal prosecution?

Mr. Herbert S. Thatcher: In the state prosecution.

That was the -- that was the penalty there.

In the federal prosecution, the penalties range from five to eight years and he received five years.

Justice Felix Frankfurter: You (Inaudible) I hear you say that the punishment in the argument, the punishment is not very clear?

Mr. Herbert S. Thatcher: I think it's -- I think it's -- it's helpful but it's not material, no.

Whether the punishment is less --

Justice Felix Frankfurter: Not (Voice Overlap) --

Mr. Herbert S. Thatcher: -- or the -- the same or -- or greater, makes no -- great difference under the principle of federal supremacy.

That is, if out of the theory that if -- under -- under this theory, Congress has taken the matter in hand, has given it consideration.

It's thought that so many years of punishment and so much fine is a sufficient (Inaudible)

You must remember we're --

Justice Hugo L. Black: (Inaudible)

Mr. Herbert S. Thatcher: And -- and that should be --

Justice Felix Frankfurter: What you mean is --

Mr. Herbert S. Thatcher: -- I -- I said it's relevant.

Justice Felix Frankfurter: What do you mean is that you wouldn't care if it was the same, is that it?

Mr. Herbert S. Thatcher: I Wouldn't care if it was the same.

Justice Felix Frankfurter: Well, but since they're not the same, why do you say it's unimportant?

Mr. Herbert S. Thatcher: Well I say -- I say it's --

Justice Felix Frankfurter: Did the Justice warn him in the Houston lower courts has (Inaudible) him.

Mr. Herbert S. Thatcher: He thought it was vitally important but he also said -- he also said, whether they're equal or greater or less, makes no difference.

Justice Felix Frankfurter: I think -- but in your case that is not the situation where you don't decide anymore.

Why are you so generous in throwing away that argument?

Mr. Herbert S. Thatcher: Well, yes.

I don't mean to throw it away.

I -- I don't mean to throw it away.

I mere-- I merely meant to emphasize the -- the importance --

Justice Felix Frankfurter: What (Inaudible) do you have to, is that it?

Mr. Herbert S. Thatcher: That's --

Justice Felix Frankfurter: All right.

Mr. Herbert S. Thatcher: -- that's --

Justice Felix Frankfurter: That's a very common -- that's enough to take you (Inaudible)

Mr. Herbert S. Thatcher: All right.

Now, the earlier authorities on this -- on this -- this proposition of, once the Federal Government has stepped in the -- the Congress has to affirmatively indicate its consent to (Inaudible) versus Pennsylvania, the Southern Railway case versus Indiana, 236, U.S., Rice versus Santa Fe and it is the (Inaudible) in the California versus (Inaudible) discuss all of these cases at length.

Now, on this matter of intent of has been over, I either contended and the -- the simple reason that it can't be that Congress has in any way manifested affirmatively that the States should step in and pass similar laws.

There's no indication on that whatsoever.

As a matter of fact, the evidence to its intent in any respect is -- is pretty nebulous.

There is -- much of it in -- in a case not the history.

That's what Congress did intend but we -- we are -- we're -- we're concerned with the proposition here that Congress must, under the decision of this Court, must affirmatively indicate somehow either on its history or it's in -- in the legislation itself contend to the sharing of jurisdiction, that we haven't got.

Section 3231 of the Criminal Code as relied on, that's the saving clause which follows a -- a general -- I'll read it.

A general provision that the jurisdiction of the federal courts in criminal matters is exclusive.

Section 3231 in its entirety reads, "The district courts of the U.S. shall have the original jurisdiction exclusive of the courts of the states, of all offenses against the laws of the United States."

And then in an order to save the traditional jurisdiction of the States in matters traditionally theirs, this paragraph was added immediately.

"Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof."

It is under the laws of the state courts and I will assume under the valid laws of the state courts or otherwise we are begging the entire question here.

3231 is not a section which accompanies the Smith Act.

It's a general, overall general saving clause which has been on the federal criminal code for many -- many years.

It has, to my knowledge, never been held to authorize States however, to pass or -- or enforce federal law -- federal criminal laws in a strictly federal field such as -- well, take, for instance, the federal crime of contempt in a federal court or contempt of the federal committee, under their arguments that -- of the State as to the effect of 3231.

I suppose the States could check into those fields as well.

I -- I think 3231 has to be taken to mean that the -- the general clause which gives exclusive jurisdiction to the federal courts and criminal matters under the Federal Criminal Code shall not apply to the States' jurisdiction in matters where the States have a traditional jurisdiction which would -- which is not the present case.

And certainly, it's such a general saving clause is not the affirmative consent which the cases indicate are required in this type of a situation.

Well there are other factors --

Justice Harold Burton: What other cases are you referring to when you say that it must be a grant of power by Congress.

Is that the (Inaudible) Wagon Company?

Mr. Herbert S. Thatcher: Well, Houston versus Moore states that for one, California versus Zook dissent.

There are any number of cases set forth in that -- the two dissents of Justice Frankfurter, Justice Burton, Douglas.

Justice Stanley Reed: But all of those were the -- the idea that the State wouldn't have power under certain circumstance.

Mr. Herbert S. Thatcher: That would not have power because the Congress has expressly and explicitly in a very narrow field made known its desires in the matter.and it has legislation and prescribed punishment specifically.

In that type of situation, where there's no question of the (Inaudible)

Justice Stanley Reed: It arise out -- it arise out of interstate transactions?

Mr. Herbert S. Thatcher: Those mostly arose out of interstate transactions or interstate commerce transactions.

Justice Stanley Reed: So, the State would not have power unless Congress did give it?

Mr. Herbert S. Thatcher: That was -- that is the holding of those cases.

Justice Stanley Reed: (Inaudible)

Mr. Herbert S. Thatcher: Varnville, yes.

The Rice versus Santa Fe Railroad was one.

Southern Railway versus Railway Commission of Indiana from 236 U.S. was another, the Zook dissent has all those cases connected in it.

And it has affirmatively stated that Congress must give its consent --

Unknown Speaker: No.

Mr. Herbert S. Thatcher: -- in this type of case.

Justice Stanley Reed: I don't see their act -- act -- applicability here.

So, here you have a -- well assuming that -- that it's against the State that the -- that the (Inaudible) that would be authority of the State.

Mr. Herbert S. Thatcher: Yes.

Justice Stanley Reed: It's a state action.

Mr. Herbert S. Thatcher: If -- if -- assuming --

Justice Stanley Reed: Weren't intrastate.

Mr. Herbert S. Thatcher: Yes, assuming that's sedition is against the U.S. is -- is sedition against the State.

That's --

Justice Stanley Reed: That's the question here whether that's a wholly intrastate transaction or whether that goes -- they have to punish or whether they can't punish --

Mr. Herbert S. Thatcher: Well I don't think it is a --

Justice Stanley Reed: (Voice Overlap) -- isn't it?

Mr. Herbert S. Thatcher: Your Honor, I don't think it is a question.

The State Supreme Court has very specifically stated that the -- the -- I'll read it again.

"That it -- it is only alleged sedition against the United States" with which we are here concerned, not against the State.

Justice Stanley Reed: I'm -- I'm accepting that.

Mr. Herbert S. Thatcher: Not against the State.

So -- so we have a situation where Congress has passed a specific law on prescribing sedition against the U.S. and the State has also passed a specific law on that very same subject.

Production of these cases that I've just discussed in the Zook dissent are, to the effect, that in that type of situation where there's a direct similarity and that Congress has spoken that that is conclusive and that Congress must let the States know affirmatively that they can step in before they even attempt to step in.

Justice John M. Harlan: What would you say of the Zook's majority opinion?

Mr. Herbert S. Thatcher: Well, Zook case is entirely distinguishable from this case on its -- on facts.

There we had no exercise --

Justice John M. Harlan: Suppose that it is.

Mr. Herbert S. Thatcher: There was no sedition or no paramount federal interest.

As a matter of fact, the majority found that the state -- the state interest there was paramount.

The case involved regulation of these people that -- except transportation for -- taken on purposes for hire and the said State had -- even had a paramount interest in that type of situation.

And therefore, even though there might be some identity between the two statutes which there was, therefore, the --

Justice John M. Harlan: Even the Federal Government couldn't say we'll explicitly punish.

Mr. Herbert S. Thatcher: The Federal Government could have said that but the Federal Government didn't -- hadn't expressly said that our jurisdiction is exclusive here.

The dissent was very strong.

Justice Stanley Reed: No, I take it that this -- here, the Federal Government has said there should be no punishment for sedition except by the statute (Inaudible)

Mr. Herbert S. Thatcher: Then, of course, there'd be no question.

Then, of course, there'd be no question at all.

Justice Felix Frankfurter: What you're saying as to the part when it's permitted to rationalize (Inaudible) the assumption of the police that under the (Inaudible) decision was that in that case, the California statute to reveal that -- that the subject matter predominantly incorporates and therefore since they are not to infer that Congress meant to see what is your controlling of local agents although it's a matter of constitution of law, it was also dealing with the (Inaudible)

Mr. Herbert S. Thatcher: That was the holding if I'm -- in the case.

The dissent said --

Justice Felix Frankfurter: That -- that's the theory and here's the choice that was made.

Mr. Herbert S. Thatcher: That is, Your Honor, yes.

Of course, we -- here, we have no dominant, not even an attempt to say that state interest is predominant.

State interest is important, vital but not predominant.

There are other supersession arguments available.

I won't take the time to go into them.

One is the occupancy or the field argument.

We've got the Internal Security Act of 1950 which goes into the whole for our subject matter of sedition, in broad regulatory sense.

We've got the Communist Control Act of 1954 which further implements that.

So it's -- it seemed pretty good that Congress has -- has legislated very generally and very specifically in the field on the Cloverleaf Butter, for the rest, that would be an indication as Congress meant to occupy this thing.

Justice Harold Burton: Mr. Thatcher, when Congress reenacted 1948 of title 18 U.S.C.which the Smith Act was a part, the title to that Act explicitly provided that nothing in this title shall be held to take away or repeal the jurisdiction of the courts of the several states under the laws therefore.

What do you say about that?

Mr. Herbert S. Thatcher: Isn't that the same 3231 we're talking about?

Justice Harold Burton: Yes.

Mr. Herbert S. Thatcher: I think it is.

That is a general -- that was a -- that -- that wasn't part of the Smith Act itself as I understood it.

Justice Harold Burton: No, I understand, but it was part of the title of 3231.

Mr. Herbert S. Thatcher: Part of the whole Federal Criminal Code.

Justice Harold Burton: That's right.

Mr. Herbert S. Thatcher: That's right.

Well as I said before, that is a general saving clause and I -- and unless we're going to beg the question, I think it must mean that it's saving state law to the extent that they are otherwise valid, that is in a traditional state field and so on and had nothing to precede it.

Otherwise, as I've said, that section would authorize the State to step into any typical field of pure federal criminal jurisdiction such as a treason or against the United States or such as a contempt of in the federal court or contempt of federal committee.

Pardon?

Justice Felix Frankfurter: (Inaudible)

Mr. Herbert S. Thatcher: That's 3231, but it was there a long time before that, same language.

That was - that's an old -- I don't know how long, but it'd been there since --

Justice Felix Frankfurter: You mean in the general that was in the Penal Code of 1911?

Mr. Herbert S. Thatcher: It was and before that even.

I -- in fact, I think there's some mention about the Houston versus Moore.

It was back that far.

It's been recodified back and forth since.

The last -- last recodification was in --

Justice Felix Frankfurter: I noticed that.

But the -- you're giving it superiority on the position.

I do not gather from what you've said (Inaudible) in the question of what is the function of that purposely.

Mr. Herbert S. Thatcher: I think -- I think it if it follows immediately a cause which states that the federal jurisdiction and federal criminal matters shall be exclusive.It follows that immediately.

And I think it's meant to -- to save the traditional state jurisdiction and in -- a jurisdictional state field such as the Marshall or the counterfeiting case or the Marshall case where the -- where the State has jurisdiction and where the criminal law is on a different plane from I -- I think it must mean --

Justice Felix Frankfurter: Would this clarity have mattered (Inaudible)

Mr. Herbert S. Thatcher: No.

Justice Felix Frankfurter: If that would be the most (Voice Overlap) --

Mr. Herbert S. Thatcher: There wouldn't.

Justice Felix Frankfurter: -- superfluous, wouldn't it?

Mr. Herbert S. Thatcher: That's correct.

Justice Felix Frankfurter: That it must refer to something in which the Court --

Mr. Herbert S. Thatcher: Would have -- would have --

Justice Felix Frankfurter: It's in your panel to decide.

Mr. Herbert S. Thatcher: And that would be in the counterfeiting cases or in the molesting of Marshall or the federal Marshall or that type of case where there is traditionally, you've given examples from the Zook case where there are the two planes of jurisdiction.

And where there is jurisdiction, but it begs the question here to say that that gives jurisdiction to the -- the State.

Justice Felix Frankfurter: It does begin.

I think that begins a reserve.

Mr. Herbert S. Thatcher: A reserve.

Justice Felix Frankfurter: A failure, it doesn't give quite -- what doesn't say.

Mr. Herbert S. Thatcher: It --it uses the -- the very general language.

It certainly isn't the affirmative consent in any event.

It isn't the affirmative consent to the sharing of jurisdiction in the Act that we're talking about, the Smith Act which I say the cases hold the requirement.

Justice Felix Frankfurter: But you -- if this Court decides that there -- that there is no authority of the state court and this Court has stated.

Mr. Herbert S. Thatcher: That is -- that's right.

Justice Stanley Reed: What is -- what's the difference between this clause and the clauses of national banks, corporate national banks, kidnapping and so forth?

Mr. Herbert S. Thatcher: Well in -- in those cases, the -- first of all, there is a traditional state police power jurisdiction without any question.

Now, kidnapping or robbery, and all -- all traditional and not federal --

Justice Stanley Reed: Not to hold on national banks, there is -- what is this (Inaudible)

Mr. Herbert S. Thatcher: Well, bank robbery, that's national or not, that's a traditional state criminal offense, common law offense under -- under any system of Government, I suppose.

That -- that's -- is on a different plane from what we have here.

Here we don't have, in the case of sedition against the United States, a traditional exercise of police power.

Justice Stanley Reed: How old are state punishments of attempt to the state punishments of seditions or treason against the United States?

Mr. Herbert S. Thatcher: Well, the -- the Attorney General --

Justice Stanley Reed: And do you disagree on that?

Mr. Herbert S. Thatcher: Sir?

Justice Felix Frankfurter: (Inaudible)

Mr. Herbert S. Thatcher: Most of them after the First World War and there's been rise of them in recent years.

Justice John M. Harlan: Now, what other position are you on?

Mr. Herbert S. Thatcher: None.

None.

Justice Felix Frankfurter: And that's just the opinion of Mr. Justice Johnson's opinion, used against the (Inaudible) in this case.

The president of the United States were to pardon Nelson for the -- on his conviction in the federal court will he have to continue to serve the (Inaudible)

Mr. Herbert S. Thatcher: That's right.

And also he was very concerned about the problem of dual punishment.

But what's to happen then or the problem of double jeopardy or the problem is a -- for instance, is a, supposing the -- of a person is ineptly tried, a person that's a seditious person is ineptly tried in the state court, like in the bar of prosecution and federal one, there is double jeopardy.

That might do great harm to the national security program.

That's one of the consideration here.

Then we do have -- we do have actual direct conflicts here in the penalties and procedures available.

I suppose the briefing in the Hayes versus Florida and similar cases where there is conflict, that the federal must be deemed to supersede the state would be applicable on -- on that ground.

We have, as I just mentioned, that possibility that the state acts will stand as a bar to or at least, will hinder effective enforcement of the federal law.

Chief Justice Earl Warren: We'll recess now, Mr. Thatcher.

Print this transcript Transcript: 

Argument of Herbert S. Thatcher

Mr. Herbert S. Thatcher: -- against this type of activities with the lost of the Pennsylvania decision below were upheld.

I -- I can't agree with that.

In the first place, our -- our record of -- of convictions and prosecutions in the federal courts of -- on -- under the Smith Act against the Communist leaders on all levels of importance is a pretty complete one.

The annual report of the Attorney General than of the FBI indicate that we can expect the most adequate enforcement at the federal level.

There's no any case and whatsoever of any practical need for the States to step in.

As far as their own citizens are concerned, the States have ample laws in the books as noted by the majority opinion below to take against any breaches of peace or violence or sabotage or any other type of activity other than the nonstate activity of subversion against the United States, subversion against the States as such or again to organized governments still could be prosecuted and protected against.

And, of course, there's nothing to prevent the States from cooperating in every respect and I hope that they do with the Federal Government, then enforcing it.

They have done it in this -- they have done very successfully in the past.

I -- I just don't see as a practical matter, the great need for state law in respect to the subject of sedition against the United States as distinguishing sedition against the States.

We --

Justice Mr. Justice Harlan:: Isn't there evidence here (Inaudible) United States or any other state, that the Federal Government decided the statute regarding to both (Inaudible)

Mr. Herbert S. Thatcher: It would be more difficult, yes, Your Honor.

The majority found that there was no evidence.

Justice Mr. Justice Harlan:: (Inaudible)

Mr. Herbert S. Thatcher: I think it's --

Justice Mr. Justice Harlan:: (Inaudible)

Mr. Herbert S. Thatcher: As applied in this case and it's construed by the Supreme Court in its decision applying it to this case.

I think it's a little bit unrealistic to imagine a world of conspiracy against the State of Pennsylvania.

We -- we all know what we're dealing with, the world conspiracy against the United States and this -- for United States to handle it, this -- it's too much important and --

Justice Mr. Justice Harlan:: (Inaudible)

Mr. Herbert S. Thatcher: -- too much for national concern.

Pardon?

Justice Mr. Justice Harlan:: (Inaudible)

Mr. Herbert S. Thatcher: Yes, yes, I recall that.

Then, we -- we -- we'd mentioned the -- briefly the two punishment acts aspects of this case.

I think they're -- they're very important.

Two of punishment is I think an important aspect of civil liberties as they're mentioned by at least several members of this Court.

Our society is dedicated to preventing undue oppression against individuals.

That's a whole scheme of our American civilization and to assume without any direct indication in the congressional record or in the Act that Congress intended to impose something which would be a keen to oppression.

I think is, to say the least, uncharitable to Congress.

We can't simply assume in other words that Congress intended to impose this possibility of dual punishment not only dual but multiple punishments.

We have municipalities in many States, then -- then in many -- many municipalities and some single States, which shall pass their little Smith Acts and what -- what could be expected to resolve the matter isn't difficult to imagine.

I remember --

Justice Hugo L. Black: You dealt -- you -- you made that statement several times.It's not in your brief, but could you --

Mr. Herbert S. Thatcher: About municipalities?

Justice Hugo L. Black: Yes.

Mr. Herbert S. Thatcher: I think it is.

It's in the --

Justice Hugo L. Black: I -- I don't -- you don't point out what municipalities --

Mr. Herbert S. Thatcher: Well, it's in the brief of the amici -- individual of amici filed by Frank Donner.

Justice Hugo L. Black: Filed by who?

Mr. Herbert S. Thatcher: Frank Donner and it's the amici -- it's called brief of individual amici curiae, white covered brief, what page?

Our -- and in the Civil Liberties, American Civil Liberties in your brief too, I think.

Justice Hugo L. Black: What brief did you say?

I'll -- I'll find it.

You go ahead.

Mr. Herbert S. Thatcher: All right.

Justice Hugo L. Black: I won't take your time.

Mr. Herbert S. Thatcher: On this question of dual punishments, I -- I remember discussing this case with my friends, they say, “Well, what's the difference?

That -- that the fellow get 20 years in Pennsylvania and the other five years and after that in the federal jail and then after that, if he can get extradited to a State which has capital punishment fund.

Well, that -- that concept is, what to me, is the most serious danger in this whole business here.

That brings to mind, George Cannon's warnings in -- quoted by Justice Frankfurter in the Dennis case, that's in -- in attempting to protect -- to protect against Communism or in great danger of becoming like them.

And -- so for those reasons, I -- I don't think that we can be allowed to presume the commerce intended to -- to permit not only dual but perhaps multiple and endless punishment for the identical crime.

It's identical crime that's involved in such case.

Justice Hugo L. Black: There have been the several instances in which Congress has referred to what's called the finding and the Court referred to in several instances of desire of international Communism to destroy the Government?

Has there been any such finding with reference to Communism and destroy in this individual states?

Mr. Herbert S. Thatcher: No, Your Honor.

It's always in a reference to the United States or the nation or some such similar but not --

Justice Hugo L. Black: Were there any --

Mr. Herbert S. Thatcher: -- any individual states.

Justice Hugo L. Black: -- were there any evidence to argue more in this record that indicated that the -- this idea was to destroy the State of Pennsylvania --

Mr. Herbert S. Thatcher: Absolutely none.

Justice Hugo L. Black: -- (Voice Overlap) Federal Government?

Mr. Herbert S. Thatcher: Absolutely none.

But so found by the State Supreme Court of -- part of the -- the statement I read earlier.

Justice Hugo L. Black: I suppose that would raise quite a different question and to approve -- the Supreme Court hasn't said yet.

Mr. Herbert S. Thatcher: It would, Your Honor.

It would, Your Honor, but that's -- that's their finding which has -- I suppose the finding here.

Justice Hugo L. Black: But what -- what has been here, your criteria for determining in this Court whether or not federal acts displaces state acts?

Mr. Herbert S. Thatcher: Well, there had been numerous criteria.

The Rice -- Rice verus Santa Fe Railway case and perhaps it contains a good summary of all the various criteria there is in any single case.

Zook contains much of the applicable law on the subject.

But one of the most important consideration is always is the subject matter of the legislation.

Unknown Speaker: The impossibility that the two are operating at the same time.

Mr. Herbert S. Thatcher: That -- that's --

Unknown Speaker: What you mean?

Mr. Herbert S. Thatcher: That's -- no -- yes.

Unknown Speaker: Tell me -- tell me (Voice Overlap) --

Mr. Herbert S. Thatcher: That the incompatibility or the possibility or that the --

Unknown Speaker: I always think of Kelly against Washington.

Are you familiar with that case?

Mr. Herbert S. Thatcher: Yes, Your Honor.

Unknown Speaker: That the test there as I recall it was whether you could --

Mr. Herbert S. Thatcher: Exists are the same.

Unknown Speaker: -- operate two of it.

Mr. Herbert S. Thatcher: Whether the two could exist side by side.

Unknown Speaker: Side by side.

Mr. Herbert S. Thatcher: That -- that's --

Unknown Speaker: Arizona against Southern Railway or --

Mr. Herbert S. Thatcher: That's true in --

Unknown Speaker: -- Northern Pacific Company.

Mr. Herbert S. Thatcher: That's true in most of the regulation cases, where as I've said before the State, is exercising some traditional and important state police power.

Unknown Speaker: It's allowed to do it.

It involves a dozens of years.

Mr. Herbert S. Thatcher: As long as they don't -- as long there's a direct interference or an inability of this federal law to operate along the side of the State.

Justice Felix Frankfurter: Is that Cloverleaf?

Is that the security --

Mr. Herbert S. Thatcher: That'd be --

Justice Felix Frankfurter: -- of the Cloverleaf?

Mr. Herbert S. Thatcher: -- Cloverleaf.

Justice Felix Frankfurter: Was it?

There wasn't even a federal regulation.

Mr. Herbert S. Thatcher: No, that's true.

That's true.

It wasn't even true there.

Unknown Speaker: Federal Act.

Mr. Herbert S. Thatcher: But --

Justice Felix Frankfurter: The Federal Act didn't touch this, what the state dealt with.

Unknown Speaker: I think it's the other one.

Mr. Herbert S. Thatcher: That -- that's True.

That's the other -- but then, there's -- [Laughter], yeah.

But -- but then, there's the other line that even in -- in the field of traditional state interest in regulation and even in the commerce cases, where there is identicalness of the two statutes.

Federal Supremacy requires that Congress have indicated a consent that the States also -- also act on the same subject.

Well, I'm afraid my -- my time has expired.

Chief Justice Earl Warren: Mr. Stambaugh.

Argument of Harry F. Stambaugh

Mr. Harry F. Stambaugh: May it please the Court.

The counsel has just made the argument that there are other statutes which enable Pennsylvania to preserve order such as a riot statute or arson statute, but the difficulty with these movements is they don't start with riot and arson.

The State can wait.

The blood is running in the streets and remission plans are reduced to ruin.

A communist meeting can be held in imperfect order, no riot.

What the State has to have the power to do is to prohibit advocating overthrowing the Government.

It prohibits selling literature, advocating over or through the Government.

Both the federal Act and the state Act prohibit both those acts and that is why it is absolutely necessary to have a statute such as the Pennsylvania Act, Sedition Act and the Smith Act of Congress.

Justice Mr. Justice Harlan:: (Inaudible)

Mr. Harry F. Stambaugh: I -- I don't have that figure, Your Honor.

Justice Mr. Justice Harlan:: (Inaudible)

Mr. Harry F. Stambaugh: I beg your pardon?

Justice Mr. Justice Harlan:: (Inaudible)

Mr. Harry F. Stambaugh: But this was the -- I think there had been several in Allegheny County.

I'm not familiar with the others.

Counsel has also exert and in this market made in the opinion in a court that the evidence shows not a single act against the State of Pennsylvania.

On the other hand, Mr. Justice Jones says, “Indeed, it is difficult to conceive of an active sedition against the State in our federated system.”

That is not at once an act of sedition against the Government of the United States.

How could they rebel against the United States or institute a movement against United States without -- without also involving the locality in the State without us to begin.

But the -- the Court of Pennsylvania did not pass on the facts of this case.

It caused the indictment.

So in determining this question, we have only to look at the indictment.

Nothing else is before the Court.

That was passed on by the Court.

That indictment specifically alleged the advocating and selling literature for the purpose of over -- advocating the overthrow of the Government of the United States and Commonwealth of Pennsylvania.

So there is an Act squarely alleged in the indictment and that's all that -- it was on the indictment that the decision of the Supreme Court of Pennsylvania was entirely and exclusively based.

Justice Hugo L. Black: The Acts and their distributing literature?

Mr. Harry F. Stambaugh: I think yes and --

Justice Hugo L. Black: I think -- I think --

Mr. Harry F. Stambaugh: -- and advocating.

Justice Hugo L. Black: I think it was that same kind of action in Lovell against Griffin, wasn't it?

Mr. Harry F. Stambaugh: I didn't get that.

Justice Hugo L. Black: I think it was that kind of action Lovell against Griffin in many other cases.

Mr. Harry F. Stambaugh: Yes.

Justice Hugo L. Black: Action of distributing literature.

Mr. Harry F. Stambaugh: That's right.

Yes.

Justice Hugo L. Black: And that's the action -- the only action in which you refer.

Mr. Harry F. Stambaugh: And also advocating -- advocating, that is alleged in the indictment.

Justice Hugo L. Black: By -- you mean with literature or with by voice?

Mr. Harry F. Stambaugh: By voice also.

Justice Hugo L. Black: So that the only action that -- that if you call action delay, what they said and the distribution of literature.

Mr. Harry F. Stambaugh: That's -- that's what is alleged in the indictment.

Of course, if the -- if we go into the record, we will find evidence that this -- this defendant was sent to Pittsburgh to organize a movement to infiltrate the large ammunition industries, the Steel Corporation, the Westinghouse Electric & Manufacturing, Crucible Steel and other -- other companies which during the World War II produced billions of dollars worth of war ammunitions.

Justice Felix Frankfurter: And you -- you frankly urged the liberty of the statute and the -- the life despite the Smith Act on that basis and not because it's the state law dealing with violence or riot or anything like that.

Mr. Harry F. Stambaugh: We -- we --

Justice Felix Frankfurter: Is that right?

Mr. Harry F. Stambaugh: We support it as a law to prevent advocating overthrow of the Government.

Justice Felix Frankfurter: I mean you -- you don't say that the law was misdescribed or -- or mislabeled that is -- this is really a more (Inaudible) in Pennsylvania.

Mr. Harry F. Stambaugh: I do not --

Justice Felix Frankfurter: You say that you have statutes.

Mr. Harry F. Stambaugh: Yes.

Justice Felix Frankfurter: By which Pennsylvania asserted the right and prosecutes people who seek to overthrow or (Inaudible) Commonwealth and Pennsylvania by force and violence, is that it?

Mr. Harry F. Stambaugh: And -- and the Government of the United States.

Justice Hugo L. Black: It's solely by the distribution of literature and what they say.

Mr. Harry F. Stambaugh: And they advocacy, yes, sir.

Now, one -- one of the strongest arguments in favor of what -- what the States believe about this case has been argued that the States perhaps had not done much or much interested in the subject of laws, sedition laws, is that the -- the strongest evidence there of the opinion is the great number of law statutes which had been passed both in the past and recently which shows the prevailing opinion that the States do need protection and that they do need protection against conspiracy against the United States.

The question has been argued what right has the common law of Pennsylvania to make it a crime to conspire or to advocate overthrowing a Federal Government.

Pennsylvania has all that powers on -- of the -- that the House of Parliament has, except those which are delegated with the United States.

It has the right -- it has the right to punish any act which occurs within its limits for a valid reason.

Now, all -- the Acts which were -- which were prohibiting which might intend to overthrow the Government of the United States are all of them acts done right within their territory and then Pennsylvania aim to -- to destroy, what?

The Government of the United States in case of an invasion, the very existence of Pennsylvania would depend on the existence and functioning of the Federal Government.

There's had not an interest to justify Pennsylvania and stopping a conspiracy with an in-zone limits to overthrow the Government of United States.

Congress frequently has passed laws making it a crime for anyone within the United States to organize an expedition to send a foreign country to join a revolutionary movement.

It has prohibited sending ammunitions to one or two belligerent in States in -- in the effort to preserve peace.

No one has ever opposed.

I can find no case such as ever questioned a constitution of power of Congress to do that, yet, all of those acts are done in this country.

Now, surely the bond between the Government of the United States and the State is intimately stronger than any relation we may have with some foreign country.

We have, I believe on the same reasoning, the right to prohibit those acts in Pennsylvania, which might weaken the Government of the United States upon which we must depend for aid in a case of war or invasion.

Justice Mr. Justice Harlan:: The Act as a matter of fact (Inaudible) your act, the Pennsylvania statute in defining sedition goes a good deal further than merely advocating the overthrow of either state or federal government --

Mr. Harry F. Stambaugh: Yes.

Justice Mr. Justice Harlan:: -- by force.

Mr. Harry F. Stambaugh: Yes, it does.

It has some (Inaudible) which are not duplicated in the federal Acts.

Justice Mr. Justice Harlan:: That probably isn't involved here are they?

Mr. Harry F. Stambaugh: Yes.

Justice Felix Frankfurter: That -- that -- if that is so, that -- basically to repeat the question I put to the Attorney General (Inaudible), namely, if the particular provision dealing with the burden that you show the pattern of words, were deemed to have been supplanted by the federal Act, would there be anything left with your statute?

Are there other provisions which could operate which are not overlaps of -- of the Smith Act?

Mr. Harry F. Stambaugh: I think that there -- there might be cases but it wouldn't cover the real purpose of the Act, which is to prevent advocating the overthrow of the Government by force involved.

What was left might be enforced but it wouldn't accomplish the -- the principle purpose of the statute.

Throughout the brief of the respondent is the argument that Congress jurisdiction here is exclusive and that the State cannot pass a Sedition Act without getting permission from Congress.

Counsel bases that argument on the very old case of Houston versus Moore.

And then without going into the details statement of that case, I'd like to read you just what the majority opinion said in its concluding paragraph which was adopted by a vote and that decision was made by a vote of five to two.

And Mr. Justice Washington said, “Upon the whole or under the opinion after most laborious examination of this delicate question that the state court-martial has a concurrent jurisdiction, not exclusive, with the tribunal pointed out by the Acts of Congress to try a Malaysian man who has disobeyed the call of the President and to enforce the laws of Congress against such delinquent and that authority will remain to be exercised and until it shall please Congress to vest -- vest it exclusively elsewhere.

The -- that case went far beyond what we asked the Court to decide here.

And that -- Pennsylvania there adopted a statute providing for a court-martial of a person who refused to obey the call of the President to answer the call from Malaysia.

In other words, where the -- the Supreme Court allowed this Court -- allowed the State of Pennsylvania through a state court-martial to punish a man for violating an Act to the President of United States.

We surely are not going as far as this case.

Justice Felix Frankfurter: Well -- but --

Mr. Harry F. Stambaugh: Yes.

Justice Felix Frankfurter: That has been from the beginning of the country's history that Congress had authorized state court from the beginning until today, state courts are amenable to the Constitution of the United States.

Mr. Harry F. Stambaugh: Yes.

Justice Felix Frankfurter: And the Congress, they decide either divest the (Inaudible) federally created crime in the federal courts exclusively or invoked the federal court or state court or exclusively the state court.

Mr. Harry F. Stambaugh: Yes.

But there, the --

Justice Felix Frankfurter: And this -- this is as I understand it, this is Washington who gave you this conclusion.

At the conclusion, that the -- what the Pennsylvania Act on what Congress did was to utilize the Pennsylvania courts as vehicles for enforcing federal laws.

Mr. Harry F. Stambaugh: No.

If Your Honor --

Justice Felix Frankfurter: Is that right?

Mr. Harry F. Stambaugh: --please, the Act of Congress did not provide for any proceeding by the State.

Justice Felix Frankfurter: No, but -- but that's the way you spelled it out.

Mr. Harry F. Stambaugh: And Justice Story construe the Act as giving -- as giving entire jurisdiction over court-martial in the Act of Congress giving entire exclusive jurisdiction of court-martial to the federal authority.

Justice Felix Frankfurter: Yes.

Mr. Harry F. Stambaugh: That was really the difference between them, the interpretation of the Act.

But there was nothing in the Act that I could find but I wish Congress consented -- consented through the State doing what it did.

Justice Felix Frankfurter: Well, I don't think I -- all I'm saying is -- suggesting is that --

Mr. Harry F. Stambaugh: Yes.

Justice Felix Frankfurter: -- for those statutes in -- in order to avoid declaring the finding unconstitutionality, the courts did or rather (Inaudible)

Mr. Harry F. Stambaugh: Well, they were in a tough spot.

This was -- this was disasters war of 1912 and that it -- the majority of the Court held that on -- and then was not -- the Malaysian man was not within the jurisdiction or part of the Federal Government until he arrived at the place of assembly.

And if a man never left his home, he wasn't under the Act, sorry.

Justice Felix Frankfurter: And so I agree with the preview there because Mr. Justice Johnson, the usual figure, through the first commission.

Mr. Harry F. Stambaugh: Yes, he -- he did not dissent but -- but he did take --

Justice Felix Frankfurter: But you -- you thought there was no trouble in both (Inaudible)

Mr. Harry F. Stambaugh: Yes.

Justice Felix Frankfurter: (Inaudible) by your side.

Mr. Harry F. Stambaugh: He said that in so many words.

You really started the doctrine of two -- an act beginning -- being a crime against two states.

Justice Felix Frankfurter: But he -- he needs to (Inaudible)

Mr. Harry F. Stambaugh: Or he said, well, it may not the same offense, and this has some application here, well, it may not -- it may not the same offense that made punishable both under the laws of the States and of the United States.

Of course, he used the word offense.

Today, we use the word act.

There may be an Act which is an offense against to both the federal and the state governments.

We -- the States do not admit that Congress has the power to -- and know its Sedition Act.

In the Gilbert case, the case of Gilbert -- no it's -- the case of Gitlow versus New York.

This case, the Court said, “In short, there's freedom of speech.

It does not deprive a State as a primarily and essential right of self-preservation which so long as human and governments endure, they cannot be denied.”

I do not wish to present any further.

A question here isn't whether that Congress can destroy or -- or appeal our act and merely stating the position on which the States rely.

Chief Justice Earl Warren: I think, Mr. Stambaugh, your time has expired.