SCALES v. UNITED STATES

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Argument of Telford Taylor

Chief Justice Earl Warren: Number 488, Junius Irving Scales, Petitioner, versus United States of America.

General Taylor.

Mr. Telford Taylor: Mr. Chief Justice and members of the Court.

This case is here on certiorari to the Court of Appeals of the Fourth Circuit.

It's an appeal from a conviction under what is known as the membership clause of the Smith Act.

The case has been here before.

It came here in the 1956 term, after the petitioner had been tried at his first trial and convicted.

And, at that time, the constitutional and statutory questions were argued.

The -- the Court set the case for re-argument at the beginning of the 1957 term.

But before it was reached, the Jencks case, having come down in the mean time, the Solicitor General confessed error under the Jencks case and this Court reversed in a short per curiam opinion on the authority of Jencks, leaving those constitutional and statutory issues untouched that we had argued before.

The case was, of course, remanded.

The petitioner has now been tried a second time.

He has been convicted again.

The Court of Appeals has again affirmed and the case is again here on certiorari.

The principal issues that were argued when the case was here before are here again in substantially the same form.

There are also some important new issues which arise chiefly out of the evidence and the evidentiary rulings at the second trial and out of the intervening decisions of this Court, especially in the Yates case.

And I will come to some of those new questions presently.

But, I would like, first, if I may, to call the Court's attention to the statute which is most closely involved here, the membership clause, which appears in the appendix to our brief, page 2A, because the wording of that clause and its setting in the Smith Act as a whole is rather critical importance to almost all the issues that we have to deal with this morning.

Court will recall, within the Smith Act, paragraphs (1) and (3) deal with advocacy and organizing.

And, most of the Smith Act prosecutions, so far, have been for conspiracy to violate those two paragraphs.

Those are the ones that were involved in the Dennis case, and the Yates case, and the Mesarosh case, and the other Smith Act cases that have been here before.

Then, in paragraph (3), there's a second clause which describes “whoever becomes or is a member of or affiliates with any such society group or assembly of persons knowing the purposes thereof and that such society refers back to a group which teaches or advocates the overthrow of the Government by force and violence.”

Now, this case and a few others, pending in the lower federal courts, have been brought under that clause.

One of them, for example, was up here as a companion case two years ago, the Lightfoot case, and reversed on the same ground under the Jencks rule, remanded to the Court of Appeals in Chicago, and is pending there.

And has been stayed pending the outcome of this case.

Another one is the Noto case from the Second Circuit which is pending here on petition for certiorari now.

Justice John M. Harlan: Were those cases had been tried?

Mr. Telford Taylor: The Lightfoot case has not been tried again.

It was stayed pending the outcome of this case.

The Noto case, Justice Harlan, was tried before this case came up originally has been pending in the Second Circuit a long time.

There are several others that we have listed in our brief.

If I may now state without, at this point, developing the two major issues that were here before and that are here again, the first is the constitutionality of the membership clause on its face under the First and Fifth Amendments.

That clause was not involved in the Dennis and Yates cases and, therefore, it has not yet been passed on here.

And, secondly, the effect on the membership clause, if any, of Section 4 (f) of the Internal Security Act of 1950, enacted 10 years later.

That's set forth in the appendix to our brief, pages 3A to 4A, and that says that neither holding office nor membership in any Communist organization shall per se constitute a violation of any criminal statute.

Now, that clause, we contend, was intended to be and it is a bar to prosecutions of Communists under the membership clause and, therefore, the indictment fails to state a cause of action, state -- state an offense.

The new questions I will come to presently, but let me say now that since this Court has for two days been hearing argument revolving around the Jencks case and 18 U.S.C. 3500.

This case -- the second trial in this case was after both the Jencks decision, of course, and the statute.

And, the trial judge followed the procedures set forth in, I think it's paragraph (c) of the Jencks statute.

That is to say, he examined, in Camara, reports made to the FBI by witnesses of the Government and excised portions that he deemed irrelevant, so that the constitutionality of that feature of 3500 is raised here.

Most of the other questions that the Court has been concerned with the last two days are not.

Now, a word about the facts and the course of proceedings are heretofore in this case.

The indictment is important.

The indictment is to be found on page A2 of the record, first page of the record.

The Court will see, it was very short and simple.

The charge is that the Communist Party is a group that advocates violent overthrow and has done so since January 1946.

The charge is that the defendant, Scales, was a member of the Communist Party and, I may say, that that -- the fact that he was then a member at the time of his indictment is not denied.

It's charged that the defendant had knowledge that the Party was a group which advocated force and violence.

And, finally, it is charged that the defendant personally intended to bring about governmental overthrow.

That last charge lies outside the specific language of the statute because the clause does not, in so many words at least, comprehend intent, as well as knowledge, as an element.

Now, the petitioner was convicted at his first trial and sentenced to six years imprisonment.

The Court of appeals affirmed and it was reversed here, as I've already stated.

The second trial was in February of 1958, a little more than a year ago, found guilty, sentenced again to six years and I may say that, so far as I know, this is the only sentence under the Smith Act which exceeds five years.

There, of course, has been a five-year-ceiling on conspiracy convictions until recently and I know of no other case that is -- that has governed this sentence.

The evidence -- the evidence in the Government's case is summarized in the briefs and, at some length, in the Government's brief.

I think, at this point, it is enough to say that the Government's evidence fell under two general categories.

There was, to begin with, evidence about the doctrinal teachings of the Communist Party which was presented, for the most part, through witnesses who did not know the defendant had never seen him and gave no testimony touching the defendant personally, but who told about what had been said at Communist meetings in various parts of the country, largely, statements made by teachers at so-called Communist schools largely in the 1930s and 1940s.

Then, the balance of the Government's case was largely the evidence of persons who had joined the Communist Party as informants for the Federal Bureau of Investigation in North Carolina and who had known the defendant there and testified about his activities and his statements.

There were some overlap but, generally speaking, that was the scope and nature of the case.

This evidence about the Communist Party as to whether it engages in the proscribed advocacy, that is one of the things which raises important new questions or at least were not here in this form on the previous occasion.

For example, in the Yates case, it was held that, on the basis of the record made in that case in Los Angeles, there was not enough to conclude that the Communist Party advocates force and violence in the sense of the called action.

That it -- and that it did not engage in action in citing advocacy on the basis of the record made there.

Well, the question arises, was there anything in this trial in Greensboro to justify coming to a different conclusion about the Communist Party on the record made in Greensboro, as compared to the record made in Los Angeles.

Then, another important question arising out of that evidence, we contend and I will in a moment develop, that some of the new evidence offered by the Government in an effort to meet the criteria laid down in the Yates case resulted in an unconstitutional application of the statute in this case, so that even if we were to assume that the statute is not void on its face that it had been unconstitutionally applied here because of evidence offered and rulings made thereon.

There are other questions in the case which I will mention, if time permits at end, but I think that those I have described are the major problems.

Now, it will be apparent to the Court from what I've said so far that there are issues here which, if our position is sound, would warrant reversal without touching the constitutional issue.

At the same time, it is equally clear that the conviction cannot be affirmed unless the validity on its face of the membership clause is upheld, so that the constitutionality of that clause it's -- is at the core of the Government's case and is basic to the case as a whole.

And, I would like to begin with the constitutionality of the clause, then pass to its constitutionality as applied here, and then discuss the effect of Section 4 (f) of the Internal Security Act.

Justice Felix Frankfurter: Surely, if you're right about last, we don't have to consider the former.

So, it isn't at the core of the case.

Mr. Telford Taylor: It is at the core of the case if I am wrong about the others, Your Honor.

Justice Felix Frankfurter: Yes, I know, but I am talking about --

Mr. Telford Taylor: Of course, I hope that I'm not wrong about the others.

Justice Felix Frankfurter: The lawyers usually start with the farther streets instead of the one that could dispose of that fact.

Mr. Telford Taylor: Well, the Government will have to be discussing it before long, Your Honor, and so --

Justice Felix Frankfurter: In answer to all and I --

Mr. Telford Taylor: I'd like to say a word of it now.

Justice Felix Frankfurter: I'm expressing my disagreement with the procedure.

Mr. Telford Taylor: Well, I must persist on this issue at this time and before passing to the others.

Justice Felix Frankfurter: I even think privately that you know better.

Mr. Telford Taylor: With respect to the constitutionality of this clause, we have, in our brief, tried to give the Court the benefit of whatever historical background there is on this which may be pertinent.

It is an unusual statute in the sense that it attaches criminal consequences to association by membership.

There have been a few precedence but, as the Court will see from our brief, they are not many and I ask the Court to consider what this statute undertakes to imbue with criminal character.There is no charge that the defendant advocated violent overthrow or anything or that he incited anything.

There's no charge of organizing.

There is no charge of conspiracy.

There is no act charged except for remaining a member of the party.

There is no concert of action or agreement with anyone else charged.

There is nothing but membership and the state of mind.

And, we suggest that the constitutional infirmities under the First Amendment are pretty plain on the face.

Whether we regard these as restrictions on free speech or on freedom of assembly might perhaps be debated.

In Whitney against California, Justice Brandeis, in his concurring opinion, seem to think that both of them were involved when he was analyzing a statute somewhat like this one, and he expressed very grave doubts on behalf of himself and Justice Holmes about the constitutionality of this kind of attributing criminality to association.

It is true that the majority opinion in that case leans the other way, but this Court has said in the Dennis case that the later decisions of this Court have followed the rationale of the Holmes-Brandeis opinion rather than the majority and, of course, that is true.

The Holmes-Brandeis opinion develops, for example, the incitement versus advocacy distinction that was developed by this Court later in the Yates case.

Then, two, I think it's plain that the membership clause lacks the elements that this Court relied on in Dennis in sustaining the other provisions of the Smith Act.

There, we were dealing with defendants who were charged with conspiracy.

They were the people who were supposed to attach this conspiracy in 1945 in New York.

The danger of such a conspiracy was very much stressed in all of the majority opinions.

That's not present here, but I think equally compelling are the arguments that have been made to sustain the constitutionality of the membership clause by the court below and by the Government.

The court below has dealt with this problem simply by saying that conspiracy is the same thing as membership.

I call the Court's attention to what it said there at my brief page 28.

The membership clause is, of course, nothing more or less than a statute denouncing and making criminal a conspiracy to overthrow the Government by force or violence.

Well, with all respect to the learned judge who wrote that, it seems to me utterly untenable.

To begin with, the Smith Act does not punish a conspiracy to overthrow the Government.

That's accomplished by statutes that have been on the books a long time, since the War Between the States.

This is a statute touching advocacy and that is why the First Amendment is brought into play.

Then, this interpretation simply renders the membership clause redundant duplicate of the other portions of the Smith Act.

Nothing is left of it.

It is quite true again that, in the majority opinion in the Whitney case, there are some remarks that might be used to buttress this view that membership is the same as conspiracy.

It seems to me that Justice Brandeis' opinion is very clear on his point and, even if he had not done this task for us, I think the differences between conspiracy and membership are plain enough.

You have to charge if there are coconspirators.

You have to name them if you know the names.

There are no conspirators named here, no coconspirators.

There has to be an agreement in pursuit of some unlawful objective or method.

There is no agreement charged here.

Under the statute, in federal courts, you have an overt act, that's not here.

So, none of those elements that constitute conspiracy, that are part of the safeguards around that defense are present here, and it seems to me wholly impossible to simply say this is a conspiracy statute and punish it on that basis.

Now, the Government's defense of this statute is a little different.

They like the result reached by the court below, but there seems to be some distrust of the logic because they have gone about it a little differently.

They seek to save the statute by extensive judicial amendment by reading into the statute words which are not there.

In our reply brief, on page 2, we have set forth the membership clause as it would be, if you read into it, the various words which the Government seeks to import.

I might say that one word they import is left out of there and that is “intent.”

It is arguable that intent could be implied into the statute.

We think not for reasons given in the brief, but even if that hurdle be jumped then the Government wishes to read in all the italicized words on page 2 there, so it would read “or becomes or is an active court pursued, rigidly disciplined, high-level member of or affiliates with any tightly disciplined quasi-military, deeply conspirational such society.”

Come right back to conspiracy again, not quite all the way back perhaps, as the lower court did, but certainly very close to it.

Well, now, I think that method simply will not do.

What the Government has done, of course, is to confuse what may be proved in a particular case about an individual or an organization with what may be read into the statute and the indictment.

It seems to me, it is indefensible as a matter of statutory construction.

Chief Justice Taft has had something to say about this sort of problem years ago.

He called this making the statute a nose of wax.

He was dealing with an identical situation, a Philippine statute, at which the constitutionality was dubious.

The council made efforts to amend it, just as is being done here by reading in the many words that went there, and this was the phrase that Justice Taft -- Chief Justice Taft used in saying that would not do.

He also observed that the words that are in the statute “or affiliates with,” this covers not only membership but affiliation.

It's clearly suggest to me that Congress envisaged getting at a loser sort of association here than the Government is now trying to confine it to.

Well, I will not labor the arguments on constitutionality further.

I think I have made a fair and full statement of our contentions on it, and I would now like to pass onto the new issues that have arisen here involving the constitutionality as applied in this case.

Justice Felix Frankfurter: May I ask you whether we actually would have to read in more into this statute than the Court read into the Screws statute?

Mr. Telford Taylor: It seems to me, the -- certainly quantitatively and qualitatively, both.

This is a rather more marked departure, but I would have to say, Your Honor, that if the Screws case read as much in, it is wrongly decided, but I don't think so.

Justice Felix Frankfurter: That's the showing of that, isn't it?

Mr. Telford Taylor: The amendments here are really not trying to arrive at a new interpretation of words that are there.

It is the interlarding of many more words that have nothing to do with the case at all.

Constitutionality is applied here.

One of the problems arises out of one of these words that is attempted to be read in here, the word “active.”

When the case was here before, the Solicitor General, in his supplemental memorandum, suggested that the statute should be applied so as to cover only active membership in the party.

I think Justice Harlan, you had considerable colloquy with the Government on that point at the time.

In that memorandum, they suggested that this is not an element of the offense in the sense that it has to be put to the jury and found by the jury, but is what they call an overwriting constitutional limitation to be found by the judge.

Well, we don't think that much can be said for that view but how that might be.

When this case is on trial, the Government requested that the jury be instructed.

They couldn't find him guilty unless he were found to be an active member of the party.

The judge did not make this finding, the jury made it.

Justice John M. Harlan: Can you give me the portion of the judge's charge on that result?

Mr. Telford Taylor: Yes.

The charge is in the -- is in the front of the record there, pages 839 to 841.

Yes, it's on page 841, Chief Justice Harlan.

It was first determined whether he was an active member, not enough that he simply be a member.

Now, in this Court, the Solicitor General has reverted to his original position here and says that that is not a question for the jury, but is a question for the Court, what clear and present danger.

Of course we don't think that the word should be read into the statute.

We don't think, if it were read into, would help very much on constitutionality because, as the Yates case certainly held, activity by itself is insufficient for any criminal implications here.

The indictment says nothing about activity and we made timely objection to the failure to make that -- to allege that element if the Government were going to rely on it as an element of crime.

But, all this now seems rather academic because the Court didn't find activity.

It sent it to the jury and, so, on the Government's own theory, there was error committed by sending it to the jury.

The situation can be better understood in the light of the Noto case, pending here, which was tried before the Solicitor General espoused the activity limitation and, therefore, there was no instruction there about activity.

It didn't go to jury.

So, there is a problem there.

It seems to us that this is one of the pitfalls of reading into a statute, words -- after a case have been tried, words that aren't there and can't reasonably be implied.

Now, another and I think even more serious problem as the statute as applied here arises out of the evidence introduced to meet the criteria laid down in the Yates case.

The Court said in the Yates case that there must be proof of advocacy which amounts to concrete action for forcible overthrow of the Government.

It seems to us that the prosecution, in this case, overlooked those last words, “for forcible overthrow,” and went on the assumption that if you could show incitement to action of any kind that that was going to meet the standard of the Yates case with the result which I will now come to.

The evidence in question here, Your Honors, consists of Government Exhibits 64, 65, and 66 and they appear in the record between pages A18 and A22.

They don't appear.

They are quite complete, but the bulk of the three exhibits are there.

These are three documents which strongly attack American policy in Korea and conduct of the War in Korea.

They are publications a pamphlet, an article, and a book.

And especially Government Exhibit 66 which is this book, extracts and which appear on page A21.

The Court will see that this is a very repellant document.

I will forebear to read what is there, but it is indeed a repellant document.

But, for all the unattractive features of these documents, there's nothing in there that has anything to do, so far as we can see within inciting the violent overthrow of Government.

Nevertheless, these were three documents out of a group of about half-a-dozen that the Government offered at the trial for the specific purpose avowed in colloquy at the bench, which appears in the record here, that these were being offered to prove incitement to action in order to meet the standards described in the Yates case.

There was objection from the defense.There was extensive colloquy.

There was more argument about the -- the judge reserved his ruling.

There is more argument about it after the Government's case closed when we had our motion to -- for a directed verdict of acquittal.

When the judge denied the motion for acquittal, he, at the same time, ruled on this group of documents.

He allowed these three to be received and excluded about three others.

He did not say why he excluded the ones he excluded, why he received the ones that he received.

After they had been thus received, these three documents that aren't guarded, the prosecution then read extensively from these documents to the jury.

They then made a special request that these documents be sent to the jury.

The defense moved for mistrial on the ground that the documents were both remote and exceedingly prejudicial and inflammatory.

That was denied.

The prosecution then, after the evidence was closed, in its summation to the jury, specifically called the jury's attention to this Exhibit 66 here and asked the jury to see whether or not there is language in that exhibit that would incite you to action.

In other words, this document was relied on expressly before the jury to prove incitement.

We asked for charge to -- so the jury would not feel free to find incitement on the basis of this document -- this sort of document alone.

It was denied.

The Government objected and it was denied.

Now, we suggest to the Court that this raises a most profound constitutional problem that if, on the theory of the court below and the Government, documents which are nothing more than polemical attacks on Government policy which consist of publications, books, articles, and so forth which are means of expression expressly protected by the First Amendment, if those can be relied on as evidence of incitement to violent overthrow and if, indeed, the jury can be left free to find incitement on the basis of that alone, that this indeed has ran afoul of the First Amendment.

We think that the theory of the court below that because this is a thing which blackens the Government's reputation and so its dissention, that that means that it is weakening the Government against the potential revolution, that this theory would carry it so far that there will be very little indeed left for the protection of the First Amendment.

Justice John M. Harlan: There's all the evidence in the record on the incitement issue?

Mr. Telford Taylor: Oh, by no means, Your Honor.

There is other evidence on this that the Government relies on incitement.

We do not believe the other evidence is compelling or sufficient, but I do not mean to suggest that this is the only evidence the Government relies on.

But, the judge did leave it open to the jury to find incitement on only this evidence because we expressly requested that they'd be charged, that this alone would not be enough, and the judge refused and there is no other language in the charge that would fill the bill there.

Justice Felix Frankfurter: Did he -- did he charge then that they could find on this evidence alone?

Mr. Telford Taylor: He charged nothing one way or the other.

Justice Felix Frankfurter: Or did he -- or did he reject your charge on the ground that that was otherwise taken cared of?

Mr. Telford Taylor: He rejected it on the ground that he did not wish to advert to specific kinds of evidence.

He may have thought it was taken cared of elsewhere, but I do not think so, and I have read the charge carefully, needless to say, to try to see if there is anything there that could be relied on to fill the same function and I am unable to find anything.

Justice Felix Frankfurter: Do you mean this charge -- this case was given to the jury without a survey, an unbiased fair survey of the evidence of both sides?

This is just an abstract -- one of those awful abstract unguiding charges?

Mr. Telford Taylor: No, Your Honor.

I would not so characterize it.

I suppose --

Justice Felix Frankfurter: But you -- the reason I asked that --

Mr. Telford Taylor: I --

Justice Felix Frankfurter: Because you said he didn't -- he thought it would go into evidence.

Mr. Telford Taylor: Well, he didn't go into any specific evidence and he wouldn't.

He did charge, in very general terms, about the evidence.

We do believe --

Justice Felix Frankfurter: Well, I --

Mr. Telford Taylor: The charge in the respect I am adverting to now is seriously deficient and we made other objections and he denied other requests we made, but this, we regard, is the most serious and crucial lack in his charge.

Justice Felix Frankfurter: I get that but, just for my own information, I want to know because I neatly disapprove of this abstract charges to jury, I want to know whether this complicated case was left to the jury merely on generalities about reasonable doubt and all the rest of it.

Mr. Telford Taylor: I think it's fair to say that it was left to the jury on generalities on reasonable doubt, on incitement, on advocacy, that there was language taken from this Court's opinions that were relied on in presenting the problems to them but there was no discussion of the evidence, I think, in the terms you are asking about now, Justice Frankfurter.

Justice Felix Frankfurter: I've been on to the school that thinks that nothing is felt about the worst way.

That could be one of the worst errors in the charge.

Justice Potter Stewart: Mr. Taylor, was it alleged that -- that the petitioner wrote any of this material on pages A18 to 21 --

Mr. Telford Taylor: Oh, no.

Justice Potter Stewart: -- or merely that he distributed it?

Mr. Telford Taylor: No, the connection with the defendant was simply that he had given these three documents to one of the informant-witnesses who had joined the party.

So, it was connected with him, but there is no evidence that he ever read it or that he invited any part of it to be read.

He may or he may not have.

We do not know.

He gave it to somebody.

Justice Felix Frankfurter: I -- I need some more clarification.

If the judge didn't leave with any evidence in the sense that I've indicated, then I -- then I can -- he can -- then the ground on which he rejected the charge is a valid ground unless you take the broader ground that it's his duty to fairly lay out the evidence for the indictment.

Mr. Telford Taylor: That would be one --

Justice Felix Frankfurter: Because why should he pick one piece of evidence rather than the other?

Mr. Telford Taylor: It seems to me that, in this case, that there was abundant reason to pick this evidence because he had already had to caution the jury on its inflammatory character.

The matter had been much mooted before him.

And it was plain that there was grave argument about whether this was relevant evidence on incitement or not.

Justice Felix Frankfurter: On that, he had to rule.

He ruled on that there.

Mr. Telford Taylor: Yes, he ruled on that and then he then cautioned the jury.

But it was also plain from his caution to the jury that this thing had an impact, and the prosecution had specifically cited it to the jury as sufficient proof of incitement.

Justice Felix Frankfurter: You mean the speech by the -- by the U.S. Attorney?

Mr. Telford Taylor: The -- his summation to the jury.

Justice Felix Frankfurter: But I put it to you, if -- if you ask him to negate it that they may not find him guilty on this specific evidence, you have a right and ask him to negate it that they couldn't find on any -- on --

Mr. Telford Taylor: Well, of course, Justice --

Justice Felix Frankfurter: -- on several items and, contrary-wise, the Government may ask the Court to charge that they couldn't find on this or that or not -- could withhold findings, and that's one of the difficulties, in my point of view, of giving more of this to me or pay the uninformative charges.

Mr. Telford Taylor: We did not ask that the judge single out this document and say --

Justice Felix Frankfurter: But you did ask him if they couldn't find on this or not.

Mr. Telford Taylor: We asked --

Justice Felix Frankfurter: But didn't you make the same request about --

Mr. Telford Taylor: May I --

Justice Felix Frankfurter: Many of the items?

Mr. Telford Taylor: May I direct your attention to the charge which we did asked which is in the record at page A33, proposed instruction number 7.

Justice Felix Frankfurter: What page?

Mr. Telford Taylor: A33, it's near the beginning.

Justice Felix Frankfurter: A30?

Mr. Telford Taylor: A33, yes.

Justice Felix Frankfurter: I beg your pardon.

Mr. Telford Taylor: And, you will see that what we asked was an instruction that --

Justice Felix Frankfurter: 6 or 7?

Mr. Telford Taylor: 7, well, I think it speaks for itself.

I need not read it.

It was an instruction which was phrased in general terms but adverted to the type of evidence that these documents consisted of.

Justice John M. Harlan: May I ask, Mr. Taylor --

Mr. Telford Taylor: Yes?

Justice William J. Brennan: What appears in A40, the paragraph of ladies and gentlemen, if that's all there is in the charge dealing with incitement?

Mr. Telford Taylor: At A40 -- which page, Justice Brennan?

Justice William J. Brennan: A40.

Mr. Telford Taylor: A40.

Justice William J. Brennan: The charge of the act of ladies and gentlemen citing words or languages (Inaudible)

Mr. Telford Taylor: Well, he goes on to the abstract doctrine and went through on the next paragraph, and --

Justice William J. Brennan: But this is the place where he dealt it.

Mr. Telford Taylor: That is correct.

That is correct.

I'm just trying to see if there is any other place later, but I believe not.

I think that is the principal place that he dealt with incitement.

With the Court's permission, I would like to come to the statutory question before my time runs out.

This arises under the Internal Security Act, as I mentioned before.

This provision passed in 1950 which appears in our brief in the appendix, page 3A, “Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of (a) or (c) of this Section or of any other criminal statute.”

What is the effect of that provision on prosecutions under the membership clause?

Now, may I cite first that we know why it is in this statute.

The Internal Security Act provides for an elaborate system of registration of members of the Communist Party.

Would there not be a danger that registration as a Communist would incriminate one and could they not, therefore, decline to registration pleading the Fifth Amendment?

Well --

Justice Potter Stewart: This is the Act of 1950?

Mr. Telford Taylor: 1950, 10 years later, Justice Stewart, yes.

And, this danger which might arise to the functioning of the statute from the plea of the Fifth Amendment was pointed out to Congress by the late John W. Davis in a letter and it was his letter which led to this language now in the statute.

Originally, that language only applied to Sections 4 (a) and 4 (c) of the Internal Security Act itself, but then it was amended on the floor by adding the phrase “any other criminal statute,” and the legislative history shows pretty clearly that that was done with the membership clause in mind.

So, with this language in front of us and knowing the purpose, how do we interpret it?

The Government says that the words “per se” show that this is only to apply to membership without more, that it does not apply to membership plus knowledge and, therefore, is not a part of this sort of prosecution.

The Government uses the phrase “mere membership,” that this is a bar to the prosecution for mere membership but not for membership with knowledge.

We do not think this view will stand analysis.

We think it does bar prosecutions of Communists under the membership clause.

It bars prosecutions unless there is other evidence of criminally significant acts or conducts, such as under the substantive provisions of the Smith Act or elsewhere in federal statutes.

Now, what is the matter with the Government's position here?

To begin with, so that we go to the face of the statute before legislative history, on its face here, Section 4 (f) doesn't apply merely to membership and there are the words “or the holding of office,” so that it goes outside of membership right on its face.

And, the significance of that is rather greater than the mere presence of those words, “office holding.”

In the Government's brief, for example, when they come to the matter of how evidence is to be weighed, we find that the Government, and I'm looking at the Government's brief, page 85, Scales was an officer of the Communist Party.

He had been Chairman of the District of North Carolina and we find, in the Government's brief at page 85, acknowledging his role as a party functionary, that is an officer, petitioner contends that the evidence is not enough to show his knowledge of the Party's character, and so forth.

Then, it goes on.

Of course, Petitioner's status as a leader of such a rigidly disciplined and indoctrinated organization is, in itself, strong evidence against the suggestion that he might have not known what the party was about or might not have purposed the furtherance of its ends.

Now, I don't know much Latin but “in itself” I think means, in simple English, the very same thing as those Latin words “per se” in Section 4 (f).

And, if we are confronted with a situation where being an officer is, in itself, strong evidence of knowledge and intent and if being an officer is not guilt and cannot be under Section 4 (f), it seems to me, plain enough, that Section 4 (f) does comprehend something more than what the Government calls mere membership.

Office holding does carry with it, according to the Government itself, evidentiary implication in terms of knowledge and intent.

So, on the face of the statute, that view, we think, will not stand up.

The Government's position, we think, is also squarely in the face of basic questions and basic principles of statutory construction.

A base -- such a basic principle is to give effect to the words of the statute, so they're not nugatory and redundant.

Section 4 (f) applies specifically to Subsections 4 (a) and (c), and via the phrase “any other criminal statute” to the membership clause.

All three of those statutes, Section (a), Section (c), and the membership clause, all specifically require knowledge as an element of the offense.

So that, if we say 4 (f) applies only where there is knowledge, there is absolutely no statute, no part of the Internal Security Act which can apply, no other statute which can apply, and it is left with absolutely nothing to apply to.

Finally, though, I think we do have to look to some extent of the congressional purpose here and, if we do, it becomes even plainer.

What Congress wanted to do is to create an effective system of registration of Communist Party members.

To do that, it had to, so far as possible, remove the bar of the Fifth Amendment so that people could decline to register on the ground of self-incrimination.

Whether it was successful doing that is not at issue here but, certainly, that's what they were trying to do.

Now, the effect -- the practical effect of the Government's construction here is that only those Communists who do not know the teachings of the party could be required to register.

All the others would remain subject to prosecution under the membership clause for membership plus knowledge, could plead the Fifth Amendment, and defeat registration that way.

So that, it seems to us that, in terms of congressional purpose, this would simply reduce the Act to a futility.

The Government says again and again, in its brief, that it seems inconceivable that Congress would have exempted Communists from the membership clause in 1950.

We think that overlooks that there are a variety of legislative techniques for dealing with Communism and its relation to Internal Security.

In 1950, Congress, we think, made a judgment that it was more important for this registration system to function than to -- than to prosecute members under the membership clause.

It's a very easy one to make.

There had been substantially no prosecutions under the membership clause.

The other provisions of the Smith Act remained available anyhow and, so, it would have been entirely compatible with congressional intent to say it's much more important that we make this machine work than to keep on the books a clause which hadn't been put to any practical use up to that point.

Justice Felix Frankfurter: Now, they could accomplish that by not calling -- by not bringing in the clause of immunity provision?

Mr. Telford Taylor: I beg your pardon, Justice Frankfurter.

Justice Felix Frankfurter: They could accomplish that result by not availing themselves of this 1950 provision.

Mr. Telford Taylor: By not availing themselves of --

Justice Felix Frankfurter: Yes.

Mr. Telford Taylor: I'm afraid I have not followed.

They have availed themselves the membership clause by the fact to prosecution.

Justice Felix Frankfurter: Yes, they did, but I mean they -- they would not -- what you are saying is the 1950 Act automatically goes into effect.

Mr. Telford Taylor: Yes.

Justice Felix Frankfurter: There it is --

Mr. Telford Taylor: Yes.

Justice Felix Frankfurter: The duty and the --

Mr. Telford Taylor: Yes.

Justice Felix Frankfurter: Immunity is part of the duty.

Mr. Telford Taylor: Yes.

Justice Felix Frankfurter: So, it isn't a case where the district attorney has to say “you must testify.

You must incriminate yourself because you get immunity in exchange.”

Mr. Telford Taylor: Certainly not.

Justice Felix Frankfurter: That's just one.

Mr. Telford Taylor: Certainly not.

Certainly not.

The -- there are other points in the case.

I'm afraid the time -- pressure of time will permit me to touch on only two of them very briefly.

There is, as I mentioned earlier, a problem of the sufficiency of evidence under the Yates case here.

The evidence is extensively analyzed in the briefs and in the record.

Our Record A25 to 32 is a replica of our memorandum comparing the evidence here with the -- with the evidence in the Yates case.We think that the Court will be unable to find any evidence of a different kind or evidence which meets the deficiency that the Court noted in the Yates case.

The Government says, in their brief, that there were new witnesses this time.

That is true.

There were witnesses in the second trial here that were not in the first trial but, surely, that is irrelevant.

It's not whether they are new or old.

It's what they say.

And the witnesses that were new in the second trial here were all old witnesses in the sense of having testified in plenty of other Smith Act cases anyhow.

It stands to reason, I think, that when the Government has tried 17 or 18 Smith Act cases over the course of five or six years, it is very difficult to prove different things about the Communist Party the 19th time when you prove maybe the eighth attempt.

In the nature of things, the -- the evidence about the party could not be very much altered and, indeed, it wasn't.

The main thing the Government has relied on here is more extensive evidence of teachings at these party schools and statements attributed to Communist instructors and lecturers.

It may be there is a little more such evidence here than in the Yates case but it's the same kind of thing.

It all took place at places far along with the Petitioner, so there's a problem of connection with the -- with the defendant here, too, that I really don't have time to develop fully but is developed in the brief.

There is a very difficult problem here in the way the evidence was handled and, in the erroneous admission, both in terms of the order of evidence and the kind of evidence that the Court allowed in.

There was what I can only describe as an unchecked avalanche of testimony for a whole week that had nothing to do with the defendant.

Justice Felix Frankfurter: How long was the trial, Mr. Taylor?

Mr. Telford Taylor: The trial took approximately two-and-a half weeks, and I believe I am correct in saying that the defendant's name was not mentioned for about the first six days.

Now, we may assume that some evidence is admissible on the party that doesn't touch the defendant.

Nonetheless, when you have a week of testimony, and some of this is admitted subject to connection, the jury cannot possibly keep such an amount and such a variety of evidence straight as to whether it later is or is not connected up.

We objected at the outset to this order of proof and this volume of proof unsuccessfully.

There is evidence so remote as to be totally indefensible here.

There's some evidence going back to Communist meetings held in 1930 in Seattle, in Cleveland, and New York when the defendant was a pre-high school child.

How he can be bound by testimony of that sort?

I do not know.

There was a lot of testimony about controversial subjects like the Stockholm Peace Appeal, and whether the Rosenberg should have clemency.

And, one thing and another, the Government seemed to think had something to do with incitement of force and violence but which, for the life of me, I cannot see bears on this at all.

That kind of evidence, of course, may be effective with juries in a case of this sort, but all this built up into a mountain of -- of prejudicial irrelevancy from start to finish, a -- a tangle that the jury could not possibly unravel after three weeks of this.Unaided by the instruction, which Justice Frankfurter thought, in a way of charge, might have been helpful here especially.

Justice Felix Frankfurter: How many is the -- are the stenographic minutes of the trial here?

Mr. Telford Taylor: They are, Your Honor.

Justice Felix Frankfurter: About how many pages are there, do you know?

Mr. Telford Taylor: I think I'm right in saying about 2500 is right there.

I would check and tell Your Honor after recess.

Justice John M. Harlan: What do these records represent at the excerpts?

Mr. Telford Taylor: This record represents the agreed, between the Government and defense, selections from that which have been printed.

This -- the first part of it was the appendix to our brief in the Court of Appeals.

The second part is substantially the Government's brief in the Court -- record in the Court of Appeals, the appendix to their brief plus a little addition.

And that -- that is the transcript on the table there, Justice Harlan.

Justice Felix Frankfurter: As between you and the Government, is there available -- are there available more than several stets of the stenographic minutes?

Mr. Telford Taylor: We will be glad to leave this one here.

The Court has one.

Justice Felix Frankfurter: We have one already in the Clerk's office.

Mr. Telford Taylor: We have --

Justice Felix Frankfurter: Have we --

Mr. Telford Taylor: -- some more here.

Justice Felix Frankfurter: Have we one in the Clerk's office?

Mr. Telford Taylor: Yes, sir, there's one in the Clerk's office.

Justice Felix Frankfurter: Maybe the Government would be generous to me.

Mr. Telford Taylor: I will reserve the balance of my time, Your Honor.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of John F. Davis

Chief Justice Earl Warren: Mr. Davis.

Mr. John F. Davis: Mr. Chief Justice and may it please the Court.

The very heart of the petitioner's case is that Congress has attempted to punish guilt by association and that this is unconstitutional.

We agree that a man may not be punished for the sins of others but only for his own fault that can be brought onto him personally.

Any other course would be dangerous indeed since the motives which lead a man to associate himself with others may be quite different from the main motifs of the persons with whom he becomes associated.

A man might join the Communist Party because he was lonely.

He might join it for romantic reasons.

He might not approve of the purposes.

We feel that you've got to bring the guilt onto the individual in order that he may be punished.

But the petitioner's argument depends upon reading the statute in the most unfavorable way that it can be read.

It requires one to read the word “membership” as being the equivalent of being carried on the Party rolls.

Now, it is quite clear from the entire structure of the Smith Act that Congress had something quite different in mind.

In Section 1, they forbid people to advocate the overthrow of the Government by force and violence.

In Section 3, they hold that it -- they make it illegal to organize a machine to advocate the overthrow of the Government by force and violence.

And, in the membership clause which we are dealing with, they make it illegal for a person to make that machine run.

In other words, we would argue here, as we argued in our supplemental brief before the Court last term, that when Congress uses the word “membership,” it means active membership.

It means something more than being carried on the rolls of the Party.

And, it was because of this interpretation that, when the case went back for retrial, the Court instructed the jury that in order to find the defendant guilty, it must find that he was not only a member but an active member of a proscribed organization.

Now, this is not really amending the -- amending the statute by judicial construction.

It's -- it's construing the statute to determine what the intent of Congress was when it passed it.

It is something which the Court does in determining the constitutionalities of statutes day after day.

On membership itself, we find the courts have -- have frequently read the term “membership” in order to determine what would be a reasonable meaning in the -- in the minds of Congress.

I think a very important case in this is -- is Colyer against Skeffington.

It's a District Court case but it's a case which -- which passed directly on it, whether the District Court said that the Immigration Law provision for -- for sending aliens home could not be applied to aliens who accidentally, artificially, or unconsciously, in appearance only are found to be members or affiliated with a -- with a subversive organization.

And we find this Court using the same thought of approach in Bridges against Wixon, where they said that, in that case, they were dealing with the term “affiliation” as well as “membership” but where they said that the affiliation had to be an active thing.

It had to be a giving of aid rather than merely an agreement with the -- with the organization.

And, so, I say that the only -- the only way that this -- that the petitioner can support his argument is by taking a -- a limited meaning of -- of the word “membership” which is very probably, almost inevitably, quite contrary to what the Congress had intended.

And, once we -- once we discard this limited interpretation which is urged by the petitioner, then I think that the case really involves no constitutional question which is different from that which was involved in -- in the Dennis case and in the Yates case because I see no constitutional difference between forbidding persons to organize a -- a party to advocate the overthrow of the Government by force and violence and forbidding persons to make that party operate once it has been organized.

There may be a difference in degree.

It seems to me, there is no difference in kind and, since this Court has met the constitutional problem in Dennis and has really supported it in Yates, I think that it really decide -- it's decided it for this case, nor do I think that the Brandeis-Holmes concurrence in the Whitney case, to which General Taylor referred, is against this.

In that concurrence, they were not really talking about membership as distinguished from the activity.

They were actually talking about both organization and membership, and the question was whether or not the organization and membership, together, constituted a clear and present danger sufficient to sustain the constitutionality of the Act.

The opinion in the very paragraph which is quoted by the petitioner, the opinion flunks the membership and the organizing features into one legal question.

And, in any event, I may say that, in this particular case, on the pec -- basis of this particular record, there is no reason for this Court to determine the constitutionality or the unconstitutionality of the statute as it would be if it were applied to an entirely different set of facts where this is no active membership.

As Judge Hand pointed out in the Dennis case, the statute -- the Smith Act contains a separability clause providing that if the statute shall be held -- the statute or any part of the statute shall be held unconstitutional with respect to any particular circumstance or situation, it shall not affect its remaining in effect with respect to a different circumstance, a different situation.

And so, here, I say that in a situation where you have active membership found by the jury, sustained by the court below, there is no occasion for this Court to pass upon the constitutionality of the application of this particular statute to a situation where there is no active membership.

Now, with this interpretation in mind and with the opinion of this Court in the Yates case in mind as to what Congress intended to outlaw, that is, that it intended to outlaw advocacy of action, incitement to action rather than the promotion of thoughts, of ideas, I think that the next real question is whether or not, on this record, the Government proved its case, whether it proved that the Communist Party as such, and we are not talking now, if you please, about the defendant -- about the petitioner, Scales, we're talking about the Communist Party as such because, under the terms of the Act, the important thing is whether the Party advocates the overthrow of the Government by force and violence.

The question is does this record establish that the Communist Party does engage in illegal advocacy.

Justice Hugo L. Black: Which part of the Communist Party?

Mr. John F. Davis: The Communist Party is -- as a whole and the Communist Party to which the defendant the -- of the United States.

Justice Hugo L. Black: Suppose a -- suppose one of the larger parties, during the days of prohibition that it had just one plank in his platform, open violation of the provisional.

Could membership in that Party have been made a crime?

Mr. John F. Davis: Could membership as itself, per se?

Justice Hugo L. Black: Yes, membership.

You made a crime.

Mr. John F. Davis: Mr. Justice, I don't think that membership by itself can be made a crime in any event, but --

Justice Hugo L. Black: But suppose --

Mr. John F. Davis: Membership in the sense that we have it here.

Justice Hugo L. Black: Suppose it was shown that a person was a member of the Party and official in a county or State, and that one plank in the platform of the Party was open violation of the federal prohibition.

Could, even if convicted of a crime for being a member of that active member of that Party --

Mr. John F. Davis: Not by that --

Justice Hugo L. Black: -- can help us?

Mr. John F. Davis: Not that by itself alone, Your Honor, because that is -- and that is not the case we have here.

Justice Hugo L. Black: Well, suppose it was shown that he was an official of the Party and that he knew that it was advocating the open violation of the prohibition.

It was a political party and that was simply one plank in its platform.

Mr. John F. Davis: And that he intended to accomplish that, as with the --

Justice Hugo L. Black: Well --

Mr. John F. Davis: Involved in this case.

Justice Hugo L. Black: Then it would become the question of how you would show that he intended to accomplish it.

Mr. John F. Davis: Well, the question is --

Justice Hugo L. Black: That would be an additional that you wouldn't --

Mr. John F. Davis: Whether we approved that knowledge and intent in this case, and I intend to come to that, but that is an element in this case.

Justice Hugo L. Black: But suppose it was shown that he not only was a member, but he knew about it and he thought that is a good plank in the platform, but it -- yet, it had many other planks in its platform.

Mr. John F. Davis: Well, I don't -- I think it would be difficult.

In -- in the --

Justice Hugo L. Black: What --

Mr. John F. Davis: -- Dennis case -- in the Dennis case you said that you needed to show his willfulness and intent to accomplish the unlawful activity, that that intent was necessarily a part of the statute, and that's so here.

There must be this intent to carry out the illegal purpose.

Now, if in your case --

Justice Hugo L. Black: Do you have any showing here about any action taken to do that?

Mr. John F. Davis: I am going to come -- when I get through with the evidence as to the Party, I am going to come then to the knowledge and intent of this particular defendant and tying it into the Party purpose.

Justice Hugo L. Black: Then, as I understand your argument, basically, it's not the membership, even knowing membership in a party, by one plank of it is illegal, it's a violation of the law, but you construing this Act as meaning that there must be charge and must be proved actual knowledge and intent and purpose to do that and actively aiding other people to do it.

Mr. John F. Davis: As far as intent goes, I think Your Honors' opinions in the -- it's nearly said opinion, opinions in the Dennis case and in the Yates case, put that burden on us.

Justice Hugo L. Black: In others words, it --

Mr. John F. Davis: I think we have to.

Justice Hugo L. Black: What you are charging is action?

Mr. John F. Davis: That -- no, I am charging we have to prove intent by action, of course, yes, but it doesn't mean that he has to have done illegal things.

Mr. John F. Davis: It has to show that he intended that the Party should carry out, and I should --

Justice Hugo L. Black: Well, suppose --

Mr. John F. Davis: The evidence --

Justice Hugo L. Black: Suppose the Socialist Party, along with all the other planks in its platform, would decide to adopt the plank and confiscate property without paying for it.

That would be illegal.

Justice Hugo L. Black: To confiscate it by --

Justice Hugo L. Black: It's unconstitutional, I suppose.

Mr. John F. Davis: Force --

Justice Hugo L. Black: Without paying for it, and they advocated they were going to take it away from them.

Could membership in that Party be made a crime?

Mr. John F. Davis: Well, not -- again, I say membership per se, there is no argument -- the Government makes no argument that by associating itself, just by associating with the group, that one adopts the aims of the group.

We cannot sustain that.

We have here, under the statue and under the Dennis case, membership with knowledge and with intent.

Justice Hugo L. Black: With knowledge and intent, as I understand it --

Mr. John F. Davis: And membership --

Justice Hugo L. Black: As I understand, that one plank in this platform, if you want to call it that, one purpose is eventually to overthrow the Government or within some -- I forgotten the words.

Mr. John F. Davis: As soon a possible.

Justice Hugo L. Black: Yes, as soon as possible.

Mr. John F. Davis: And, we -- we have felt that, under the decisions of this Court, we're not writing these.

The Court's decisions require this intent that statute itself spells out knowledge and the s -- and the Court itself, in the Dennis and the Yates cases, spelled out intent.

The only new factor in this case is the question of the active membership, and I think that the Court has spelled that out, too, in Bridges against Wixon and the roll out case and the other cases dealing with membership in connection with deportations.

But, the question is -- the first question on the evidence is whether or not the Government proved that this was one of the purposes of the Communist Party because this Court's decision in the Yates case says that, in that case, the Government didn't prove that the Communist Party was a party which -- one of the objects of which was to overthrow the Government by force and violence.

Justice Felix Frankfurter: Did I -- do I gather that, in view of your mention of it a minute ago, I gather that the criterion for determining whether a person charged comes within this feature of the Smith Act is one that you take over from the Rowoldt case or what was said in Colyer against Skeffington?

Mr. John F. Davis: Well, the Rowoldt case isn't as useful as the Bridges and Wixon and the Colyer against Skeffington --

Justice Felix Frankfurter: It may not be as useful but, to make a distinction, it recognizes that there are members and members.

Mr. John F. Davis: That's right.

In that case, it said -- it said in that case, in Rowoldt or in Galvan against Press, it said that, as far as deportation goes, you didn't have to prove that the man knew the entire aims of the Party.

In that case, membership knowing that it was a -- active membership knowing that it was a party was called sufficient.

Justice Felix Frankfurter: The other way around is the important thing that merely -- it seems to me it's the other way around that merely being a member in any formal, or technical, or associative sense isn't enough.

Mr. John F. Davis: That's -- that's specifically Colyer against Skeffington, and I think it's what meant in Rowoldt when the question was did he know that he was as a mem -- was it -- did he know that he was being a member or was it just something formal.

Justice Felix Frankfurter: If I may say so, those cases drew on Colyer and Skeffington because, there, there was a more detailed analysis.

Mr. John F. Davis: Yes, the Colyer against Skeffington I think is, although the court is -- the lower court, I think, that the decision is better from my point of view on that matter.

Justice Felix Frankfurter: You cannot raise it too highly for me.

Mr. John F. Davis: Now, when the Government had to prove, in this case, the Communist Party was a party which was dedicated to the overthrow of the Government by force and violence, obviously, the written materials, the constitution, the foundations of Leninism, the basic text of the Communist Party would be the same.

We don't discover new basic documents in the Communist Party.

The basic documents which were introduced in this case were the same as the basic documents that were introduced in Yates.

Justice Hugo L. Black: As I understand it, from what you answered to Justice Frankfurter, your position is that if you show that a man is a member of a party which has an illegal aim, and he knows about it and believes in it, and works for the Party, he can be prosecuted for his membership in that Party.

Mr. John F. Davis: Mr. Justice Black, I don't mean to evade you.

I don't know whether you, in using the term “a member,” whether you said an active member.

Justice Hugo L. Black: I say an active.

Mr. John F. Davis: Yes, the answer is yes.

Justice Hugo L. Black: Active member of the Party one of -- which has one illegal aim and he likes that aim, and it has other aims.

Mr. John F. Davis: Yes, but he intends to carry out that aim.

Justice Hugo L. Black: Well, also, he has an intent to carry out that --

Mr. John F. Davis: But you've got --

Justice Hugo L. Black: In other words, if it's violating the prohibition law, he --

Mr. John F. Davis: We have to prove it.

Justice Hugo L. Black: He intends to see that that law is violated.

Mr. John F. Davis: That's right.

Then, I would say that you -- that Congress, constitutionally, is not punishing him for association but it's punishing hm for using another instrument to carry out an illegal purpose.

Now --

Justice Felix Frankfurter: You aid enough to buy the liquor himself.

Mr. John F. Davis: That's right.

He is promoting an illegal purpose through his activity, and I see no reason why the Government cannot punish him for it.

The texts were the same.

The basic Communist text for it was the same but, from then -- from there on, the Government tried the case differently and, of course, it tried that case differently.

The Supreme Court had, in the Yates case, had told the Government what it was necessary to prove in order to establish its case, and it proceeded to prove it.

It proceeded to prove that these texts were used in schools, not one school in one place but in schools run by the Communist Party in New York, and in Saint Louis, and in Chicago, and in San Francisco, and in North Carolina, and in other places that these texts were used by instructors, not one instructor but half-a-dozen, maybe a dozen instructors and were interpreted by them to the students of the school as requiring an overthrow by force and violence in order to achieve the aims of the Communist Party.

And, this wasn't just that --

Justice Potter Stewart: What was the vantage of that evidence?

How far up do you go?

Mr. John F. Davis: It -- well, the most recent of those schools was in 1952 or 1953 and that was the one that, in North Carolina, at Walnut Cove in North Carolina.

The other schools, well, the Duran testimony was in 1951 as for San Francisco and, I think, 1952 in Colorado.

Jones' School which were in Saint Louis -- well, I'm not sure.

I have notes here that he was a member from 1947 to 1954 and I'm not sure when he entered the school.

Clontz's School in New York was in 1950.

The Lochner and Hartel testimonies were for earlier schools, but these schools run from about 1947.

The Jones School was in 1947.

The schools run from the middle-1940s up through 1952.

Justice Potter Stewart: We will ask you a general question.

Mr. John F. Davis: Sure.

Justice Potter Stewart: How many witnesses were there in this case that gave what you consider to be significant testimony --

Mr. John F. Davis: Well --

Justice Potter Stewart: But who were not called in the Yates case?

Mr. John F. Davis: In the Yates case?

Justice Potter Stewart: The Yates case --

Mr. John F. Davis: Well --

Justice Potter Stewart: As I remember it, there wasn't a single witness called by the Government, except the isolated instances that the Government put what you call the so-called theory.

Mr. John F. Davis: Yes.

Well, I haven't been able to put my hand on the transcript in the Yates case.

I'm sure it's available to me, but I looked at the printed record in the case, the -- I think that the only common witness in this case was Lochner, and I may be wrong on that, but I -- so far as I could make out, there was very little correspondence in the actual witnesses in this case and in the Yates case.

Justice Potter Stewart: Our recollection is that Lochner did not testify in the Yates case.

Mr. John F. Davis: Well, that may be so.

I may be entirely wrong.

In this case, there were three witnesses who were North Carolina -- who dealt particularly with the North Carolina picture, and then there were five witnesses who dealt with the aims of the Communist Party as such, and I was under the misimpression maybe that Lochner was the common witness.

It may be that there wasn't a common witness.

Well, my associate hand me a note saying, and obviously he hasn't check the -- the transcript since Your Honor reminded, that he says Lochner did testify in Yates and was the only common witness.

The teaching which these lecturers and these teachers gave in these schools was not teaching on a theoretical or economic or maxi and in the political sense terms.

Justice Felix Frankfurter: All you are -- all you are dealing with now, on this line of argument, goes to the sufficiency of the proof.

Mr. John F. Davis: That's right, but the --

Justice Felix Frankfurter: I'm not -- I'm just trying to label it.

That's all.

Mr. John F. Davis: Yes, but it's very important because, in the ta --

Justice Felix Frankfurter: I'm not even saying that.

It is --

Mr. John F. Davis: In the case of Yates, this Court specifically held we hadn't proved enough and the petitioner asserts that we haven't proven anymore here, and I want to assure you that the petitioner has overstated his position.

Justice Felix Frankfurter: No, he wanted to overstate it to put the first position in, didn't he?

He didn't want to subordinate all of the arguments in the case to the main one.

Mr. John F. Davis: The -- I'm not going to spend too long going in this record because I suspect it will be necessary for the Court to spent some time in the record itself but, just to sh -- to illustrate, and this can -- I could multiply this, I assure you I could multiply it, just to illustrate that they are talking about concrete advocacy of overthrow, I want to call the Court's attention to one --

Justice William J. Brennan: You mean advocacy of overthrow or overthrown?

Mr. John F. Davis: Advocacy of forcible -- of overthrow of the Government by force and violence, that they -- the Committee, the Party -- the Communist Party, their teachers, their lecturers were preaching violent overthrow of the Government of the United States.

One of the elements that runs through this record or runs in many places of it is the effort of the Communist Party to develop what is called the black-belt of the Black Nation, that is, to stir up the Negro population.

And, this isn't the matter of merely protecting their civil rights.

This is a matter of instigating them to action.

And, I call your attention to the record, page 391, and we're dealing here with a speaker who came to North Carolina and Scales, the petitioner in this case, asked this witness, his name was Childs, to act as a bodyguard for this man while he made some speeches at various places in North Carolina.

And, at page 391, we find Mr. Childs beginning to tell what this Communist speaker stated.

Well, his speech concerned the Korean War and, in this speech, he pointed out that the Korean War was being used by the capitalists as means of suppressing the Negro people.

He said that -- he said that the capitalist are sending the Negros to Korea to fight the Korean people who are trying to fight for their rights, the same as the Negro people are in the south.

Then, skipping down to the bottom of the page, he says, “here is one paragraph from the speech,” and he'd made notes of it.

So, he read from his notes.

“Do you want me to use his exact words?”

And here is what the witness said.

“In Korea, they are still called Nigers.

Nigers are court-martialed for refusing to have their men slottered.

Lieutenant Gilbert is one example.

They say that the Niger is yellow.

Yellow give the Nigers in North Carolina or in Georgia riffles and tell them to fight for their rights.

Yellow man, you will see fighting like you have never seen before.”

There is other material in this record on this same -- on the same line in connection with the so-called Black Nation and the black-belt, and it is only one of the examples of the kind of -- it shows that this advocacy in this case is not advocacy of some political theory.

It's actual advocacy of action.

They're talking about mimeograph machines in order to -- that can be hidden in the houses, radios for communications, people who can handle money when large amounts of money are necessary.

The -- going under the -- into the underground and the methods of keeping in touch with each other, the record teams with incitements to action.

Now, the petitioner attacks some of this evidence on the ground that it's too strong, that it's unfair to him to have this kind of evidence in the case because it's not tied up with the particular -- with his particular activities.

He would have us walk a narrow road indeed.

The statute requires us to prove that the Communist Party as such is engaged in this endeavor.

We also have to prove his connection with it and his connection with the Party and his intent but --

Justice Felix Frankfurter: How would this speech from which you've quoted say this -- would that speech tied to or in any way tied to the petitioner?

Mr. John F. Davis: No, not in -- not in any -- I don't know that he was there even.

It was in North Carolina.

That's the most I know.

This is introduced to show --

Justice Felix Frankfurter: I don't quite get it.

It says on the page before, “was Scales with you at anytime -- at the time you always had it?”

“Yes, sir.”

“When was that?”

“That was at a speech he gave on Thursday, Wednesday night -- Thursday and Wednesday night at Chapel Hill.”

Who gave the speech?

The record is a little --

Mr. John F. Davis: Well, that was Patterson, but this speech that I'm reading from was made the next day in Winston, Salem, I believe, and I --

Justice Felix Frankfurter: But, that was -- that referred -- he was tied up --

Mr. John F. Davis: It was the same man.

Justice Felix Frankfurter: The same man, that's what I --

Mr. John F. Davis: That's right, Patterson.

By the way, in this -- at this place in the record, all it shows about Patterson, since I've called attention to it, I don't want to have the Court misled.

All it -- it doesn't identify him as being a member of the Communist Party but, earlier in the record, earlier in his own -- in this same record, it's pointed out in one of the exhibits, I don't remember the number, that he was a member of the Central Committee of the Communist Party and, therefore, there is no question of his connection with the Party.

Justice Felix Frankfurter: One would have to read.

That's what I wanted to do.

That would have to read the record.

This speech from which you quoted was at Chapel Hill.

Where did it say it was made the next day?

Mr. John F. Davis: I thought it said in Winston, Salem, Your Honor.

Let me be sure.

Justice Felix Frankfurter: Well, that's made easy.

Mr. John F. Davis: 39 --

Justice Felix Frankfurter: That's what I regard as the Chapel Hill.

Mr. John F. Davis: It may be so.

My geog --

Justice Felix Frankfurter: That's why --

Mr. John F. Davis: Winston, Salem --

Justice Felix Frankfurter: That's why I think it's a wonderful rule --

Mr. John F. Davis: I thought Chapel Hill was a separate town where the University of North Carolina was and that Winston, Salem is where you have the cigarette and western kinds of acts.

Justice Felix Frankfurter: Well, I think this may show there's some disadvantages in these modern improvements, and I was reading the whole record.

Mr. John F. Davis: They were operating in Duran where it not -- where the university -- where Duke is and, in Chapel Hill where the University of North Carolina is, and I think Winston, Salem is a separate town.

Justice Felix Frankfurter: Winston, Salem doesn't appear on these --

Justice Hugo L. Black: On the next page, he said he got to Winston, Salem in 1952.

It deals -- it's not in D.C.--

Justice Felix Frankfurter: That's a different story, isn't it?

Mr. John F. Davis: I made -- I guess it was at Chapel Hill where he made his own -- Your Honor is quite right.

It says that it was Thursday and Wednesday night in Chapel Hill.

In any event, it's important, of course, that we tie in this petitioner with the aims and purposes of the -- illegal aims and purposes of Communist Party.

And, I think that it is done tremendously through the testimony of both Childs and Clontz, who went to the petitioner with request to be instructed in the ways of the Communist Party.

And, their testimony as to his instructions to them detailed about the necessity of there being overthrow through violence.

I mean, he told -- he gave them materials.

He underlined the materials by telling them orally that violence was the only way -- that revolution was the only way that they could ever attain the -- their objectives.

And, then, this witness Childs, who was the last witness in the case, attended a school which -- of which the director was the petitioner.

The petitioner himself was the director of a communist school held at Walnut Cove and there's detailed description of what went on in that school and the -- what was taught in the school.

And, there, they tie it down to the fact that the petitioner himself sat in a small study group with two or three other people while this instruction was being given to the witness.

So, that whatever -- if we have proof that there is -- that this isn't an object, then we have proof that there was knowledge and that there was intent on the part of this petitioner to participate in that purpose.

Justice Felix Frankfurter: Did you say Childs was the last witness?

Mr. John F. Davis: Childs was the -- well, in this record, they've got comings in last --

Justice Felix Frankfurter: This record --

Mr. John F. Davis: But --

Justice Felix Frankfurter: This record --

Mr. John F. Davis: They got --

Justice Felix Frankfurter: Or that even -- there isn't even a list of witnesses.

Mr. John F. Davis: Yet, well --

Justice Felix Frankfurter: I mean, what was organized.

Well, let's set the record.

Being a --

Mr. John F. Davis: No.

You -- there is, it's just out of place, Your Honor.

You find after the appendix, you find the less -- beginning -- just before page 1, the way this record is made up, presumably for saving printing, there's A58 is the appendix to the petitioner's brief.

Then, you find the --

Justice Felix Frankfurter: Page 59 you find the content, is that it?

Mr. John F. Davis: And, you've turned it just to page 1 to find the contents.

No, but I can't -- but that's where I looked.

Mr. John F. Davis: Well, you looked at --

Justice Felix Frankfurter: There's no passing.

I went to A1.

Mr. John F. Davis: A1.

Justice Felix Frankfurter: I thought it was A1.

Mr. John F. Davis: It's just before the page 1 without an A before it.

And, there, you'll find that Childs' testimony begins at 380 and runs through 435.

Justice Hugo L. Black: And (Inaudible) who did it.

Justice Felix Frankfurter: Legal reform.

Justice Hugo L. Black: It's one o -- one of the things we have to deal with.

Justice Felix Frankfurter: You don't have to make a record in which this witness isn't given the function of getting of the --

Mr. John F. Davis: I think it would be better if that page was snipped out and put under the -- in the first column, under the column.

Petitioner has argued here, as he argued below, that in inciting to action, the Government relied upon any incitement to any kind of action, whether it was lawful action or unlawful action.

And, he refers to some testimony with respect to getting people to write to congressmen with respect to the Korean War and some of those of things, and there is a remark -- there is a remark by Government counsel in connection with the introduction of these three exhibits which can be read to mean that this means incitement to action.

And, I think that remark is erroneous.

But the charge of the jury -- the charge of the -- of the judge to the jury is perfectly clear on this.

There was -- General -- General Taylor said that the charge with respect to incitement to action began at page 40.

I would think that it would be better to start with page A -- A39.

I am sorry but it's not 39, it's A39.

The appendix to the -- the first appendix.

And, if you start at page 39, the second paragraph down, and run them through the material which General Taylor referred to, I think you'll have the entire instruction with respect to incitement and I think you will find that it follows very carefully, indeed it would be strange if it didn't, that it follows very carefully the instructions which this Court, in effect, gave in the Yates case.

So that the idea that this jury found incitement on the basis of incitement to legal action, in -- in light of this charge, seems to me is -- is impossible.

Now, I want to turn to the question of construction which arises because of the presence of Section -- subsection (f) in Section 4 of the Internal Security Act.

As General Taylor has said, the Internal Security Act of the section which was involved in -- with this case dealt with the registration of Communist organizations.

And at -- after -- while it was on -- on the floor in the House, a letter was written by the John Davis and by the Attorney General in a second letter, and both of these letters called attention to the fact that this statute might be attacked on constitutionality on the ground that it would require a person to confess a crime by registering.

First, they amended it by saying that the registration couldn't be introduced in evidence, and lawyers in the Congress said that's not enough.

The fact you can't introduce the registration itself in evidence won't give protection.

You've got to go further.

So, then, they introduced this provision, which now appears in the Smith Act, which reads “neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this Section or of any other criminal statute.”

So, insofar as the language is important here is, membership per se shall not be considered a violation of any other criminal statute, and it's agreed that they had the Smith Act in mind when they talked about “any other criminal statute.”

And then, there is subs -- then, there is Section 17 which provides the foregoing provisions of this subject shall be construed as being in addition to, and not in modification of, existing criminal statute.

Now, what Congress was obviously doing here was saying “When we get somebody up for not registering, we don't want them to say we didn't have to register because the statute was unconstitutional because it required us to confess a crime.”

They were saying it isn't a crime to be a member per se, and they say it shan't be a member -- it shan't be a crime under (a), subsection (a).

It shan't be a crime under subsection (c) or any other statute, including the Smith Act.

So, they were saying that no one could escape registration on the ground of constitutionality on that ground.

Now, this may be an aid to -- to construction of -- of the Smith Act.

Indeed, it may show congressional intent long after the event, to be sure, that -- that they didn't mean just membership or just office-holding to be criminal by itself, but it cannot -- I think it cannot be said to show any intent to repeal those sections.

Now, this Court could say, I think, although none of the Courts of Appeals have had difficulty with this problem, I may say it's been up in the Fourth Circuit, the Second Circuit, the Seventh Circuit in the District of Columbia and that, in none of -- in all of those Circuits, it's -- the construction which the Government is urging here has been sustained.

It -- the Court could hold that this was a -- this effected a repeal, but I think that they'd have to do it on the basis that Congress made a mistake.

Congress, in using these words, pulled a bona that they repealed it against their will.

I don't think that there's anything in this legislative history which shows that Congress had that intent to do it.

And, I really can't believe, in view of Section 17, that this Court could reach that construction.

Let me say that if it repeals or modifies the membership clause in this respect, it must equally, I suppose, modify subsections (a) and (c) of the internal -- of Section 4 of the Internal Security Act because it's used in perfect parallel, and I suppose that the -- I suppose the petitioner must argue that Communist Party is -- members of Communist Party are no longer subject to Sections (a) and (c) of the Internal Security Act.

He hasn't made the argument in its brief.

It doesn't sound very convincing, but the provisions are in perfect parallel.

And, if you're going to argue that it is a re -- a modification or appeal of one, I should think that you'd have to argue that it was a modification on the repeal of all three.

Now --

Justice Felix Frankfurter: What you are saying is that all the heir has prayed may give good grounds for saving a person from playing the different punishments.

The valid basis for attacking the duty to register under the Act because the immunity isn't coextensive, is that what you say?

Mr. John F. Davis: Well, I haven't gone so far to say how effective it is and say --

Justice Felix Frankfurter: Well, now, you do.

Mr. John F. Davis: Yes, that the purpose of it.

Justice Felix Frankfurter: Well, it's --

Mr. John F. Davis: I --

Justice Felix Frankfurter: It would be straight Counselman versus Hitchcock that would be important.

Mr. John F. Davis: Well --

Justice Felix Frankfurter: It should mean that senators had shown them their discussion.

Mr. John F. Davis: Well --

Justice Felix Frankfurter: You're a little behind the type of opinion in court.

Mr. John F. Davis: I may be able to argue the Communist case when it comes up here, but I --

Justice Felix Frankfurter: I never stop lawyers by taking one position.

Mr. John F. Davis: I am -- well, I am -- I think that it is not before this Court whether this is effective to say --

Justice Felix Frankfurter: Of course, then we say you're limited to question of the (Inaudible)

Mr. John F. Davis: That's right.

In the -- in this type of Communist -- of Smith Act case, it comes about that the Defense, seems almost automatically, raises certain issues in the case.

If -- they almost always raise a question as to the constitution of the grand jury.

If there's a good question as to the composition of the grand jury, they raise it.

If there isn't a good question, they raise whatever question they can.

And so, in this case, they attack the composition of the grand jury, and they attack it on the basis that the statutes of the United States require, as they doing in fact require, that the names of the grand jurors be drawn from a box which contains the names of 300 qualified jurors.

Now, the -- this attack was made late and there is a real question as to whether it was made in time, and the court below threw it out on the basis that it wasn't made in time.

I'll leave that to the opinion below.

If it was made in time, there is no substance to the attack.

There was a hearing.

The findings of the district judge are included as an appendix to our brief here.

And, you will find that what happened was that the Jury Commissioner and the Deputy Clerk wrote letters to a large number of organizations in an attempt to find the names of people who would be appropriate to service jurors and, when they wrote in these names, the Deputy Clerk and the Jury Commissioner sat down together and they looked over the list.

And, if they found anybody that they believed was disqualified or that they knew was disqualified, they throw it out, if it was a doctor of the -- someone who have been convicted.

The rest, they put in the box without sending a questionnaire to these people to find out whether or not they were qualified first and, at the time this grand jury was drawn, there were about 500 names in the box.

And, the Deputy -- and the Deputy Clerk and the Jury Commissioner testified in the hearing that they, reason -- on the basis of their knowledge of the community, they thought they were reasonably certain, they believe, that there were sufficient number of people in -- of qualified jurors in the box.

Really, the essence of the attack is there should have been a questionnaire sent out to these prospective jurors before their names were put in the box rather than after they drawn and then you ask them whether they had their qua -- their qualifications.

There's not an indication that a single name in this box was of an unqualified person.

As I say, I think that the -- there's no substance to this attack on the grand jury at all.

Then, we come to the question of the admissibility of the evidence.

The petitioner takes two rather inconsistent positions on this.

First, they argue that the Government relies on Communist activities wholly unrelated to the defendant and that this was improper, and that it didn't -- and, in any event, it didn't prove incitement.

Well, under -- under the terms of the statute, it was essential for us to prove not that the Communist Party in one locality was the kind of an approach -- organization which was proscribe, but the Party as such was the kind of an organization proscribed and, because of that reason, we couldn't limit it to individual persons in North Carolina.

We had to take the Communist Party as such because that's the Party that was involved here, and we proceeded to try to prove this but, now, the second objection comes that we've proved it too much.

We proved -- we present prejudicial evidence about the nature of the Party's aims and we proved incitements to violence which are so strong, it just said, that the counsel can't read them in this Court.

Well, I think that -- I think that the court below decided these questions with a good deal of common sense.

It spent very little time with them.

It's -- it fine -- it reads the Act and said you have to prove this.

And, as to over-proving it, that's a question of judgment for the Court and the Court -- the courts found that these matters were material.

I haven't -- I haven't even mentioned the Jencks Act point in this case, and I don't propose to go into it unless there is something about its application to this case that this Court is interested in.

I would like to tell the Court, though, exactly what went on so they can see how the Jencks Act did operate in this particular case.

The case was tried after the Act has been passed, and many of these witnesses had been reporting repeatedly to the FBI, so that there were voluminous reports made by these witnesses on the subject matter which -- as to which they testified.

This material, all of it, including grand jury material which the Court said they didn't believe they had to turn over under the Jencks Act but the Court said “we'll let them have it anyway because, on my discretion, I'm going to exercise my discretion to let them have it in this case.”

All of the reports and also the grand jury proceedings were taken by the Court and exertions were made, well, exertions were requested by the Government.

They turned it over -- they turned over excised copies of the documents and they turned over un-excised copies, and the Court compared the two to determine what had been excised and whether it was relevant in any way to the subject matter which was under discussion.

Justice Felix Frankfurter: Were the excised portions were before the Court?

What's all (Voice Overlap) --

Mr. John F. Davis: Yes, they --

Justice Felix Frankfurter: -- full page?

Mr. John F. Davis: They had a double -- they're in the -- they're in the files of this Court, the excised and the un-excised documents.

And, the Court went over them and turned them over to counsel for use in cross-examination, and how the counsel -- how Defense counsel could try the case with that volume of material to go over, I can't dream because there are two cartons of these reports down there.

And, I'm sure that this must have proved the arduous task for Defense counsel to try to go through these reports and getting it out in the night, they must have had no sleep during the trial if they read all these reports in preparation for cross-examination.

But, the materials were turned over and the only objection in this Court is, really, to the constitutionality of the Jencks Act.

Was it proper to let the -- well, there is an argument on ex post fact -- that this is ex post facto but I won't even -- I'll leave it to the brief to take care of that.

The real question is whether or not it was constitutional to let the Court look at these and determine whether they were materials which were not material to the testimony which had been given in the Court.

Justice Felix Frankfurter: Were all to -- did the Government submit the reports of physical full contents and of physically excised contents?

Mr. John F. Davis: Excised.

Justice Felix Frankfurter: And did the Court grant the -- all the excisions of the --

Mr. John F. Davis: Not all of them, although, almost all of them but there were -- there was a re --

Justice Felix Frankfurter: The record shows that the Court eminently went over and excer -- and whether -- but the Court did examine the originals, in relation to the testimony, as to which potentially impeachment would result.

Is that right?

Mr. John F. Davis: The record -- yes, the record does show this and there -- much of what went on was -- went on in chambers and isn't in the record but I am -- I think I'm safe in saying that what is actually stated in the printed record in the trans -- in the transcript is -- which was what happened in the Court is sufficient, so that you can get that from it.

Justice Felix Frankfurter: And the -- and the claim here is that they were entitled to the entire document without explanation.

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: Meaning, for them to decide what is and what is not relevant.

Mr. John F. Davis: That is -- that's the point.

Chief Justice Earl Warren: General Taylor.

Argument of Telford Taylor

Mr. Telford Taylor: Mr. Justice Frankfurter, the record is 2225 pages long.

We find we are, if anything, better equipped with records than the Government, so were going to leave one of our sets with the Clerk so there will be an extra.

Justice Felix Frankfurter: Thank you very much.

Mr. Telford Taylor: As for your request.

My very able adversary started out by saying that guilt by association is the core of our case on constitutionality.

I do not recall using the expression on argument, and I do not regard it as the core of our case on constitutionality.

There are people who do.

The distinguished lawyer John Lord O'Brien is -- has written to that effect but this matter of guilt by association seems to me to go more to the -- to a sort of due process question of what sort of evidence can connect you with a criminal group rather than to the First Amendment.

The -- if there is any single core to our case on constitutionality, I would suppose it is more to be found in Justice Brandeis' concurring opinion in the Whitney case where he points out that a statute such as this, covering membership, establishes guilt because the accused is to be punished not for contempt, incitement, or conspiracy but for a step in preparation which, if it threatens the public order at all, does so only remotely.

Justice Felix Frankfurter: Did that -- does that phrase “step in preparation” with affirmation to the law” attempt -- that's a question of causalities, remoteness, in other words, that --

Mr. Telford Taylor: Yes, I would say so.

He's --

Justice Felix Frankfurter: Qualify to buy some matches in order, eventually, to use those matches to light something that may be a little remote, is that it?

Mr. Telford Taylor: I think that is the idea.

He goes on to speak of the novelty of the statute and that it punishes not even the even the preaching of it but association with those who propose to preach it.

So, he is clearly relating it to what I would regard as assembly -- freedom of assembly in the First Amendment.

Now, our construction of the membership clause here does not, I think, rest on so bare a construction of the wording, as Mr. Davis suggests.

We do agree that there is room for the interpretation of statutes, even for the purpose of trying to make them constitutional, but we think that the Government has gone much too far here as is shown by that comparative point in our reply brief, especially when they try to bring this all the way to conspiracy by saying this covers deeply conspirational groups.

When you've gone that far, you have gone much too far beyond the permissible bounds and you have twisted the “nose of wax,” to use Chief Justice Taft's phrase.

And, you have also, really, read the membership clause out of the statute because you made it the same as the preceding conspiracy portions, and Mr. Davis didn't really advert to that feature.

He does speak a good deal about this problem of activity.

Now, we really don't believe that even if you would read “active” into the statute that that is going to be very much help on constitutionality.

In the Yates case, there was a very careful survey of the evidence pertaining to individual defendants.

If activity, by itself, were to be an index of constitutionality here, I would have assumed that all those defendants in the Yates case were rightfully convicted and that the Court would have been wrong in reversing as to five of them because those five who, and which the Court even barred a new trial, included people who are very, very active, people who were journalists in charge of Communist press, who were turning out some material that they certainly hoped would sell dissention and blacken the reputation of the Government.

But, the Court said that those were simply lawful activities.

The mere fact that a person is active without more doesn't seem to get us anywhere, it seem to me to get us anywhere in terms of constitutionality.

Now, it is perfectly true, as Mr. Davis says, that the Prosecution submitted the issue of activity to the jury here -- I mean, the judge did, on the Prosecution's request, but I look at Mr. Davis' brief on page 67 and I see in his brief that he says that it shouldn't have gone to the jury at all.

That it ought to have been decided by the judge.

So, I'm still a little at a lost as to what would have been the proper procedure here under his theory.

In connection with this matter of construing the membership clause, I would like to reiterate that the clause contains a prohibition against being an affiliate of the Communist Party.

As far as I know, the Government has never sought to bring a case under that clause.

Perhaps there are constitutional worries about it in addition to those in the rest of the clause, but the presence of that, seems to me quite clearly, indicate that Congress did not have this very restricted quasi-military conspirational theory of membership that the Government here is contending for because, certainly, affiliation means some kind of a looser, looser and lesser connection with the organization than membership.

And, I note, finally, on this portion of the argument that the Government itself when it is not considering constitutionality but is dealing with what evidence is necessary to support a conviction here, it construes this clause in quite a different, and, it seems to me, a much more satis -- much more reasonable way because when they're dealing with the evidence, they say at page 77 of their brief, that, in a membership case, it suffices to prove that the Party as such, and not necessarily including the defendant, engaged in the forbidden advocacy and that the defendant was a member of the Party with the necessary knowledge and intent.

Justice Hugo L. Black: Did you say 77?

Mr. Telford Taylor: 77, footnote 33, toward the end.

So that, when their -- when the Government's mind is not on constitutionality, they put this clause in the very bear terms that we think the statute speaks.

Now, could I just make a comment about the question Justice Black asked about that prohibition statute.

Our situation here is I think a harder case to sustain the statute than to sustain the application of the statute here than the one that Justice Black gave.

We don't have a case here where there is no organization which, in its platform, puts in what you might call an illegal plank.

There's a plank advocating illegality.

If you look at the platform of the Communist Party, you will find not only that they eschew force and violence, but provisions in there for the expulsion of anybody who advocates it.

Now, the Government's theory and evidence they have brought in support of their theory is, of course, that those words in the platform are spurious, Aesopian, the words that's been used, and that there is a secret agreement among the leaders of the Party to preach unlawful incitement to advocate unlawful action.

So that, what we have here is not a case of an openly proclaimed illegal aim, but a secretly advocated illegal aim, if anything.

And, that is why this question of connection with the defendant is so important.

If illegal advocacy were in the platform of the Party, you could quite reasonably hold the members to some knowledge of it because this would be a publicly proclaimed aim but, as soon as you depart from that and are talking about some kind of a private and secret agreement among the leaders not reflected in the public announcements then, certainly, the defendant who is tried for membership should not be bound by this -- the secret advocacies unless it is shown that he had knowledge of it.

And, that brings us to some of the remarks that my adversary made about schools here.

Justice Harlan asked the date of this new evidence that's come into the case since Yates.

It is quite true that there is evidence about this school in North Carolina in 1952, which the defendant attended, but I think I am right in saying that the evidence about unlawful advocacy, on which the Government chiefly relies, was at other schools.

And, it is very difficult to find in the testimony about this school in North Carolina any of this violent advocacy that he quoted some from in connection with these other schools.

On the matter of witnesses, Justice Harlan, I do have here the appendix to the Government's brief in the Yates case and it is a fact that Lochner was a common witness in Yates and here.

I believe it also to be a fact that there were no other common witnesses between Yates and Scales, but the other witnesses in Scales were common witnesses with many other Smith Act cases which were disposed of in the lower courts, following this Court's decision in Yates.

They were not new witnesses in the sense of being their testimony about the Party being new and different from what have been testified about in other cases.

I gather that the Government chiefly relies on the circumstance that there was more voluminous testimony about what was said of these schools and perhaps more violent language.

Now, I think the story here is really quite clear.

It's all in the Yates case.

It is quite clear on the Yates record that, after this reconstitution of the Party in 1945 when there was this return to the Doctrines of Marxism and Leninism, there was a great campaign through these Communist schools to what they called reeducation to bring the Party members back to the Doctrines of Marxism and Leninism.

And, most of these statements were made in the course of that so-called reeducation program.

Now, in the record of this case, and I'm sorry about these As and other things that are confusing about the record, the reason for it is, in order to --

Justice Felix Frankfurter: I finally caught on.

Mr. Telford Taylor: Thank you.

You will find in the A part of it, the beginning part of it, that we made an analysis of the evidence here as compared to the evidence in Yates, between pages A25 and A32.

Almost everything that Mr. Davis spoke about and almost everything that his brief speaks about, you will find referred to with chapter and verse to the Yates record as being a duplicate.

This campaign of reeducation of Communist Party members in this extensive lecturing in schools about the inevitability of force and violence is all in the Yates case.

For instance, at the top of page A29, you will find the references where that would be found in Yates.

There is, I assure the Court, nothing new in quality about this record and I think, in the nature of things, there couldn't have been.

Justice Hugo L. Black: Because there are 2400 pages of whatever it is and it includes all the exhibits?

Mr. Telford Taylor: No, that is the testimony only, Justice Black.

Justice Hugo L. Black: I mean, the exhibits are.

Mr. Telford Taylor: Well, the exhibit I was talking about was Governments Exhibit 66, and I'll recall it later on.

I think there's about 130 Government exhibits.

Justice Hugo L. Black: Are they shown or not?

Mr. Telford Taylor: Some of them are very long, I'm afraid.

Some of them are books by Lennon and Trotsky, and even older ones than that.

Justice Hugo L. Black: Books?

Mr. Telford Taylor: Books.

Others --

Justice Hugo L. Black: Did they have time to read those?

Mr. Telford Taylor: They certainly didn't have time.

They had opportunity.

They were taken to the jury room along with these documents about the Korean War.

I just wanted to close with one reference to those documents about the Korean War, which Mr. Davis said I thought advoc -- incited so strongly that I didn't want to read them to the Court.

Of course, my point was they don't incite to violence at all.

That isn't what they do.

They might incite to violence against the man who wrote the book.

This is conceivable.

The -- there's a repellant document but, in the terms of inciting anybody else to take any illegal action toward the Government, there is nothing in there that bears on that.

It is simply a repellant attack on Government conduct to the War and, it seems to me, have nothing to do with the issues in the Yates case.

Justice Felix Frankfurter: Before you sit down, I'd like to ask you the question of doing -- about the Whitney case and its bearing.

Mr. Telford Taylor: Yes?

Justice Felix Frankfurter: Since you, naturally enough, find this great comfort in the opinion -- the concurring opinion.

As I recall the case, and I now read the opinion and I now reread it, a comfort of this kind, it concerns -- it tells of two matters or, rather, it involved two matters that are relevant to the problem in this case, namely, the responsibility of Mrs.-- of Ms. Whitney in that case that gives here, through membership, what responsibilities, particularly what criminal responsibilities, may be derived from or attributable to membership and, secondly, membership in what, namely, the organization in which there is membership?

Now, to my reading, to my understanding of Justice Brandeis' concurrence, he was concerned, and gave clear expression to his view, that an organization expanses proletarian uprising or revolution far in the future is not an organization who that impinges a power.

That kind of an organization, that kind of an enterprise would urge that, way in the future, there should be a mass uprising.

But, that's too remote, as I gather from his opinion.

That's too remote.

It appends the clear and present danger of his prior talk, his prior use.

Are you with me thus far?

Mr. Telford Taylor: I am.

Justice Felix Frankfurter: Good.

Therefore, I think --

Mr. Telford Taylor: I mean, I am following you.

I am not --

Justice Felix Frankfurter: I mean --

Mr. Telford Taylor: I am following you.

I haven't agreed.

Justice Felix Frankfurter: Well, correct me.

I wish you would, before I go into the next question.

That isn't all there is.

Perhaps, I better state the whole thing and then you could answer.

He is objecting to the “far in the future” if this is too remote to shut off even the promotion of eventual proletarian mass uprising.

Now, I think that's a good statement of which to give the Dennis decision, both below and here, because the Dennis decision did not take that view.

The mere fact that it was in the future didn't prevent eminence of danger.

This isn't the time to discuss the rightness or wrongness.

I am talking about accepting that decision.

It seems to me to collide directly in what Brandeis said in his concurring opinion.

But, when you come to the next point, he didn't discuss how much of an activity a member must had in such an illegal organization because he goes on to say and, hence, his concurrence, hence, his agreement in the judgment in that case that because that organization promoted present violence, Ms. Whitney's membership in it was a basis for finding her guilty.

Mr. Telford Taylor: Now --

Justice Felix Frankfurter: Now --

Mr. Telford Taylor: May I call the Court --

Justice Felix Frankfurter: Therefore, I can understand the reexamination being requested or a challenge to Dennis on the basis of what Brandeis' concurrence if you are far in the future.

But, so far as our problem as to membership is concerned, apparently, if you got an organization which promotes violence or something that's outlawed, then mere membership brings the Party subject to guilt.

Mr. Telford Taylor: May I now comment?

I do not believe, Justice Frankfurter, that the opinion in the Whitney case -- this peculiar opinion involved any assumption that the organization there was advocating the revolution far in the future.

What the Justice --

Justice Felix Frankfurter: That's what he said.

Mr. Telford Taylor: Excuse me.

Justice Felix Frankfurter: Let me read it to you.

Mr. Telford Taylor: Well --

Justice Felix Frankfurter: “I am unable to ascend to the suggestion and the opinion of the Court that assembling with a political party formed to advocate the desirability of a proletarian revolution for a mass action that's someday, necessarily --

Mr. Telford Taylor: Necessarily.

Justice Felix Frankfurter: -- far in the future --

Mr. Telford Taylor: Necessarily far in the future --

Justice Felix Frankfurter: -- it's not a right against the protection of the Fourteenth Amendment.”

Mr. Telford Taylor: I think all he is saying there is that the circumstances at the time, being what they are, the likelihood of any revolution other than one far in the future is very small, but he is --

Justice Felix Frankfurter: That's what I meant to say.

Mr. Telford Taylor: He --

Justice Felix Frankfurter: But admit that he did.

Mr. Telford Taylor: He -- excuse me.

I think he was saying that the revolution, if it came at all, would be far in the future but he wasn't saying that the Party only advocated it far in the future.

The Party which is there, two different organizations actually, IWW and another, didn't say “We are only going to advocate this far in future.”

Their advocacy was just as present as here, and all that Justice Brandeis is saying is that, “Really, I don't believe it's likely to come until quite a long time from now.”

Justice Felix Frankfurter: All I'm saying is --

Mr. Telford Taylor: So, I don't think --

Justice Felix Frankfurter: -- the Dennis case said that doesn't make a difference.

Mr. Telford Taylor: The Dennis case, like this one, involved a present advocacy under circumstances where the action might not come until the future, but I think the Justice's -- Justice Brandeis' opinion here is quite clear that he was much concerned with the degree of association with the organization.

The part you read is a part of the opinion eight pages after the part that I have been reading for.

And I think, in the earlier part, he makes it quite clear that he is troubled about the remoteness of an -- a membership association with a criminal element here.

Justice Felix Frankfurter: So, I'll -- I'll read the next sentence.

“In the present case, however, there was other testimony --

Mr. Telford Taylor: Yes.

Justice Felix Frankfurter: -- which tended to establish the existence of a conspiracy on the part of the International Workers of the World to commit present serious crimes and, likewise, to show that such a conspiracy would be furthered by the activity of the society, not of Ms. Whitney --

Mr. Telford Taylor: The other one.

Justice Felix Frankfurter: -- by the activity of the society --

Mr. Telford Taylor: The other one.

Justice Felix Frankfurter: -- of which Ms. Whitney was a member.”

And, I am saying that the policy --

Mr. Telford Taylor: That is why it was a concurring opinion, Justice Frankfurter.

Justice Felix Frankfurter: That's right.

That's --

Mr. Telford Taylor: That's what --

Justice Felix Frankfurter: I am suggesting that the argument of the Government which has to be met here that this defendant who was a member of an organization, the activity of the society, the activity of the society was outlawed, I'm not leaning to the view by putting the question necessarily.

I'm saying that he was concerned with if the society, as I read English, and nothing in the preceding figures qualifies this, if the society was a society that furthers illegal present crime then the fact that she's a member, and all the members of such a society, is sufficient.

Mr. Telford Taylor: Well, I'm sorry to trespass so far on the red light, but I think there are several things in this opinion which is eight or nine pages long and his concurrence was based on testimony linking her with a quite different organization than the one he was talking about in the first part of the opinion.

And, therefore, the earlier part of the opinion dealing with this other organization, what he is talking about is the degree of association with it.

Now, since the statute punishes not only membership but organizing and since there were still other evidence of present crimes, as he mentioned, that is why he concurred.

And, he said it at the same time that if the clear and present danger problem had been raised below, why, then, we would have been confronted with all these constitutional problems, right of assembly, which she is talking about at the part of the opinion that -- that appeals to me, Justice Frankfurter.

Justice Felix Frankfurter: My whole -- my whole question addressed itself to this point, but there's one question as to the purposes and the activities of an organization.

That has to be answered in the first place.

If that is so remote from his point of view then it isn't a mere danger, then, the mere danger doctrine makes it too remote.

And, the second question is the relation of a person in association.

You read that --

Mr. Telford Taylor: There are the two questions, yes.

Thank you, Mr. Chief Justice.