NOTO v. UNITED STATES

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Argument of John J. Abt

Chief Justice Earl Warren: Number 9, John Francis Noto, Petitioner, versus United States.

Mr. Abt.

Mr. John J. Abt: Thank you Mr. Chief Justice.

May it please the Court.

This case, like Scales, involves a conviction under the membership clause of the Smith Act.

The two indictments are identical in form and were returned within about 10 days of each other in 1954.

Noto was tried in the Western District of New York in 1956, about a year after the first trial in Scales and his conviction was affirmed in the Second Circuit in 1958 shortly after the affirmance of Scales' conviction by the Fourth Circuit.

The two cases raised the same questions with respect to the constitutionality of the membership clause and the effect of Section 4 (f) of the Subversive Activities Control Act.

And I shall have something to add to what has already been said on these questions a little bit later.

However, I do not think that it will be necessary for the Court to reach these questions in this case because under the standards of Yates versus United States and Nowak versus United States, the record in this case unequivocally demands the -- a judgment of acquittal for the petitioner.

At the trial, the petitioner did not dispute that he was a member of the Communist Party and that he had held leading positions in the Party in its western New York organization.

The indictment, like the Scales indictment, contained no allegation and unlike Scales, the Court here gave no instruction with respect to what the Government now calls the activity factor.

Since the Government didn't discover the existence of that factor as an ingredient of the offence until several years after Noto's conviction.

The issues therefore at the trial were whether petitioner have the knowledge and the intent charged in the indictment.

The indictment charges that Noto had knowledge that the Communist Party was engaged in advocating forcible overthrow.

This Court held in Yates at the advocacy proscribed by the Smith Act, his advocacy of action as distinguished from advocacy of belief.

Obviously, petitioner couldn't know that the Party was engaged in such advocacy, that is to say advocacy of action, if in fact it was not.

Accordingly, the prosecution was required to prove that the Party incited action for forcible overthrow and the trial court so instructed the jury.

This, of course, is a proposition with respect to the Communist Party that this Court held that the Government had been unable to prove in the Yates case, stating that the record on this issue was strikingly deficient.

Similarly, the Second Circuit held that the same proposition had not been proved in two Smith Act conspiracy cases that followed the Yates decision.

In the present case, however, the court below never considered whether the evidence in this case supply to deficiency which had been found in the records in these three earlier cases.

Instead, it held that the incitement to action standard is inapplicable to prosecutions under the membership clause.

This appears both from the Court's explicit statement to that effect and from its failure to mention or apply the standards in delineating the issues and discussing the sufficiency of the evidence.

And I'll call the Court's attention to the record at page 449 for the explicit statement by the Court and 439 to 442 for delineation of the issues and discussion of the sufficiency of the evidence.

The Court seems to have thought that Yates is inapplicable because the accused in a membership case has not charged himself with advocating anything and because for some reason that the Court never stated, the incitement standard does not apply to the advocacy of the organization.

By reading incitement out of the membership clause, the Court sustained the conviction on a record which has its own statement of the evidence at the point in which decision to which I've already referred the Court shows, differs in no -- nor in significant respect whatsoever from the record which Yates stated was strikingly deficient.

Justice John M. Harlan: Doesn't the -- doesn't the -- or did, let me ask you this question.Did the trial court charge incitement?

Mr. John J. Abt: Yes, sir.

I've already indicated that trial court gave an instruction on incitement --

Justice John M. Harlan: So the case was -- in this respect, the case was submitted to the jury on standard to satisfy Yates.

Mr. John J. Abt: That's correct, Your Honor but never reviewed by the Court of Appeals on the instant case.

Contrary to the court below, the Solicitor General here --

Justice Potter Stewart: Now, just before you go on Mr. Abt --

Mr. John J. Abt: Yes.

Justice Potter Stewart: -- I -- I had read the language of the Court of Appeals as meaning that there's no necessity to prove the active advocacy by this individual defendant but not has meaning that there was no necessity to prove the active advocacy by the organization in which he was a member.

Mr. John J. Abt: Well, that -- that's true, Your Honor, but the -- the issue is not as to advocacy but as to the character of the advocacy and I think it's perfectly apparent --

Justice Potter Stewart: No, in the -- the Yates character.

Mr. John J. Abt: That's right.

Justice Potter Stewart: I mean the character required by Yates.

Mr. John J. Abt: As I -- as I read that, that's -- that's what the Government says from its reading of the opinion, Justice Stewart.

As I read the opinion, the Court never mentions the word incitement or -- or advocacy of action, anywhere in delineating the issues and discussing the evidence.

And it specifically says that Yates, in its own decisions in Silverman and Jackson are inapplicable.

Now, it seems to me the Court could -- never have viewed the case the way it did if it had thought that the incitement standard was applicable.

Well, I'm going to argue in any case here is, irrespective of the view taken by the court below that incitement obviously was approved.

Justice Felix Frankfurter: As I understand you to answer Justice Harlan that the trial court instructions did satisfy Yates' advocacy?

Mr. John J. Abt: Yes, Your Honor.

Trial court instructed on incitement.

Justice John M. Harlan: In other words, what you're arguing as I get it is that the Court of Appeals, because of what you claimed that said respecting the incitement --

Mr. John J. Abt: Correct.

Justice John M. Harlan: -- has not reviewed the evidence under Yates' standards.

Mr. John J. Abt: That's right.

Justice John M. Harlan: That's your point.

Mr. John J. Abt: That's my point of it.

But the review below is never a proper review because the (Inaudible) standard applies.

Justice Felix Frankfurter: Is there any indication that the Court of Appeals thought it was not necessary to meet the Yates' standard?

Mr. John J. Abt: I -- I think it's fixed out all over the opinion, Your Honor.

First --

Justice Felix Frankfurter: Well, I don't know -- I don't mean about what's fixed out.

It -- I'll come to that sentence.

Is there any --

Mr. John J. Abt: Court's --

Justice Felix Frankfurter: -- explicit reference?

Mr. John J. Abt: At page -- at page, Your Honor, at page 449 of the record.

The Court says that the -- that the incitement standard of Yates as well as of Jackson and the Silverman is inapplicable.

Justice Felix Frankfurter: 449?

Mr. John J. Abt: 44 -- 449, yes, sir.

Justice John M. Harlan: Could I ask you a question?

Justice Felix Frankfurter: And I understood that to mean that -- that -- what, I think what Justice Stewart have already put to you, namely that -- that Yates dealt with the advocacy of the -- the requirement of and proof of advocacy by the Party and that's -- that's what (Inaudible) said with there, and here, you're dealing with membership which merely require it is not a job, assuming that's sufficient you're probably making.

Mr. John J. Abt: I -- I don't think that's what the Court meant, You Honor.

Justice John M. Harlan: Could I ask you this question?

Mr. John J. Abt: Yes.

Justice John M. Harlan: What did the Government --

Justice Felix Frankfurter: And may -- may ask you?

If you forgive me.

The various sentence, after your sentence, the crime to which appellant was indicted brought to trial and convicted is what determined the sufficiency of the evidence and not on another similar even related crime.

Mr. John J. Abt: That's correct.

Justice Felix Frankfurter: Now, the related crime is advocacy by the Party.

Mr. John J. Abt: Yes, Justice Harlan.

Justice John M. Harlan: The question I was going to ask you, what did the Government argue in the Court of Appeals?Do they say that in reviewing the element of the crime that goes to the advocacy of the Party that Yates didn't apply?

Mr. John J. Abt: No.

The Government said they've satisfied Yates, Your Honor.

That makes the --

Justice John M. Harlan: They argued it on the Yates premise.

Mr. John J. Abt: Right.

That makes -- makes it all the more astonishing if the Court decided if they have reference.

Justice John M. Harlan: Well, it has a bearing -- it has a bearing on what the Court arguing in the Court Appeals opinion.

Mr. John J. Abt: Yes, Your Honor.

But I don't think -- I -- I can only express mine as my view.

I -- and -- and I think that after you read the Court's statement of the issues and the Court's analysis of the evidence, all of which is done without mentioning the -- the incitement standard, that you'll conclude as I conclude it at the Court and -- and couple that with the fact that said that Yates was inapplicable.

You'll conclude as I conclude it that the Court did not believe that the incitement standard had any place in the States at all.

Justice John M. Harlan: That would be in the face of an argument by the Government that was premised on the Yates being applicable.

Mr. John J. Abt: That's right, Your Honor.

Justice Felix Frankfurter: Well, then you have to argue one more thing as far as I'm concerned.

Assume you're right, assume you're right, trial court properly charged the jury, the evidence sustained the charge.

The Court of Appeals affirmed the conviction that indicate that a law standard of proof of means, that's your position.

Mr. John J. Abt: My position Your Honor, that's not my -- that's not my whole position.

Justice Felix Frankfurter: No, no, no, I'm saying, I'm -- one -- one point of your thought.

Mr. John J. Abt: Right.

Justice Felix Frankfurter: Now, you have for me to deal with this (Inaudible)

Assume you're right.

You're appealing from the judgment of the Court of Appeals.

Mr. John J. Abt: Correct.

Justice Felix Frankfurter: If the record sustain the correctness in what the trial court did and the evidence sustained that would --

Mr. John J. Abt: Then I -- then I have no point, Your Honor.

Justice Felix Frankfurter: May I finish?

Mr. John J. Abt: I'm -- I'm sorry, sir.

I -- I apologize.

Justice Felix Frankfurter: If the evidence -- if the charge was right and the evidence sustained the charge, however wrong the Court of Appeals maybe if this Court thinks the charge of the District Court was right and the evidence sustained with or within period at the Court of Appeals.

Mr. John J. Abt: Absolutely Mr. --

Justice Felix Frankfurter: Very well.

Justice Hugo L. Black: Is all the evidence in this record?

Mr. John J. Abt: Pardon?

Justice Hugo L. Black: Is all the evidence in this record?

Mr. John J. Abt: All the evidence is in the record, yes, sir.

Justice Hugo L. Black: In one single volume?

Mr. John J. Abt: In one single volume.

And I now -- I now proceed to argue that -- from the evidence, if the Court of Appeals had applied the incitement standard as -- I'm sure that this Court will.

It could not have sustained the conviction because there is no evidence in the citing of this record.

Justice John M. Harlan: Am I not correct in thinking that there's a 1200 page, printed -- typewritten transcript of which this is the -- of either a fair --which you say, a fair reflection of it.

Mr. John J. Abt: This has all of the significant of it.

That's right --

Justice John M. Harlan: Yes.

Mr. John J. Abt: -- Your Honor.

Justice John M. Harlan: There is a record.

Mr. John J. Abt: Well of course, there's a record.

I -- I did not -- didn't understand Mr. Justice Black to ask me otherwise.

And the record has some more material in it.

Well, if the Government and ourselves are satisfied and all of the significant evidence in the case has been printed in the record.

Justice Felix Frankfurter: And it was settled between the Government and yourself.

Mr. John J. Abt: Oh, yes of course.

Justice Hugo L. Black: What I was trying to find out was how much you then to read (Inaudible) the evidence.

Mr. John J. Abt: I'm sure the Government will agree -- I -- I understood that from your question at this point.

I'm sure the Government will agree with me that you don't have to go outside of the printed record.

Indeed, the printed record has been more than generous in reproducing this file we have.

Justice Hugo L. Black: How many exhibits?

Any exhibits?

Mr. John J. Abt: Yes but --

Justice Hugo L. Black: Are they in here?

Mr. John J. Abt: All the exhibits of any significance were read to the jury and public has read to them, for the jury has been (Inaudible).

Let me say, as far as the exhibits are concerned, Your Honors, unfortunately are more than familiar with all the exhibits because they consist of same books that were happens in the Yates.

My principle brief made a point-by-point comparison of the evidence concerning the advocacy of the Communist Party in this case and in Yates.

And this can now very readily be done by the Court from the appendices to the Government's brief in this case and in the Yates case in which the evidence concerning Party advocacy is summarized.

In both cases, the principle evidence on this issue was introduced through the prosecution's ubiquitous witness Lautner, who has given substantially the same testimony in every Smith Act case since Dennis.

The evidence consisted of the following.

First, the facts concerning the reconstitution of the Communist Party in 1945 and of three-dedication to the principles of Marxism and Leninism.

Second, the so-called practical writings of Marx, Engels, Lenin, and Stalin, declarations of a Communist International published in the 1920s and books and articles of American Communist.

Third, Lopez testimony that he had read this books and articles and that some of them had been studied in Party schools after 1945.

Fourth, evidence concerning the organizational principle of democratic centralism, which requires strict adherence to Party decisions.

Fifth, evidence again primarily in the testimony of Lautner concerning the establishment of a so-called underground Party organization equipping it with mimeograph machines and printing presses and arranging hideouts for possible use by Party leaders.

And sixth, and finally, evidence that the parties press the need of recruiting members and influencing workers in the basic industries of the nation.

My principle brief challenged the Government to find out any significant differences between the evidence in this case and in Yates from the subject of Party advocacy.

The Solicitor General relegates his reply to a footnote.

He says that to compare the evidence in the two cases, and I quote, "is misleading and unrewarding."

On three -- page 39, note 12.

I can readily understand that he finds the comparison unrewarding but he doesn't tell us why it should be misleading.

He acknowledges that the pattern of the evidence in the two cases is similar but he asserts from in the same breadth that the factual pattern in this case is unique.

Certainly, there was nothing unique in Lautner's twice-told tale nor was there was anything unique in the testimony of five additional witnesses who did not appear in the Yates case.

The Government says that the significant aspect of the testimony of these five witnesses related to industrial concentration and the underground.

This evidence is summarized at pages 37 to 38 of the Government's brief on which it will readily appear that the witnesses added nothing to what Lautner have provided too on these subjects.

The Government seems to acknowledge that the evidence concerning Party instruction and Marxism and Leninism, taken by itself, shows no more than the advocacy of abstract doctrine.

It argues however, that this instruction is transmuted into incitement to action by the Party's program of industrial concentration and the establishment of an underground organization.

But to say this is not the distinguish Yates but merely to resurrect the arguments that Yates rejected.

Indeed, while the Government argues here that it has met the incitement standard, its action in other Smith Act cases relies its words.

Subsequent to this Court's decision in Yates, 12 of the 13 pending Smith Act conspiracy prosecutions were terminated in favor of the defendants.

Four of these were disposed off by directions for judgments of acquittal in the Second and Tenth Circuits.

In the remaining eight cases, the indictments were dismissed on motion of the Government with the explanation that the Yates standard could not be met.

This would seem to be an acknowledgement that the Government cannot cure the deficiency in the Yates record that the court -- that this Court pointed out.

For -- if evidence were available to prove what was not proved there, that is that the Communist Party incites violent overthrow and therefore, constitutes the conspiratorial group, it's just inconceivable that the Government would have abandoned the effort to convict at least some of the Party leaders who were named in these indictments as participants in that conspiracy.

Thus, while the Government here formally contends that Yates is distinguishable.

What it really is asking is that the Court overruled the Yates decision.

Yet, it advances and can advance, no reason for this Court to do so.

Indeed, this would be a most inappropriate case even to urge the Court to overrule Yates because the fact is that here, the evidence would be insufficient, even a proof of advocacy of abstract doctrine by the Communist Party were sufficient to satisfy the statute.

This is so, because in this case, the Government introduced no evidence that the Party advocated forcible overthrow even in the sense of advocacy of abstract doctrine within the period of the statute limitations that is in September 1, 1951 for the date of the indictments.

The only evidence of Party advocacy was the elimination --

Justice Potter Stewart: What is the (Voice Overlap) -- what is the --

Mr. John J. Abt: Pardon?

Justice Potter Stewart: -- limitation period, three years?

Mr. John J. Abt: Well, it's a little over three years, Your Honor, because the four -- the five-year statute had been passed in the interim.

Justice Potter Stewart: I didn't quite understand.

Is it three-year, two-month-period, I'm just asking on curiosity.

Mr. John J. Abt: Because of the -- the peculiar effect of the increase of the statute of limitations from three years to five years shortly before the indictment in this case was referred.

But works out there automatic, which is three years, two months and --

Justice Potter Stewart: I see.

Mr. John J. Abt: -- it's complicated to go into.

Justice Potter Stewart: I see.

Mr. John J. Abt: If I could even remember it now, I don't remember the argument but that -- but that what it is.

Justice Potter Stewart: At least you both agree as to what --

Mr. John J. Abt: We all agree that the statutes runs from September 1st of 1960.

The only evidence the Party advocacy within the limitations period was offered by the petitioner.

It consisted of writings by the Chairman of the Party, advocating the establishment of socialism by peaceful parliamentary means.

The court below ignored petitioner's evidence.

It made up for absence of any prosecution evidence on the subject by invoking an inference and I quote from the court's opinion, "That the character of the Party, as a group, dedicated to violent overthrow of the Government, established in prior years continued unaltered through the statutory period."

And the Government here, likewise, relies on the same inference.

But the issue in this case obviously, is not the general character of the Party or to what goal it was dedicated during the limitation's period.

The issue is whether within that period, the Party performs certain verbal acts, the utterance or publication of words advocating forcible overthrow.

So called, presumption of continuance applies only where the existence of some condition, quality or tendency is in question.

It does not and purely, it cannot, at any application for the performance of an act at a given time is an issue.

For example, no lawyer, in his right mind, would argue that because I had a record of five previous convictions for driving through a red light at the corner of 16th and K Streets that it would be presumed that I drove through the same light of some time after September 1, 1960.

It's just as absurd to argue that if the jury had found that the Communist Party had advocated forcible overthrow prior to September 1, 1951.

He was entitled to infer that the Party engaged in some -- in the same advocacy that sometime thereafter.

This would substitute a presumption of guilt or the constitutional presumption of innocence.

Moreover, even of such a presumption or otherwise permissible and I think plainly, it isn't.

It was rebutted by the uncontradicted evidence that petitioner's advocacy during the limitations period was peaceable.

I now turn to the evidence concerning petitioner's knowledge and intent and for that purpose, I'll assume that the prosecution proved that the Communist Party incited forceful overthrow within the limitations period.

Even on that assumption, the conviction cannot stand where there was a complete failure of proof on the issue of guilty knowledge and guilty intent.

Prosecution called nine witnesses in additional to Lautner.

Five were former Party members.

Three of them had joined the -- the Party as paid spies for the F.B.I.

The four remaining witnesses merely identified the petitioner as having lived and held a factory job in New Jersey under another name in the years 1953 to 1955.

The prosecution witnesses praised petitioner's membership and activity in the Communist -- in the Young Communist League in the Communist Party from his high school days in 1933 and 1951.

The evidence pictured him as a devoted communist who believe in the ultimate victory of socialism in this country but there's not a suggestion in the record that he so much as predicted forcible overthrow, let alone incited action that bring it about.

Indeed, the record contains only one instance in which a reference was made to forcible overthrow in petitioner's presence.

This was said to have occurred in 1935, 20 years before the return of the indictment.

When an instructor in a class conducted by the Young Communist League stated that resort to forcible overthrow wouldn't be historically necessary.

It appears at page 255 in the record.

Assuming the relevance and credibility of anything so remote, the statement was no more than a prediction about coming events and clearly fall short -- short of any incitement.

Justice William O. Douglas: Well, was that the issue, statement or --

Mr. John J. Abt: That was said to have been made by a teacher in a class attended by the petitioner.

And it's the worst thing there is against the petitioner in entire way.

The evidence for the prosecution showed that petitioner urged building the Communist Party among workers in heavy industry in the Buffalo area, that he had dealings with three witnesses about the purchase and concealment of printing presses for use in the event that the Party was denied access to commercial printing facilities.

They discussed the matter of locating homes where people could takeaway refuge if they had to go into hiding.

And that he himself moved with his family to New Jersey where from 1933 to 1935, he worked for the Goodyear Rubber Company, I think it's at Stratford under an assumed name.

None of this evidence is relevant for the issue of petitioner's knowledge and intent.

Justice Potter Stewart: Wasn't there a conversation about harboring somebody who is advocated in atomic espionage?

Mr. John J. Abt: That I included, Your Honor, among this business of arranging hideouts for people in case they've had to use them.

There were some reference -- there's something about the atom bomb harboring somebody, the man never showed up and nothing ever came to the whole conversation.

It obviously had nothing to do with that.

It might conceivably have some relevance with the conspiracy to -- in that espionage or sabotage of the Company but it's not the essence of the Court.

As I say, none of this evidence was relevant to the issue of petitioner's knowledge or intent.

There is no evidence of the so-called underground engaged or plan to engage in incitement, to violence or other unlawful activities, much less that petitioner knew of any such purpose.

All that the evidence shows is that elaborate precautions were taken to protect the Party and its members against what was regarded as political prosecution.

This measures may have been ill advised, they have been foolish.

Certainly, they furnish no evidence of illegality.

The case for the prosecution on the issues of knowledge and intent that bottom rest on no more than the following.

First, that he was familiar with the classical writings in Marxism and Leninism.

Second, that he held positions of Party leadership in western New York and third, that he made a few innocuous remarks, the strongest of which I quoted from a moment ago.

Nowak versus United States held a similar evidence including statements that I think come far closer to the boundary that separates the advocacy of belief from advocacy of action, were insufficient to prove that the petitioner in that case had knowledge that the Communist Party incites to violent overthrow.

And Schneiderman versus United States shows that similar evidence is likewise insufficient to establish the petioner to have the specific intent of bringing about violent overthrow.

The Government in its brief studiously avoids mentioning either of these cases.

Although together, what the decision in Yates as I see it, they're completely dispositive of all of the evidentiary issues in this -- in this case.

On the standards of these decisions, there was a complete failure of proof as to each of the elements of the offense charge.

The Government was undergone misapprehension as to its burden of proof under the statute and the indictment.

Accordingly, this is a case whereas the Court stated in Yates, acquittal is unequivocally demanded.

I shall pass over the next point argued in my brief that the conviction must be reversed because it was the pain on the faces of evidence and matters wholly outside the petitioner's knowledge and not otherwise connected up with him.

I argue the 4 (f) question at some length in my brief.

And I'd like to make only two observations briefly in addition to what was said here today on that question.

First, the effect of 4 (f) on the membership clause of the Smith Act was by no means inadvertent as we suggested here this morning.

On the contrary, it was very conscious and highly deliberate.

If you read the legislative history which is summarized in my brief at page 44, I think what very clearly emerges is the fact that Congress fully understood that the privilege of self-incrimination forced it to choose between the registrations provision of the Subversive Activities Control Act on the one hand and the membership clause of the Smith Act on the hand as a method of reaching members of the Communist Party whose only over deck consistent in membership, and that they deliberately chose the registration provisions of the Subversive Activities Control Act to accomplish that purpose and for that reason, immunize communist -- members of the Communist Party from prosecution under the membership clause of the Smith Act.

Something was said this morning about Counselman versus Hitchcock and I shall argue tomorrow in the Communist Party case that the registration provisions of the Subversive Activities Control Act are unconstitutional because they compel self-incrimination and that -- and in that connection, I point out that Section 4 (f) doesn't rescue these provisions because it doesn't satisfy the requirements of Counselman versus Hitchcock.

The Congress was fully aware of the holding in Counselman versus Hitchcock and its -- the text of Section 4 (f) was prepared with the decision in that case and mine at least that Congress had the -- had the -- the text that had decision before them because the doctrine of Counselman versus Hitchcock was called to the attention of the Senate in the minority report of the Senate which commented on -- on the fact that Section 4 (f) was drafted by the Senate, didn't satisfy that doctrine.

And it was called in the attention of the House by Congressman Sullivan at the time that the 4 (f) was amended to improve immunization against the prosecution for other criminal statutes.

And I believe also, my recollection is that the doctrine of Counselman versus Hitchcock was also adverted through -- in a letter by then Attorney General, now Mr. Justice Clark, to Congressman Celler who was then the Chairman of the House Judiciary Committee, so that Congress legislated the 4 (f) with Counselman versus Hitchcock in mind.

Now, as I say, I'll argue tomorrow that plainly, 4 (f) doesn't satisfy the Counselman versus Hitchcock doctrine.

And if that argument is sound and I don't understand the Government to contend otherwise, then Section 4 (f) failed to accomplish its ultimate legislative purpose.

That is to insulate the registration provisions from attack on self-incrimination grounds.

But that fact does not militate against giving effect to the limited immunity of Section 4 (f) before us.

As Mr. Taylor pointed out this morning, the Court was confronted with precisely this situation and United States versus Bryan or Bryan versus United States and Adams versus Maryland.

Both of those cases involve Section 3486 of the Criminal Code which provides that no testimony by a witness before a congressional committee shall be used as evidence in a criminal proceeding.

That statute was originally inactive for the purpose of providing an immunity which would permit the compulsion of incriminating testimony before and -- from witnesses before congressional committees.

Purpose was nullified by the Court's decision in Counselman versus Hitchcock holding that the immunity conferred by this Section wasn't coextensive with a privilege.

Nevertheless, the Court is held in both the Bryan and Adams cases that effect must be given to the limited immunity which Section 3486 reports.

And so in the present case, I submit that there would be no inconsistency in holding on the one hand that Section 4 (f) bars the prosecution of communist under the membership clause but at the same time, deciding in the Communist Party case that the immunity conferred by 4 (f) is not broad enough to foreclose a claim of the privilege as a defense to registration under the Subversive Activities Control Act.

Turning now to the constitutional issues, I want first to discuss the questions posed in the Court's order for re-argument with respect to the clear and present danger doctrine.

As I -- as I understood Mr. Davis this afternoon, he conceded that the membership clause must satisfy that doctrine.

If we state my conclusion at the outset, it's my view that the term present danger clause is applicable and is violated by the membership clause both as a clause as written and as the Government proposes to embellish it with an attempt and activity and if this is so, whether the doctrine has given the Holmes, Brandeis interpretation or whether it's given the Hand and Vinson interpretation.

I suggest that it's important at the outset to state with some precision to make sure of the conduct which the membership clause proscribes.

It doesn't punish and accuse for its own advocacy.

Both has written and is now embellished by the Government.

It punishes him because of the advocacy of other members of the group for which he belongs.

Accordingly, it is not advocacy but association that the membership clause makes permanent.

As NAACP versus Alabama holds, freedom of association with a group engaged in advocacy is a form of the freedom of assembly and is -- is within the protection of the First Amendment.

Since the membership clause punishes association with such a group, that is to say with a group engaged in advocacy, the clear and present danger doctrine is applicable to the clause just as it is to any other restraint from the exercise for First Amendment right.

Question then is, how shall the clause -- how shall the doctrine be applied to the membership clause?

However, the doctrine is interpreted.

It focuses on the consequences of the conduct which is the object of the restraint in question.

It measures the validity of the restraint by the nature of the danger of any, which may be anticipated from the conduct sought to be restrained.

The conduct which the membership clause would restrain by punishing it in the present case is Noto's membership in the Communist Party.

The issue under the clear and present dangen -- danger doctrine therefore is not as to the danger from the advocacy of the Communist Party.

That danger would be relevant only under a statute punishing advocacy.

The issue here is as to the danger from Noto's membership in the organization.

In that connection, although De Jonge versus Oregon was not decided in terms to clear and present danger, I submit that it's decisive of the question.

Statute in De Jonge punished association with an organization engaged in seditious advocacy by making it a crime to assist in the conduct of a meeting of the organization.

As construed by the state court, the statute makes such assistance, criminal, notwithstanding that the meeting was lawful and peaceable.

The Court invalidated the statute has so construed to tell that participation in a lawful, peaceful meeting may not be punished regardless of the fact that the sponsor of the meeting is engaged in a legal advocacy which can be function.

Justice Felix Frankfurter: But that was not part of the statute.

That was not part of the proscribed offense.

That was not charged in the indictmen.

Mr. John J. Abt: Yes, Your Honor.

That's perfectly correct.

The clerk in the onset and I quote, "These, referring to First Amendment rights may be abused by using speech or press or assembly in order to incite the violence or crime," but immediately thereafter, Mr. Justice -- the Chief Justice Hughes added."

A legislative intervention can find constitutional justification only by dealing with the abused.

The rights themselves must not be curtailed.

Thus, the constitutional question which De Jonge presented was not whether the advocacy of the Communist Party was an abuse.

That is whether it created a danger to the Government.

The only relevant question was whether the Act which statute punishment, association with the Party in the conduct of its meeting was an abuse.

That is to say was self-dangerous.

And so here under the membership clause, the issue was not as to the danger from the advocacy of the Communist Party.

Well, that danger is taken care of by punishing such advocacy under other provisions of the Smith Act.

The issue here is whether the membership of the accused in the organization is itself creative of the danger.

Since this is the issue, the membership clause is plainly unconstitutional on its basis.

Whereas the Government itself concedes, the membership of a single individual cannot, under any conceivable circumstances, create a clear and present danger of the evil to which the Smith Act would address and attempt at the violent overthrow of the Government.

The Government contends in its brief, brief in Noto on re-argument -- in the Scales rather on reargument that it is not the membership of the accused individual alone but the aggregate effect of the membership of all persons in the group, it must be looked to in determining whether a clear and present danger exists.

De Jonge disposes of this contention also.

The accused in that case, De Jonge, gave assistance and support to the Communist Party by assisting in the conduct of its meetings.

But great many other people did likewise, the total effect of their actions would be materially to enhance the influence and prestige of the Party.

But the Court did not test the validity of the statute by measuring the aggregate contribution to the Party's unlawful objective which might be made by all the persons who did or would assist in the conduct of its meeting.

Instead, the Court asked too much more simple questions.

It asked whether performance by De Jonge himself of the Act which the statute punished, was an abuse of his First Amendment rights.

That is to say whether it his assistance, the conduct of a lawful meeting endangered organized Government.

Same inquiry must be made here, does the only act which the statute makes an offence in which the indictment charges, the accused membership in the organization.

Does that create a danger to organize Government?

The answer here must be the same as the answer of De Jonge.

The answer is fatal, I submit to the statute.

In arguing the constitutional question, the Government also contends in its brief that the membership clause is essentially a conspiracy statute similar to the one upheld in the Dennis case.

But in arguing the sufficiency of the evidence in this case, the Government says that in a membership case, it is not necessary to prove and I quote "that the defendant personally conspired to engage in a forbidden advocacy".

It is indeed a strange kind of conspiracy statute that authorizes a conviction for conspiracy without proof that the accused conspired.

Certainly, the statute, as written, requires no such proof or it authorizes a conviction notwithstanding that the accused disagrees with the advocacy of forcible overthrow, does not intend by his membership to bring about forcible overthrow and engages in no membership activity of any kind.

The additional agree -- ingredients of intent and activity which as Mr. Davis argued so forcibly this morning in the constitutionally protected activity which the Government proposes to supply in this case, too little to improve the resemblance of the statutes of conspiracy law.

Justice Felix Frankfurter: Do you mention -- do you (Inaudible) Mr. Abt.

Mr. John J. Abt: Yes, sir.

Justice Felix Frankfurter: You might disagree with the -- the purpose of the Party himself has nothing further, it wasn't (Inaudible)

Mr. John J. Abt: It does not content by his membership to bring about the violent overthrow.

I've analyzed these ingredients of intent and activity in my brief, the reply brief, and have shown that they can't possibly substitute for what is the gist of the offensive conspiracy and his participation in an agreement to violate the law.

But even assuming that evidence of the accused intent and activity, as the Government defines and now today as we define them, the probative of his participation in an illegal agreement, the membership clause could still not be sustained as a conspiracy law.

Or in every conspiracy case, the issues as to the existence of a conspiracy and the membership of the accused in it are and must be submitted to the jury, and this is so no matter how compelling the evidence in the particular case may be.

In a prosecution under the membership clause, however, no such questions are given to the jury, even as the Government rewrites statute.

The jury gets no more than the questions of knowledge, intent and activity and membership.

Thus, the Government's argument must come down to the proposition that jury finding is against an accused on these four matters, membership, knowledge, intent and activity, raises a conclusive presumption that he was a Party to an agreement to advocate proscribed doctrine.

But as Holt versus United States and a long line of cases holds, the Congress may not legislate such presumptions.

Certainly therefore, the Court may not supply such presumptions by judicial construction of statutes.

The fact is that the Government is trying to do two things in this case.

On the one hand, it hopes to sustain the constitutionality of the membership clause on conspiracy for instance.

On the other hand, it wants to avoid the embarrassing necessity of proving a conspiracy in prosecutions under the Smith Act.

These two objectives, unfortunately for the Government, are obviously irreconcilable.

Laborious effort to reconcile them, simply emphasizes the fact that the membership clause is unconstitutional because it violates the clear and present danger doctrine and then imputes guilt solely from innocent association.

To conclude, I believe that Dennis versus United States was wrongly decided and I share the hope expressed by Mr. Justice Black in the dissenting opinion in that case.

But whatever else Dennis may stand for, it does not and cannot support the constitutionality of the membership clause.

For all of the majority opinions in that case, emphasize that it was the presence of an active conspiracy that created the danger and Chief Justice Vinson stressed that it was the nature of the defendant's activities and their power to bring about the evil that brought them outside the protection of the First Amendment.

Under the membership clause in contrast, an accused may be convicted without proof that he conspired, and although he has engaged in nothing but peaceable activity and is absolutely powerless to bring about the evil.

For these reasons, I submit, membership clause is sufficiently in conflict with the First Amendment.

Thank you.

Chief Justice Earl Warren: Mr. Davis -- oh Mr. -- Mr. -- Mr. Maroney.

Argument of Kevin T. Maroney

Mr. Kevin T. Maroney: Mr. Chief Justice and may it please the Court.

I intend first to outline the Government's evidence in the case and to argue the question of sufficiency and miscibility of the evidence.

And Mr. Davis will then conclude the Government's argument on the constitutional and other related questions.

First, to take up one of the early questions which grows -- during Mr. Abt's presentation, the question of the -- what the petitioner alleges to be the failure of the Court of Appeals to apply the test of the Yates case.

In -- in that connection, our brief and the Court of Appeals in the conclusion of the brief, page 62, the first sentence is, "It has concluded that there was sufficient evidence to warrant the jury's verdict of guilty in this case within the meaning of Yates."

And of course, running through the brief and many other instances in -- in argument by the Government in the Court of Appeals that the evidence here, as far as the Communist Party, the Party's advocacy was concerned yet in fact meets the Yates requirements.

Chief Justice Earl Warren: Did the Court address itself to that question?

Mr. Kevin T. Maroney: No, not specifically, Your Honor.

On the other hand, we think it's perfectly clear that the Court of Appeals, when it stated at page 449 which was read earlier, 449 of the record, that the incitement action test, enunciated in Yates has been applicable.

Stately referred to the -- the member's own action because on the very next page of the opinion, the second -- third last sentence of the opinion, the Court said, "Since the defendant was not indicted for activities, the end result of which, which culminate in action on the part of others, it was not necessary that the evidence of his activity meet the Yates steps."

Well, we think that's what the Court referred to.

It referred to the activities of this particular defendant in -- in the non-applicability of Yates criteria.

Now, petitioner further suggests that we prove in this case nothing more than we proved in the Yates case on the question of the Party's advocacy.

And he further argues that this Court in Yates held that the evidence there was strikingly insufficient to prove that.

We think he makes -- he -- he makes too much of the Court's comment that the evidence there was strikingly insufficient because this Court, as we read the opinion in the Yates case, specifically held that it was not ruling on the question of whether or not a jury under proper instructions could have found that the Party teaches and advocates in the sense of a call-to-action.

And I think on the contrary, the Court indicates that under proper instructions, the Court could, at least insofar as where the jury could have, insofar as some of the defendants were concerned, possibly have found that the incitement was in the nature of a call-to-action.

Justice Potter Stewart: Oh, isn't it true that the -- that the Yates decision, and as you know it's purely (Inaudible) but isn't it true that -- that that case does decide that the evidence, as to the Communist Party -- to all Communist Party, to be sure, that case in the Communist Party in California rather than Communist Party (Inaudible) because the Communist Party, its activities as a Party, did not rise to the required incitements of action.

And that the only basis on which certain of those petitioners were sent -- sent to the -- a new trial might be justified, was specific evidence relating to them and not evidence having the community activities of the Party.

Mr. Kevin T. Maroney: Well, the Court did say in -- in one part of the opinion that the evidence as to the nature of the advocacy of the Communist Party was strikingly deficient on the questions, not whether the advocacy of overthrow was an element or were intent of the Party which the Court held in one, but that -- it was strikingly deficient on the question of whether the advocacy was in the sense of a call-to-action rather than the advocacy of an add effect ideas.

I -- I think the Court, however, indicated in discussing some of the evidence later on with respects to the evidence related to particular petitioners there concerning whom it will order a new trial rather than acquitting.

That some of the evidence there coupled with the Party's teaching an advocacy of Marxism and Leninism, might have been sufficient without deciding the question, it might have been sufficient or a jury under proper instructions to conclude that the -- the advocacy of action of the Party was a call-to-action and not just an advocacy of overthrow as an abstract theory.

In other words, I think the Court there was doing what the Court did -- what this Court did in the Schneiderman case.

The old Schneiderman case, 320 U.S. 118 indicated that it would not say that a reasonable man could not reasonably find on the basis of the Government's evidence in the Schneiderman case that the Party thought and advocated the violent overthrow of the Government.

Chief Justice Earl Warren: Is it true that -- that none of these Yates defendants were ever retried because of the stated premise or the department that you could not reach the Yates statute?

Mr. Kevin T. Maroney: Well, I think that the -- I don't recall the exact wording of the motion to dismiss.

Chief Justice Earl Warren: I thought I read in the --

Mr. Kevin T. Maroney: I think.

Chief Justice Earl Warren: -- press --

Mr. Kevin T. Maroney: -- that you must dismiss because of the --

Chief Justice Earl Warren: Because of the (Voice Overlap) --

Mr. Kevin T. Maroney: -- these fixed standards --

Chief Justice Earl Warren: -- (Voice Overlap) but you couldn't meet the -- the Yates standard.

Mr. Kevin T. Maroney: That, I think coupled with the fact, however, Your Honor, of the unavailability of some witnesses who had testified on at the earlier files.

So that -- in any event in this case, we think that the -- the evidence that we have that was offered in this trial does meet the standards of the Yates case and it does demonstrate that the Communist Parties teaching an advocacy of overthrow is in the sense of a call-to-action.

Chief Justice Earl Warren: In what sense is it -- in what sense is it stronger than the Yates case?

Mr. Kevin T. Maroney: Well, to begin with in this case, the -- the witness Lautner, who has been a member of the Communist Party from 1929 to January 1950, testified here generally as to his experiences in activities in the Communist Party.

His knowledge of the Party's systematic educational program, his participation in that program going that entire 20-year period.

He testified (Inaudible) to his attendance that state conventions, national conventions throughout that period, testified as to his attendance at the national training school of the Party which is the highest training school for the Party, which incidentally, the evidence also shows the petitioner Noto, also, attended in the year 1947.

Now, Lautner also identified the books, the so-called classics, Marxism and Leninism which are used as part and parcel of the Party's systematic educational program for indoctrinating its members.

He -- he introduced the books which were also used in the -- in the Schneiderman case, foundations of Leninism, state revolution, problems with Leninism and so forth.

Now, Lautner also testified as to the reconstitution of the Party in 1945 and the fact that the Party in 1945 was returning to the basic principles of Marxism and Leninism, was returning to the -- to the class warfare that has been abandoned by Earl Browder, during the Communist Political Association period in 1944 to 1945.

Lautner testified that Marxism and Leninism as taught in the school is not a dogma but is a guide through action.

They thought that that he was taught in the national training schools that Marxism, Leninism and theories apply to the United States and that the Communist Party rejected specifically the theory of American exceptionalism which was a --

Justice Felix Frankfurter: American what?

Mr. Kevin T. Maroney: American exceptionalism.

Justice Felix Frankfurter: Oh, yes.

Mr. Kevin T. Maroney: That was a doctrine --

Justice Felix Frankfurter: Alright, thank you.

Mr. Kevin T. Maroney: That was a doctrine that socialism could come peacefully for the United States.

This was considered in Party classes and the -- and the Party members were taught that American exceptionalism was a (Inaudible) theory.

Justice Felix Frankfurter: Exceptionalism -- exceptionalism deviation of its (Inaudible)

Mr. Kevin T. Maroney: No, sir.

I don't -- I think --

Justice Felix Frankfurter: Deviation and (Inaudible) except to (Inaudible) ad hoc frequency.

Mr. Kevin T. Maroney: I think so.

Yes, sir.

Justice Potter Stewart: Well, it means doesn't it Mr. Maroney, America, unlike every other country in the world -- in America unlike in every other places in the world, the communism might be a shape peaceably than a bloodshed?

Mr. Kevin T. Maroney: That's right.

Justice Potter Stewart: And that was -- and that was a rejected doctrine.

Mr. Kevin T. Maroney: That's right.

Justice Felix Frankfurter: (Inaudible) exceptionalism to Marxism theory about where revolution comes, doesn't it?

Mr. Kevin T. Maroney: Lautner also testified as an expert, as a person with wide experience in the Party who is in a position to testify as to the -- as to the attendance of the -- objectives of the Party.s

And based upon his experience, he testified that the Communist Party advocated the overthrow of the Government by force and violence and teaches that it cannot come about, especially in a highly developed country like the United States without force, challenge and violence.

Further, he testified that the aim of the Party was to destroy capitalism when certain objective and subjective conditions were present.

Now, --

Justice Hugo L. Black: Did he indicate when they might come across?

Mr. Kevin T. Maroney: The -- the object of conditions would be a time of emergency, in a time of a war or a depression, when the -- when the Government was not in the best position to govern.

And the subject of condition would be when the Communist Party is sufficiently strong so that it would represent and collaborative the vanguard of the working place.

Now --

Chief Justice Earl Warren: Have you completed the recitation of his testimony?

Mr. Kevin T. Maroney: As far as Lautner is concerned, yes, sir.

Chief Justice Earl Warren: Did he testify in the Yates trial?

Mr. Kevin T. Maroney: He did -- he did, yes, sir.

Chief Justice Earl Warren: Where in is his testimony different than the Yates trial?

Mr. Kevin T. Maroney: Well then, (Voice Overlap) --

Chief Justice Earl Warren: In such a manner that he's making -- in such a manner that he makes this stronger.

Mr. Kevin T. Maroney: Well, that testimony parallels the testimony that Lautner gave in the Yates testimony.

And I think where --

Chief Justice Earl Warren: Well, but didn't he --

Mr. Kevin T. Maroney: -- where this case goes further than the Yates case is in connection with Lautner's testimony as to the operations of the underground operators of the Party.

The petitioners involvement in setting up the underground operators and the -- the Communist Party's and these petitioner's activities in the -- in -- what is called the concentration program.

The evidence here, for example, shows that the -- that the Communist Party regards certain key basic industries as -- as vital to the -- to the nation's economy, industries such as steel, mining, transportation.

Having in view, placing the Party in a stronger position where it would be able to upset old bank, the economy of the country or the ability of the country to operate successfully.

The Party endeavors to put key people in those key industries in key places in those industries so that they would be in a position to slow down production or to completely stop production when the Party leaders thought the time was right.

Chief Justice Earl Warren: That wasn't in the Yates case at all?

Mr. Kevin T. Maroney: Well, there was some discussion there of concentration but of course the important difference between the Court's conclusion in the Yates case, what we think should be the conclusion here is the fact that the evidence of that nature was not presented to the jury for decision under improper instructions as to incitement to action.

Chief Justice Earl Warren: What specific acts of incitement would Lautner testify to, so far as this defendant is concerned?

Mr. Kevin T. Maroney: Well, no specific action of incitement as to -- no -- no specific statements of incitement.

Lautner did testify.

Chief Justice Earl Warren: As to anything he did -- as to anything he did.

Mr. Kevin T. Maroney: Well, he -- he can testified that Noto helped him in the Party, set up an elaborate underground operators in --

Chief Justice Earl Warren: When was that done?

Mr. Kevin T. Maroney: That was begun in 1948, continued in 1949 and 1950 in the -- in the entire State of New York.

Chief Justice Earl Warren: Was that in the statutory -- statute of limitations?

Mr. Kevin T. Maroney: Well, it extended it to the period of the statute of limitations.

Noto himself went underground in about October of 1951 which is about two months within the statute of limitations and remained in the underground under -- under circumstances which would warrant the inference that he went there under orders and directives of the Party.

Chief Justice Earl Warren: Is going -- going what you call underground incitement?

Mr. Kevin T. Maroney: No, but I think that the -- the underground activities --

Chief Justice Earl Warren: Is it evidence of incitement?

Mr. Kevin T. Maroney: I think -- I think, Your Honor that the -- the evidence of the underground activities coupled with the Party's tenant of overthrow the Government by force and violence, permits the -- the jury to draw the inference that the -- the advocacy of overthrow is not abstract but that it is in the sense of a call-to-action.

The purpose of the underground is to maintain the Communist Party in a condition despite anything that happens, despite prosecution of its members or anything that might happen to impair the Communist Party's functioning, place the Party in a position where it can continue to function legally or illegal, and it can -- can continue to give guidance.

Now, that coupled with the Party's activity in the -- in the concentration field.

I mean, in -- in this case for example, he has specific indication that the petitioner Noto, receiving directions from the -- from Party headquarters center, a member of the organization down to New York to attend the concentration of communists.

There, it was decided that the Party would attempt to infiltrate the United Automobile Workers.

Chief Justice Earl Warren: Infiltrate to do what?

Mr. Kevin T. Maroney: Infiltrate the union with Party members so that they would be in a position in the shops, particularly in this instance, the key shop that they had designated of the Chevrolet, Delavan or the Delavan General Motors Chevrolet plant in the Buffalo area.

Chief Justice Earl Warren: Well, were they -- they're supposed to carry on any activities of incitement?

Mr. Kevin T. Maroney: Well, I think the purpose of their being there is to put them -- get them in to a position.

Chief Justice Earl Warren: But do you think -- I'm -- I'm not asking you what you think.

I'm asking what the record shows, that's what we're talking about.

Mr. Kevin T. Maroney: Well, the record shows -- I think that that an inference reasonably, could be drawn that their -- the purpose of their being sent into these key industries is to have them in a position when these objective and subjective conditions might arise in the future where the Communist Party could -- could avail themselves of these people on these key positions and disrupt the economy or interfere with anywhere efforts (Voice Overlap) --

Chief Justice Earl Warren: Where is the evidence in the records from which -- which the (Inaudible)

Mr. Kevin T. Maroney: Well, for example, on -- in Exhibit 86 is a flier.

Chief Justice Earl Warren: Is what?

Mr. Kevin T. Maroney: Is a flier, a leaflet.

Chief Justice Earl Warren: Well, leaflets, yes.

Mr. Kevin T. Maroney: That was disseminated at a Communist Party meeting.

Chief Justice Earl Warren: When?

Mr. Kevin T. Maroney: In 1948 by the local director of steel concentration in the Buffalo area which was at that time under the supervision of the petitioner.

The pamphlet describes the three basic industries a steel, railroad and miner and then it goes on to say this, and this is quoted at the record page 3523."

These are basic to the national economy, these basic industries.

That is, if anyone or are all free, are shutdown by a strike, our economy is paralyzed.

It is necessary for Marxism, revolutionary party to be rooted in these industries." Now --

Chief Justice Earl Warren: Who -- who put that out, the Party?

Mr. Kevin T. Maroney: This -- this was distributed at a Communist Party in the union (Voice Overlap) --

Chief Justice Earl Warren: But that you didn't have to -- did the -- did the parties put that out?

That's what I said.

Mr. Kevin T. Maroney: Well, I don't know that it indicates --

Chief Justice Earl Warren: Well, it might make a difference, might (Inaudible)

Mr. Kevin T. Maroney: Well --

Chief Justice Earl Warren: -- just an individual of the Party or whether it's the Party itself that does it?

Mr. Kevin T. Maroney: Well, this was distributed, Your Honor, by the local director of steel concentration Party.

Chief Justice Earl Warren: I -- I'm not -- I didn't say it didn't do it.

I just asked you whether it was done by the Party or whether it was done by some -- some individual.

We have people --

Mr. Kevin T. Maroney: Oh, no, it's --

Chief Justice Earl Warren: -- writing on communism and writing on all kinds of political theory and certainly --

Mr. Kevin T. Maroney: (Voice Overlap)

Chief Justice Earl Warren: -- everyone who's gone through a Party is not responsible for whatever a member in the Party might -- might say.

And I merely asked you who -- who put that out?

I don't know.

Mr. Kevin T. Maroney: No, Your Honor, this -- this is part of what the evidence shows to be a -- a concentration program of the Communist Party which was participated in and in part supervised by the petitioner in this case, and this particular area of concentration relating to key industries in the Buffalo area, in the up State New York area where the subjects for discussion at Communist Party importers in New York City and in -- in Buffalo.

Chief Justice Earl Warren: Was he at the meeting where this -- this was distributed?

Mr. Kevin T. Maroney: No, he was not at that particular meeting.

What --

Chief Justice Earl Warren: Then wouldn't it become important to know who -- who did that --

Mr. Kevin T. Maroney: I --

Chief Justice Earl Warren: -- if he wasn't there?

Mr. Kevin T. Maroney: Well, as I say, Your Honor, it was distributed by the local director of steel concentration, a man by a name of Dave Pascual, who was a Communist Party official operating under the supervision of the petitioner Noto, who at that time was the chairman of --

Chief Justice Earl Warren: 48.

Mr. Kevin T. Maroney: -- of the -- yes, sir.

Now, also in the year 1948, that the -- the petitioner himself announced they plan for recruiting 135 new Party members and he specified that there would be 40 from steel, 30 from electrical, 6 from brass and 3 from railroad.

And that was on a -- a basis of a -- of a -- little leaflet that he -- that was distributed at that meeting and that he discussed the -- the material on the leaflet.

Now, in --

Chief Justice Earl Warren: May I ask -- may ask if there's any particular act of incitement, established on the part of the petitioner within the three years and two months of the -- from the statute?

Mr. Kevin T. Maroney: Not that he himself uttered any phrases to incitement through action.

Well, of course, it is our theory in -- and it would be Court of Appeals' theory that it is not necessary for us to show, to prove a membership case, that the particular member himself personally taught and advocated the violent overthrow.

What is necessary is that the Party, during the period in question, taught and advocated the violent overthrow of the Government.

Chief Justice Earl Warren: What --

Mr. Kevin T. Maroney: Doing --

Chief Justice Earl Warren: What I -- what I was thinking, you -- you go back a long ways to show incitement, as I understood from the argument of counsel, you go back to 1935 to simply what was said about -- revolution is historically necessary or essential.

Now, if you're tying that to the defendant, won't you have to try something to him within the statute of limitations?

If --

Mr. Kevin T. Maroney: I --

Chief Justice Earl Warren: -- if you're going to -- if you're going to show that he is -- he's guilty of a -- an incitement that will send him to the penitentiary?

Mr. Kevin T. Maroney: Well, we -- we show of course that during the statutory period, the Party continued to be an organization such as it had been for the preceding 20 years, an organization that teaches and advocates the overthrow of the Government by force and violence.

We show that he continued to be a member of the Communist Party to be one of its leading officers and we showed that he had the knowledge that the Communist Party was an organization of the kind alleged in the indictment, and that he had the necessary specific intent.

Now, I don't think we have to show that he, at any time, personally taught or advocated the overthrow of the Government in the language of incitement.

Chief Justice Earl Warren: And do you -- is it a fair statement then that there is no active incitement on his part within the statute of limitations?

Mr. Kevin T. Maroney: There is no utterance --

Chief Justice Earl Warren: Or conduct, action.

Mr. Kevin T. Maroney: Well, I think that the -- Your Honor, in the light of the -- the evidence that went before, that the -- the petitioners going into the underground personally and under circumstances which make it obvious that he went there on directions of the Communist Party and after he had indicated to some of his fellow Party members that he would do whatever the Party told him to do to bring socialism in this country, to -- to bring this country to the -- to that glorious end of socialism, that he would even be willing to lay down his life to -- to have that come about.

And then he went into the underground.

He disguised his appearance.

He ended up in New Jersey for about a two-year of period.

He -- he lived there and worked there in a key facility in New Jersey incidentally, the Good Year rubber plant and living there under a fictitious name.

I -- I think that that activity on his part, in the light of the evidence that went before.

That is the -- the explanation of what Marxism and Leninism teaches.

What the Party teaches and what the Party was doing to implement the teachings of Marxism, Leninism to put itself with the position whereby when the time came, if it came, it would be in a position to -- to assist, and as -- as they put it, turn an imperialist war into a civil war or to cripple the Unites States in its defense evidence.

I think that from this literature and from that kind of evidence, the jury was completely warrant in concluding that during the period of the indictment, the -- the petitioner was a member and that the -- the Party was an organization which advocated violence in this sense of a call-to-action as required by the Yates case.

Now, there were some mentioned --

Justice Hugo L. Black: Was there anything in the evidence to show when they expected (Inaudible)

Mr. Kevin T. Maroney: No, not -- not in -- in that sense, there is in the evidence.

Justice Hugo L. Black: Have you read the facts concerned in the (Inaudible)

Mr. Kevin T. Maroney: Yes, sir.

Justice Hugo L. Black: Do you think they have any bearing on this case?

Mr. Kevin T. Maroney: Well, I think that in this case, as far as Paramount is concerned, he governed by the Dennis case and the Yates case because clearly here, the Party is trying to put itself in the position so that as soon as possible, it will make an effort to bring about the overthrow.

Justice Hugo L. Black: I mean as soon as reasonably possible I suppose under the law.

Mr. Kevin T. Maroney: That's right.

Well, as soon as -- as soon as possible in the sense that this -- this object of conditions might occur, for example, a war.

If there were to be a war next year or five years from now, Party was in a position where it had infiltrated these key basic industries and if the leaders of the Party thought the time was right, then that would be the occasion.

Here, for example, there's -- there --

Justice Hugo L. Black: Is that something like the saying that the indirection order if it is that it would happen at anytime within reach?

He might reasonably expected influence to continue to direct the operators, imposing such action by those whom you thought could be used?

Something like that?

Mr. Kevin T. Maroney: It would -- it would be -- this -- this action would not be brought about until such time as the circumstances made it appear to the leaders of the Party that they had a chance of success.

Justice Hugo L. Black: I've just read to you the cause of the statement of the court judge, the jury member such as Lautner, (Inaudible) could not support (Inaudible) his right to solicit membership to the Communist Party or they talked about strikes and boycotts and so forth in which the threats were at least each was (Inaudible) field that you have mentioned the other day.

Mr. Kevin T. Maroney: Well, I -- I think Your Honor in light of the considerations mentioned by Judge Hand in the -- in the Court of Appeals decision in the Dennis case.

The -- the world tensions, the international situation, the idealogical attunement of the Communist Party at least to Soviet Union, that those facts, all of which of course go to the question of clear and present danger but they are the factors which make these cases different, which permit a prosecution because of the clear and present danger.

Justice Potter Stewart: In this record, Mr. Maroney, as to the size of the Communist Party during the period or during the three-year period and all?

Mr. Kevin T. Maroney: Well, not specifically during the three-year period, Your Honor.

I'm not -- not -- specifically, if the 1951.

But in 1948, when Lautner was directed to set up the underground, he testified that at time, there were about 30,000 Communist Party members in New York State alone.

And that it was his job as part of the underground setup to integrate about 10% of that 30,000 people into the underground operators so that in 1948, there were at least 30,000 just in New York State, according to Lautner's testimony.

I -- I will give you figures as far as the -- the testimony of the director of the F.B.I. committee hearings during the period of 1950 to 1955.

In 1950, for example, he testified that the Communist Party membership in the United State was approximately 53,000.

1951, it's 43,000, 1952, 31,000, 1953, 24,000 and in 1955, there -- there was not -- I don't think they've given from 1954 to 1955, there were 22,000 members of the Party.

So that in the period of 1950 to 1955, the membership ranged down with 53,000 to 22,000.

Justice Felix Frankfurter: I don't know what that would mean (Inaudible)

Mr. Kevin T. Maroney: No, sir.

Now, I think there is another portion of evidence that was referred to earlier during Mr. Abt's presentation and that related to the harboring.

In 1951, spring of 1951, the petitioner talked to the witness Chatley, who was at that time also a member of the Communist Party and he told Chatley that he had an assignment.

The Communist Party which would require Chatley's assistance and that it would probably be the most important thing that Chatley would ever do in his life.

He said that there was a -- "One of our top officials," he said, "was on the land in connection with the Atom Spy business", and that it was necessary for him to get out of the country, and that he had been asked to designate someone's home where he could be hidden out for three or four days while he continues his route western.

Now, within the next couple of weeks, Noto gave to Chatley the instructions concerning the necessity for Chatley to stay at home from midnight until early in the morning or daylight and that a person would come and identify himself by a pseudonym.

He would make a phone call and would then leave, come back with the person who is being harbored and the person would stay there for three or four days at which time, he would leave and then continue on his way.

Now, this expected harboring never came on but in conjunction with the Party's underground activities --

Justice Hugo L. Black: Well, this has been done with the harboring?

Mr. Kevin T. Maroney: Sir?

Justice Hugo L. Black: I didn't quite understand you.

Mr. Kevin T. Maroney: I say the --

Justice Hugo L. Black: What had the man, I didn't quite understand you.

Mr. Kevin T. Maroney: Oh, when Noto first explained to Chatley when he asked him if he would put this man up.

He explained to him that this person, one of our top officials, one of our top people, was on the land in connection with the -- what the newspapers have called the Atom Spy business.

Justice Hugo L. Black: On the land.

Mr. Kevin T. Maroney: And that --

Justice Hugo L. Black: On the --

Mr. Kevin T. Maroney: On the --

Justice Hugo L. Black: -- land?

Mr. Kevin T. Maroney: On land from the police.

He was fleeing --

Justice Hugo L. Black: Oh, yes.

Mr. Kevin T. Maroney: -- from the police and it was necessary that he get out of the country.

Now, for one -- for what reason we don't know but this anticipated harboring for which Noto laying Chatley's home up.

Justice Hugo L. Black: Who was the man?

Did they ever get him?

Mr. Kevin T. Maroney: No, we -- that's -- there's no indication of that in the record.

Justice John M. Harlan: Well, is that the Rosenberg case or what?

Mr. Kevin T. Maroney: I -- I don't --

Justice John M. Harlan: In the later testimony in the record, that the first, the Rosenberg, I thought it had been the Rosenberg.

Mr. Kevin T. Maroney: Rosenberg case was --

Justice John M. Harlan: Episode (Voice Overlap) --

Mr. Kevin T. Maroney: -- first brought in 1950.

Justice John M. Harlan: (Voice Overlap) the -- his character is unidentical.

Mr. Kevin T. Maroney: That's correct, sir.

Now, on the -- the entire record, we think that -- that the -- the evidence here satisfies what the Court, in discussing the sufficiency of the evidence in the Yates case said was the type of thing where the jury, given proper instructions such as we're given here, might reasonably conclude that the -- that the teachings were not abstract but were in the -- in the nature of an incitement through action in the future.

The -- they're -- they're being proper instructions.

The Court having charged the jury that they must find that the advocacy must be of such a nature as to incitement.

The standard of review then, only is whether or not a -- a -- the jury could've reasonably have so found, not whether the Court would so find or would agree necessary with the jury, but whether or not the jury's determination could be said on the evidence to be unreasonable, if it is reasonable and then of course, it would have to stand.

Chief Justice Earl Warren: We'll recess now.

Mr. Davis is --

Print this transcript Transcript: 

Argument of John F. Davis

Chief Justice Earl Warren: Francis Noto, Petitioner, versus the United States.

Mr. Davis.

Mr. John F. Davis: Mr. Chief Justice, if the Court please.

I will address myself first to a paragraph in the Court's order for rehearing which I did not reach yesterday.

That is the question dealing with the application of the clear and present danger doctrine.

The question as it was stated in the Court's order reads, whether the clear and present danger doctrine as interpreted by counsel has application to the membership clause.

However, with respect to the accused, are with respect to the society, group or assembly of persons described in the statute, if that will hold whether such doctrine was or can now be properly applied in this case.

In the Dennis case, Judge Hand held that the clear and present danger doctrine as interpreted by him to meet that situation did apply to a conspiracy to organize a group to advocate violent overthrow and did apply to a conspiracy to advocate violent overthrow.

And he specifically found that on the record in that case, a clear and present danger then existed.

Now, in the principal opinion of the four Justices on the majority side of this Court and there was no opinion for the Court in the Dennis case, but in the principal opinion in which four Justices erred.

The Judge Hand's formulation of the rule and of the application to that set of circumstances was specifically affirmed.

The concurring opinion of Mr. Justice Frankfurter however placed more weight on the congressional determination that speech should be regulated in this case and less emphasis upon the clear and present danger doctrine as applied by a Court.

It is our position that this doctrine should apply to the membership clause in precisely the same to the -- precisely the same extent that is applied to the organizing clause or the conspiracy clause.

If constitutional limitations on interferences with speech require some such overwriting limitations and the Court has generally held that it do, then it seems as though they should apply to all aspects of the Smith Act and reasonable of the application should be made here.

I think that some danger in -- in making this application in the -- in the original language of the rule, I think that Judge Hand was carrying through the spirit of the rule but certainly varying it from its original applications.

But for the present purposes I think that you do get a sufficient protection if you accept that rule.

That is, that in each case that must be asked whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid danger.

Justice Felix Frankfurter: Do you mind telling me -- do you mind directing me where I can find out what content you give to that phrase, clear and present danger?

Where should I go to find out what it contains --

Mr. John F. Davis: What it --

Justice Felix Frankfurter: -- and means?

Mr. John F. Davis: How -- how --

Justice Felix Frankfurter: How I'm to apply it?

What it means?

Mr. John F. Davis: The only way that I know that when you find out what it means is to find out how it was applied to the original Schenck case, to the Gitlow case, the Whitney case and how -- and the American Communications against Douds.

Justice Felix Frankfurter: Do you think if the original Schenck and Douds case, a real danger to the country?

Mr. John F. Davis: I think there's been a very real change in the application in -- in this rule and I think its -- I think particularly in the -- in the Gitlow case, that today we could hardly say -- would hardly say that this was a very real danger as far as the --

Justice Felix Frankfurter: (Inaudible)

Mr. John F. Davis: Because --

Justice Felix Frankfurter: Real danger in this country?

Mr. John F. Davis: Well, it -- its -- we must consider in some of these cases that the danger that was contemplated wasn't danger of overthrow of the government by -- by force and violence.

Instead, the danger which was involved in the Debs case, the Abrams case was interference, a lesser interference and overthrow, but an interference was recruitment and all that was necessary in order to find a clear and present danger in that case was, if there was a clear and present danger that there would be some affirmative interference with enlistment and recruitment.

Justice Felix Frankfurter: When the phrase was first used, it had nothing to do with danger to the country, clear and present danger become substantive subject matter --

Mr. John F. Davis: That it --

Justice Felix Frankfurter: -- that Congress referenced to which -- the Congress legislature.

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: All that stuff about danger to the country is an infusion that was as far from Judges Holmes' (Inaudible) from anything I can imagine.

Mr. John F. Davis: Yes, yes.

It's again --

Justice Hugo L. Black: You agree with that?

Mr. John F. Davis: Well --

Justice Hugo L. Black: What was -- was in Justice Holmes' mind (Voice Overlap) --

Justice Felix Frankfurter: What he -- what's the word he used?

Justice Hugo L. Black: What was in his mind when he wrote?

Mr. John F. Davis: Well --

Justice Felix Frankfurter: I said, in the words that he used to explain his mind.

He said a clear and present danger becomes substantive subject matter that Congress can deal with.

Mr. John F. Davis: Congress has a --

Justice Felix Frankfurter: He wasn't talking about overthrowing the government at all.

Mr. John F. Davis: No.

No.

Justice Hugo L. Black: Do you know whether he was or not?

Mr. John F. Davis: Well, in the present -- in -- in the case --

Justice Felix Frankfurter: Do you know whether there were any words in what he said that indicated that?

Mr. John F. Davis: In the -- in --

Justice Felix Frankfurter: I have no other means of knowing except the words he used.

I mean, defined what the danger was supposed to be.

It was in his reference, become substantive matter regarding which Congress conversed with.

Are those his words?

Mr. John F. Davis: Well, his word -- now, in -- in the first place, Justice Holmes was dealing not with the Smith Act or one of the State Acts which are similar to it.

He was deal -- dealing with an Act which deals with -- with interfering with the draft in carrying on the -- the war.

And his words were, his specific words were, the question in every case of whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent and here he was talking, I think Mr. Justice Black in this case about the particular substantive evils which were legislated against in the particular statute which he was trying to find out.

Justice Felix Frankfurter: Not precluding, not precluding.

Mr. John F. Davis: Now, later on in -- when we get to Gitlow and Whitney, there we get the associations whose object is to overthrow government by force and violence.

Justice Hugo L. Black: What did they say?

What's the language --

Mr. John F. Davis: The statute --

Justice Hugo L. Black: What's the language used there at the trial?

Mr. John F. Davis: The stat -- in the statutory language?

Justice Hugo L. Black: The two -- no, the two that you've -- these two cases you're talking about.

Mr. John F. Davis: Well, in the two cases that I'm talking about the --

Justice Felix Frankfurter: Knowing Gitlow because that receded.

Mr. John F. Davis: No, Gitlow followed the Schenck.

It was in Gitlow against New York, It was an -- was an application of the clear and present danger doctrine to the New York statute --

Justice Felix Frankfurter: (Inaudible)

Mr. John F. Davis: -- which is the -- the original prototype of the Smith Act and Whitney followed that.

Justice Felix Frankfurter: Yes, Whitney followed.

Mr. John F. Davis: And the majority of the Court in Gitlow said, "Here, we have an Act which is addressed to free speech."

The Act itself is suppose to -- it deal -- deals with advocacy.

And so, the majority of the Court said, "We have no need of following the clear and present danger doctrine because the legislature in that case of New York legislature has made a determination that free speech should be restricted to this extent."

Mr. Justice Holmes in his dissent joined in by Brandeis in the Gitlow case said that he felt he still had to have a clear and present danger, but here when he was talking about a clear and present danger, he was talking about a clear and present danger of the offense which was defined in the statute.

And here the offense --

Justice Hugo L. Black: What was the language he used there?

Do you have (Inaudible) before you.

Mr. John F. Davis: The offense -- of the New York statute?

Justice Hugo L. Black: Of the -- of the Gitlow case?

Mr. John F. Davis: No, well --

Justice Hugo L. Black: The language you were talking --

Mr. John F. Davis: The language he quotes that there must be a clear and present danger from -- I don't have the language of it but he -- he says that he believes in the fact that the language which I have just read which was from the Schenck case should be applied in the -- to the Gitlow statute.

Justice Hugo L. Black: Do you have the exact language that was used in the Whitney case?

Mr. John F. Davis: No, I don't.

Justice Hugo L. Black: No.

Mr. John F. Davis: The Whitney case -- the Whitney state -- the Whitney case, I thought it was -- was Justice Brandeis'.

Justice Hugo L. Black: Correct.

Mr. John F. Davis: And again he said that as in the Gitlow case, he felt that this rule, this clear and present danger rule -- I'm sorry I cannot quote it exactly.

Justice Hugo L. Black: That's alright.

Mr. John F. Davis: But should be applied even though the legislature had made a determination itself that this speech should was -- be prohibited.

And the difference between the majority and the minority in those cases was whether or not the clear and present danger doctrine should be applied when the decision has been made by the legislature in exactly (Voice Overlap) --

Justice Felix Frankfurter: But nobody has suggested that in this field of judicial review isn't the same as it is in other things namely that the legislative word isn't (Inaudible).

Has anyone suggested that?

Mr. John F. Davis: No, I think not.

But it's a question of application and this Court will have to determine whether the legislative -- if even on that basis they have to determine whether it was a reasonable application in -- in a -- in a degree that gets back to the same point.

Justice Hugo L. Black: Legislative word on what?

Mr. John F. Davis: On whether or not there is a clear and present danger from this activity.

Justice Hugo L. Black: What do you construe that to mean?

I -- just quite to get your --

Mr. John F. Davis: Well, what I mean is that --

Justice Hugo L. Black: Do you mean that it means that anytime a speech could be reread anytime, the legislature declares that a clear and present danger that some valid law should be -- will be violated?

Mr. John F. Davis: No.

I think that --

Justice Hugo L. Black: Or -- or what?

Mr. John F. Davis: -- what it means is Congress in adopting the Smith Act, adopts an Act which says that advocacy which is a type of speech shall be restricted in these ways and they say it's necessary.

Congress said it is necessary because of the subversive activities which are recurring and that these organizations are controlled by foreign countries and it's proved dangerous in other countries and they well proved dangerous here.

And -- and a long, long basis of hearing from reports showing that it's necessary for this type of legislation in this restriction on free speech if you please, in order to protect the country from the danger of -- of violent overthrows.

Now, the majority --

Justice Hugo L. Black: You mean, violent overthrow or advocacy of violence to overthrow?

Mr. John F. Davis: Well, a violent overthrow itself.

Justice Hugo L. Black: That -- that advocacy might bring it about.

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

Now, Congress has made a determination when it passes this Act that this limitation on free speech is essential for the welfare of the country.

And the question is, whether in that situation the Court should then, as a new matter make a determination of whether there is a clear and present danger or whether they should instead review and give weight to the determination by the Congress that there is a clear and present danger in that for this necessity of restriction on free states.

Justice John M. Harlan: Well there's still another view that might be taken and that is that even though you assume or trying that at the time the Congress acted, it was within its rights in making its legislative findings that take a long time for legislation to get appealed.

Therefore, of course might take a look and say, "Now, as of this time those convictions are no longer the same."

Mr. John F. Davis: I think -- I think that is very true.

I think that the Court would have to determine whether there has been such a change that its now -- although constitutional when passed that it -- in not -- in being applied at the present time, there is no (Voice Overlap) --

Justice John M. Harlan: Well, that's true as to all this -- of this type --

Mr. John F. Davis: Yes.

Justice John M. Harlan: -- of legislation --

Mr. John F. Davis: Yes.

Justice John M. Harlan: -- that is challenged under the Due Process Clause, (Inaudible) regulation statute is found constitutional by this clause during the war and later on was found no longer to satisfy the requirement.

That it had become by -- of course by circumstances clearly the advocacy.

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

I think Mr. Justice Harlan that this is the refinement on -- on the weight to be given the decision of Congress rather than a third approach to it.

Although, you can cut this kind of argument and then you kind of (Inaudible) but it -- that's -- I would think that this was a -- was a refinement on the -- in giving weight to the congressional finding.

The second part of the Court's questions here is whether the test, whatever test it should be and I think there's some danger in tying it down to specific words, but whether the test should be applied to the accused or to the group.

Now, here we have a (Inaudible) different opinion with petitioners, both petitioners in -- in Scales and in Noto because we think it's perfectly obvious that the application under this statute should be to the group rather than to the individual.

In this respect, the offenses charged here are comparable to the conspiracy statute.

It's a type of statute which attacks the effect of group activity although the individual action of any one of the members of the group cannot itself be said to result in the -- in the effect which is to be prevented.

In the ordinary conspiracy case which we're all familiar with and I -- I'm not asserting that this is a conspiracy case.

It's of a similar nature.

In the ordinary conspiracy case, the individuals involved very likely cannot bring about the -- the evil plan which the group has planned and it couldn't prove that anyone of them was primarily responsible and it isn't important that you should.

And all that I'm suggesting is that it's not a strange concept to hold each one of these individuals responsible for the group actions to which he contributes even though you do not prove that there's any clear and present danger from his particular activity, the group activity which we are looking at.

Now, I wish to return for just a minute to what we were talking about yesterday as the activity factor in defining membership.

I don't think that this needs be considered as a complicated -- complicating additional element in the crime.

Congress has prescribed certain action and it has used the term membership.

And it's impossible for us to abide this Act to facts of individual cases without giving some meaning to that term membership.

Now possibly, it could have been construed to mean that the person was carried and enlist on the party role for the Communist Party then he would be a member.

But, in the first place it's far from clear that there are any party roles in this entirely -- seems entirely foreign to what Congress intended that they would want to impose a criminal liability on an individual because the party has put him on this role.

Justice John M. Harlan: What does it cost to join a Communist Party?

I recall one witness, he said he paid 10 cents to in there.

Mr. John F. Davis: Well, the only evidence in -- in these cases so far as I know is it was 50 cents.

Justice John M. Harlan: 50 (Inaudible)

What you're addressing yourself to is that the Court, you're asking the Court to give some content to this membership, but is independent as the vagaries and degree to different kinds of memberships.

It might suffice, vis-a-vis the institution (Inaudible).

Mr. John F. Davis: That's -- well I -- yes, I think the Court has to give some content, Your Honor because -- I don't -- I -- I think that the term membership isn't -- isn't self-defining.

I think it's got to be applied to particular facts in a --

Justice William J. Brennan: Well Mr. Davis --

Mr. John F. Davis: -- particular case.

Justice William J. Brennan: -- you go beyond that.

You go beyond that, don't you?

You asked us to give content to a membership which is not membership per se, whatever that is.

Mr. John F. Davis: No.

Well, as far as this -- as --

Justice William J. Brennan: Well, didn't you tell us yesterday that your position was that because of 4 (f), there maybe no constitution of the one who was a member per se.

Mr. John F. Davis: That is right.

Justice William J. Brennan: So that what you want us then to do is give content to something which is not membership per se.

Mr. John F. Davis: Well, the -- this -- I -- I'm not sure that active membership couldn't well be called membership per se.

I'm trying to give the -- the definition of what membership is and I think that active membership might well be called, could be called.

But the -- the reason that the Smith Act goes beyond membership per se is because it requires under the statute knowledge of the purpose of the organization and under the interpretation given in the Dennis case, it requires a specific intent to carry out those purposes.

And these are the additional elements that show that membership per se is not sufficient but I am trying to believe that my present argument as to membership, meaning active membership would include -- that active membership would be -- couldn't be considered membership per se.

Justice John M. Harlan: Well, you -- you -- I see.

Then your position is that whatever may be membership, before you get that which is criminal under the Smith Act, you have the elements, the knowledge and intent.

Mr. John F. Davis: That is right.

And intent in the sense of the -- of the Dennis case of an -- in specific intent to see that the illegal objectives of the party is carried out.

Justice Potter Stewart: Mr. Davis sir, something has been bothering me about your whole construction of the membership clause which as I understand is, I mean, as you presented to us, under that clause the Government has to prove associating a -- an association with an organization bent on the overthrow of the Government of the United States by force or violence.

And this association has to be entered into by the defendant with a personal intent to overthrow the United States of America by force -- the Government by force or violence and that he has to be active in that association.

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

Justice Potter Stewart: Now after you said all of that, haven't you proved enough to convict this man of the other provisions of the Smith Act without any reference at all with the membership clause?

Mr. John F. Davis: Well, I -- I -- in many cases, yes but not in all cases.

Now, of course it won't come within the organizing factor, that's been thrown out so that we can now deal with conspiracy (Voice Overlap) --

Justice Potter Stewart: Conspiracy (Inaudible)

Mr. John F. Davis: And I think that -- I don't think it would necessarily prove the advocacy feature.

This is only a question of whether it can prove the conspiracy feature as such.

A conspiracy has always been defined in -- as Mr. -- General Taylor points out yesterday, American Law Institute sticks to the thought that there must be an agreement.

There must be a specific conscious agreement of -- rather than as we have in this case, a mere association together.

It's very close and I'm not sure you couldn't prove a conspiracy in almost all of these cases but there are technical differences.

There is a technical difference which at least the American Law Institute has recognized between the conspiracy doctrine and just being a -- just associating yourself with this group.

Justice Potter Stewart: Now the -- in the Yates case, as I understand it, it was the Government's theory that the Communist Party itself with the -- was the conspiracy.

And I -- I have read the Court's opinion had the Court read that the -- that the proof of incitement to action to overthrow the Government of the United States at some convenient time was sufficient.

That -- that would have been a valid case under the -- under conspiracy section.

And why -- how is that different at all from the -- from the membership section as you've now beat it up --

Mr. John F. Davis: Yes.

Justice Potter Stewart: -- adding these three other elements or two other elements?

Mr. John F. Davis: I -- I want to -- I wanted and I haven't been trying to beat it up but I'm just trying to interpret it, but the -- the -- in your -- you're quite right, in Yates, there were two elements.

We tried to prove conspiracy in two ways.

We tried to prove it once through their participation, their -- their formal action in connection with the party as such and that the nexus was then, what the party itself proved.

We also tried --

Justice Potter Stewart: And that the Court didn't accept.

I think purely as a matter of insufficiency of the evidence.

Mr. John F. Davis: That is right.

Now, I think it's possible that in this case for example, certainly in the -- in view of Mr. Noto's conferences with -- with Lautner and his appearing with his joining together in -- in the various schools that you could've planned the conspiracy in this case.

You -- you do have the overt and active -- well, you don't need the overt and active conspiracy in the Smith Act.

But you do have the joining together, the specific joining together of this man with the other people to carry out the aims of the party and that would -- we could have put it under the -- the conspiracy charge.

It's a little harder.

You've got more to prove.

You've got to prove specifically the he did sit down with other people and do certain things.

I think it's proved in the case, but I -- the Government didn't undertake to make that proof in the case.

They undertook to make the proof only that he was unknowing an active member and whether his activity was in conjunction with somebody else and did not -- didn't undertake to prove.

Justice Potter Stewart: Now, in this -- in this case that you're now arguing, Noto, there was no instruction on the parameter of activity, was it?

Mr. John F. Davis: No, there wasn't.

In this case that -- the -- the Court, the District Court told the jury, "You've got to find that he was a member."

And they didn't attempt to define member in any way because they said it's not -- there's no -- in effect they said, "This is conceded and you don't need to -- well, I think he said in so many words.

You don't need to be worry about membership, so there was no occasion by him to define membership or asked the jury to make any findings.

Chief Justice Earl Warren: Can we sustain the conviction that's in the situation?

Mr. John F. Davis: Well, yes if you think you can --

Chief Justice Earl Warren: On what theory?

Mr. John F. Davis: -- because -- on the theory that the elements of the crime was properly defined and with the nature of the party knowing membership in it with intent.

Now, there was no dispute in this -- in this record as to membership, the nature of the membership.

He was concededly an -- an officer for years, from 1933 on.

Concededly he was not so that when the judge came to instruct the jury, he could tell the jury, "These are the elements, the nature of the body and membership."

But there is no dispute about membership therefore I don't have to define the terms.

They don't have to ask you to do anything about it.

You can -- in effect you could -- he was telling them -- you can come in and -- and find as far as the -- the conviction is concerned.

You can find membership without any -- anymore questions, its not in doubt.

Not questions --

Chief Justice Earl Warren: You don't -- (Voice Overlap) -- telling us more than being a member per se.

Mr. John F. Davis: No because there was no -- there was just no issue in the case about the -- about Noto's activities in the party.

There wasn't any chance of the jury finding anything else.

Chief Justice Earl Warren: Having thought of that, is that was in the sense of an ingredient at the time --

Mr. John F. Davis: Well --

Chief Justice Earl Warren: -- that the issue has been -- only been raised by -- by the Government proving it.

Mr. John F. Davis: Well, it is membership of course.

There's an essential element of the crime but I --

Chief Justice Earl Warren: But not membership per se.

Mr. John F. Davis: Well, membership was -- well, membership plus knowledge plus intent is -- are the elements.

Chief Justice Earl Warren: Which -- was the effect?

Mr. John F. Davis: Well, because the statute says with knowledge and the Court in -- in Dennis says with intent so that these are necessary and the instructions in -- in Dennis, the intent was all we talked about, the necessity of proving intent.

But if we comprehend activity as a part of what the word membership means, if membership means in effect, active membership rather than nominal passive membership.

If there's no dispute in this case, if all of the -- if all of the evidence is that he was an active member and if the Court says the jury as far as membership goes, as far as being a member is concerned, there's no -- there's no issue for you to decide.

Justice Potter Stewart: Wasn't -- wasn't that also true in the Scales case?

Wasn't it conceded that he was the --

Mr. John F. Davis: That is --

Justice Potter Stewart: -- boss of the party in North and South Carolina and yet in that case the Court did instruct the jury (Voice Overlap) --

Mr. John F. Davis: Yes.

We -- we asked the Court to instruct it.

It seems as though it was -- as thought it -- it would bolster the case to have an -- have an instruction in the jury findings.

Justice Potter Stewart: I don't -- if that was true in that case it would be equally true in Noto.

Mr. John F. Davis: If it were necessary in Scales.

If it were necessary in Scales by (Voice Overlap)

Justice John M. Harlan: But the point is that Noto was tried before the Government introduced this activity factor in the situation as to tracking down the Government.

Mr. John F. Davis: It wasn't formulated as -- as clearly as it was (Voice Overlap)

Justice John M. Harlan: Well, formulated but it wasn't articulated.

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

That's subjective.

Justice John M. Harlan: Is that right?

Mr. John F. Davis: That is true.

Justice John M. Harlan: I don't say that doesn't mean that you can't hold his convictions that the -- that's the fact.

Mr. John F. Davis: That -- that is the fact although I may say that we find before the articulation or formulation that the Government in various (Inaudible) places in its brief, perhaps inadvertently refers to activity, of course with -- that -- as -- as an element in the party.

Justice John M. Harlan: The point is if you tried Yates in the context of your activity factor and in the context of Yates, and you put everything in, you thought --

Mr. John F. Davis: Withheld.

Justice John M. Harlan: -- withheld.

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

Chief Justice Earl Warren: Mr. Abt.

Argument of John J. Abt

Mr. John J. Abt: May it please the Court.

I should first like to say a little something more about the insufficiency of the evidence here.

Mr. Maroney under questioning by the Chief Justice was unable to point to a single statement by Noto or by any party members during the entire 20-year period covered by the evidence, which on its face constituted an incitement to violent overthrow.

Justice John M. Harlan: What about the statement, neither that you referred to it?

What -- what about the statement that he made that the newspaperman that came into somebody's house?

It was the kind of a fellow that he would live to see the day when he would be up against the wall.

Mr. John J. Abt: You're Honor, that kind of a statement about the newspaperman was a violation of the Smith Act or criminal intent.

I'm just afraid that the -- it had prosecutions of several recent documents of the Whitehouse and would be indeed very difficult to get a form in either House (Inaudible)

Justice John M. Harlan: You've got to look at that statement in the context of a lot of other things.

Didn't the statement just out of the blue expressing the violent disagreement with somebody which you don't like?

Mr. John J. Abt: At most, Your Honor, this was the statement of a desire violently to overthrow an individual, not -- not to overthrow the Government of the United States.

Justice John M. Harlan: Overthrow an individual?

Mr. John J. Abt: He said he'd like to line them up against the wall and shoot so and so.

That -- that has nothing to do with overthrowing the Government of United States.

He says, I -- the worst you can say about it is, he is saying, I hope the day will come when we'll have socialism in this country, the fellows on our side will be in power and we can line up -- line the guy like (Inaudible) against the wall and shoot him.

It's not a very nice thing to say, but it has nothing to do with overthrowing the government by force and violence.

Because as far as that statement is concerned, the transition to the kind of government that Noto liked could -- could come about in a perfectly peaceful manner.

Justice John M. Harlan: You say that's not a matter that the -- they submitted with the jury, considered by the jury in relation to the (Inaudible)

Mr. John J. Abt: I don't think so Your Honor.

In addition to that Your Honor, that's all you -- all that can be dredged up in this record.

There certainly is no evidence in this record of what Your Honors said in the Yates -- the Smith Act (Inaudible) and that systematic teaching of incitement of violence.

If that's all, assuming that the -- the jury could considers that question, if that's all there is in 20 years, no -- no jury could reasonably find a systematic incitement of violence on that one episode.

Justice John M. Harlan: Who made that statement that Noto has made?

Mr. John J. Abt: Noto made it, I think -- I'm not sure Your Honor when 1948 or 1946, something.

Justice John M. Harlan: 1947.

Mr. John J. Abt: He was employed by a (Inaudible) newspaperman who has been writing half the stories published by Communist Party.

Justice John M. Harlan: This is a -- before the limitation (Inaudible)

It was not during the --

Mr. John J. Abt: Was before the limitation.

Justice Hugo L. Black: Where is that in the record?

(Inaudible)

Mr. John J. Abt: Page --

Unknown Speaker: (Inaudible)

Mr. John J. Abt: Do you have it with you, Your Honor?

Unknown Speaker: (Inaudible)

Mr. John J. Abt: May -- may I go on?

Mr. Maroney says in his argument that the Yates standard was met, not by the content of anything that they --

Justice Potter Stewart: Page 11 of the Government's brief.

Mr. John J. Abt: Thank you Your Honor.

Justice Hugo L. Black: Page what?

Justice Potter Stewart: 11 --

Mr. John J. Abt: 11.

Justice Potter Stewart: (Inaudible)

Unknown Speaker: Page 340 of the record.

Justice Potter Stewart: Page 11 of the Government's brief.

Unknown Speaker: (Inaudible)

Mr. John J. Abt: Mr. Maroney says that the Yates standard was met not by what was said either by party members or by the petitioner here, but by the evidence on the party's concentration policy and the evidence as to the elaborate measures of concealment which were taken to protect party leaders and members.

It shows inference of the purpose of these activities was to prepare for the day at some uncertain future time when conditions with the auspicious for an attempt of that forcible overthrow.

It seems to me that all these inferences are, to say the least very farfetched.

But even if they're reasonable, they don't help the Government's case because Mr. Maroney's error is that he confuses steps in preparation of insurrection of some future time with present incitement to forcible overthrow in some future time.

The Yates case rejected evidence of precisely the kind that Mr. Maroney relied -- relies on.

Mr. Justice Harlan said in his opinion in that case, however much one may abhor even the abstract teaching of forcible overthrow the government or believed that forcible overthrow was the ultimate purpose to which the Communist Party is dedicated.

It is upon the evidence in this record and I assume that that means the evidence in this record on the question of incitement that the petitioners must be judged in this case.

And Chief Judge Clark in the Second Circuit disposed of the Government's contention in the United States versus Silverman where he said and I quote him, "The prosecution stresses the proof of industrial concentration and of concealment."

But these do not rationally raise any inference of the appellants engaged in a plot to advocate insurrection at the time they were hiding and seeking factory jobs.

The industrial concentration possibly suggest the conspiracy to commit sabotage, espionage or political strikes going beyond mere labor proselytizing.

But it not -- does not point very directly toward illegal exhortation.

Similarly, concealment is consistent with any unpopular or illegal enterprise, but the jury could not tell the nature of the enterprise from the mere fact of concealment.

Furthermore, Mr. Maroney did not and cannot point to any evidence of the advocacy of forcible overthrow even as a matter of abstract doctrine in the limitation period.

And he has no reply to my demonstration that he can't convict the petitioner on the theory of a presumption of continuance.

Now, not only is there is no evidence of party activity in the limitations period, but there's no evidence of any significant conduct by the defendant.

My brief at page 65 -- 66, I summed up everything in this record with respect to the activity of the respondent during the limitations period and here it is.

In September 1951, he solicited a $10 contribution to the party and talked about the American Labor Camp Party candidates with one witness.

In the same month, he told another witness he was going under a disguise to conceal himself.

Months later, he picked up some party publications which is -- his wife had left for him at the home of a witness and told this man that he had to move on.

And in 1953 or 1955, he lived in New Jersey where he was employed by the Goodyear Rubber Company as a stock clerk under an assumed name.

Now, how can any of that evidence be probative?

Number one, that the petitioner knew that the Communist Party was engaged in incitements to violence or second that he intended to overthrow the government by force and violence.

I say that obviously it can't to prove either of those propositions.

And certainly, none of the evidence in this record, either about the petitioner or about the Communist Party within the limitations period can conceivably establish to anything they were doing in this period created a danger even remotely to the Government, let alone a clear and present danger.

Now, I also want to say just a word about the -- in turning the -- the testimony about the man who was said to be on the lamb.

That incident was supposed to have occurred in the early spring of 1951 and it likewise therefore is outside of the statutory period.

All we know about that incident is the following, page 299 of the record.

That Noto said one of our top peoples on the lamb.

He said the government is trying to frame this man and throw him in jail.

He said it was over what the newspapers call was Adam's spy business.

He said it was necessary to get this man out of the country in order to get him out of the clutches of the law.

And he wanted to know if I were to give him shelter in my home.

But the man never showed up.

Nothing other -- ever further happened about the whole business.

There's nothing here to indicate that this man, whoever he was -- and by the way there's not the slightest suggestion in the record that he was either Rosenberg or in any way connected with Rosenberg.

There's nothing to show that whoever he was, he was engaged in any criminal activity at all.

At best, they mostly have is Noto's statement that the Government was trying to frame him.

He may have been a perfectly innocent man.

Even if he wasn't, as I indicated to Mr. Justice Stewart in response to a question yesterday, the whole incident might have some conceivable relevance to a prosecution for harboring or some crime of that kind that has nothing to do with incitement.

Now, just a word about the constitutional issues.

Mr. Davis said Dennis found a clear and present danger in the provisions denouncing conspiracy to organize and advocate and that takes care of all the crimes under the Smith Act.

But that obviously is not true and Yates itself demonstrates that that is not true.

Yates said that we construe the conspiracy to advocate provisions of the Smith Act as requiring proof of a conspiracy to engage in incitement now for future violent overthrow.

We don't have some of the questions of the constitutionality of a conspiracy to engage in incitement at some time in the future.

And we don't do it because a conspiracy to engage in incitement at some time in the future is one further removed from the advocacy itself.

Now, Dennis have decided all clear and present danger questions under all offenses created by the Smith Act, but obviously there would have been no necessity for that reservation.

It seems to me that the membership clause, even with all the garnishments that the Government gives it, is one step further removed either -- even from conspiracy to advocate incitement in terms of the incitement in the future.

Obviously, therefore you've got to consider whether the membership clause itself satisfies the clear and present danger doctrine.

Mr. Davis says, "Well, it's just like a conspiracy."

I tried to analyze the Act -- the statute yesterday and to show that it didn't bear any resemblance to that period.

All I want to say at this point is that it denies the defendant whatever is entitled to in a conspiracy case.

And that is a jury trial on the essential issues in a conspiracy case.

Was there a conspiracy?

Was the petitioner for the accused a participant in the conspiracy?

Did he perform some overt act in furtherance of a conspiracy?

And in addition, in a conspiracy case, an accused is entitled to instructions as to the character of the evidence which would be introduced against third party declarations.

Here, as I show in my brief and I haven't argued it here, time didn't permit.

The petitioner in this case was convicted on third party declarations of -- which were completely outside of his knowledge.

He knew nothing about and he didn't get the benefit of a conspiracy instruction that he would have had in a conspiracy case, to the effect that those declarations couldn't be used against him unless a jury first found that there was a conspiracy, that he was member of it, then the declarations and that the -- the client was also a member and that the declarations were made in furtherance of the conspiracy.

And all this proves the point that I was trying to make yesterday.

What the Government is asking for here is, is to validate this statute as a conspiracy law.

As I say employed the -- the difficulties that they found in securing convictions in the Smith Act conspiracy cases.

Thank you.