John Marshall Harlan II

“ Moreover, apart from the inadequacy of the evidence to show, at best, more than the abstract advocacy and teaching of forcible overthrow by the Party, it is difficult to perceive how the requisite specific intent to accomplish such overthrow could be deemed proved by a showing of mere membership or the holding of office in the Communist Party. We therefore think that, as to these petitioners, the evidence was entirely too meagre to justify putting them to a new trial, and that their acquittal should be ordered. ”

“ Stated most simply, the problem is to choose between two possible answers to the question: when was the Communist Party "organized"? Petitioners contend that the only natural answer to the question is the formation date — in this case, 1945. The Government would have us answer the question by saying that the Party today is still not completely "organized"; [p307] that "organizing" is a continuing process that does not end until the entity is dissolved.
The legislative history of the Smith Act is no more revealing as to what Congress meant by "organize" than is the statute itself. ”

“ As used in the Smith Act and the indictment: (1) the word "advocate" means to urge or "to plead in favor of; . . . to support, vindicate, or recommend publicly . . . "; (2) the word "teach" means "to instruct . . . show how . . . to guide the studies of . . . "; The holding of a belief or opinion does not constitute advocacy or teaching. ”

“ The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. ”

“ The defendants, in common with other persons living under our Constitution, have the right protected by the First Amendment to criticize our system of Government and the Government itself, even though the speaking or writing of such criticism may undermine confidence in the Government or cause or increase discontent. ”

“ It would be dangerous indeed to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because it is of equal atrocity, or of kindred character, with those which are enumerated. ”

“ While it is understandable that Congress should have wished to supplement the general provisions of the Smith Act by a special provision directed at the activities of those responsible for creating a new organization of the proscribed type, such as was the situation involved in the Dennis case, we find nothing which suggests that the "organizing" provision was intended to reach beyond this, that is, to embrace the activities of those concerned with carrying on the affairs of an already existing organization. ”

“ The fact that the Communist Party comprises various components and activities, in relation to which some of the petitioners bore the title of "Organizer," does not advance us towards a solution of the problem. The charge here is that petitioners conspired to organize the Communist Party, and, unless "organize" embraces the continuing concept contended for by the Government, the establishing of new units within the Party and similar activities, following the Party's initial formation in 1945, have no independent significance or vitality so far as the "organizing" charge is involved. ”

“ The Government's burden is not met by proof that the defendant shared certain beliefs and made joint efforts to persuade other persons to adopt them, no matter what you may find the content of such beliefs to have been, or whether you may agree or disagree with such beliefs. ”

“ Whether you agree with these opinions or whether they seem to you reasonable, unreasonable, absurd, distasteful or hateful has no bearing whatever on the right of other persons to maintain them and to seek to persuade others of their validity. ”

“ This, of course, is a mistaken notion, for the [p323] overt act will not necessarily evidence the character of the advocacy engaged in, nor, indeed, is an agreement to advocate forcible overthrow itself an unlawful conspiracy if it does not call for advocacy of action. The statement in Dennis that "it is the existence of the conspiracy which creates the danger," 341 U.S. at 511, does not support the Court of Appeals. ”

“ As to the petitioners Connelly, Kusnitz, Richmond, Spector, and Steinberg, we find no adequate evidence in the record which would permit a jury to find that they were members of such a conspiracy. For all purposes relevant here, the sole evidence as to them was that they had long been members, officers or functionaries of the Communist Party of California, and that, standing alone, as Congress has enacted in § 4 (f) of the Internal Security Act of 1950, [35] makes out no case against them. ”

“ We think, however, that the doctrine [p338] of collateral estoppel does not establish any such concept of "conclusive evidence" as that contended for by petitioner. The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or "mediate" facts are concerned, the doctrine of collateral estoppel is inoperative. ”

“ As to the nine remaining petitioners, we consider that a different conclusion should be reached. There was testimony from the witness Foard, and other evidence, tying Fox, Healey, Lambert, Lima, Schneiderman, Stack, and Yates to Party classes conducted in the San Francisco area during the year 1946 where there occurred what might be considered to be the systematic teaching and advocacy of illegal action which is condemned by the statute. ”

“ In the view we take of this case, it is necessary for us to consider only the following of petitioners' contentions: (1) that the term "organize," as used in the Smith Act, was erroneously construed by the two lower courts; (2) that the trial court's instructions to the jury erroneously excluded from the case the issue of "incitement to action"; (3) that the evidence was so insufficient as to require this Court to direct the acquittal of these petitioners, and (4) that petitioner Schneiderman's conviction was precluded by this Court's judgment in Schneiderman v. ”

“ We hold that it does not.
The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v. Washington, 236 U.S. 273, and Schenck v. United States, 249 U.S. 47. [22] This distinction was heavily underscored in Gitlow v. ”