William J. Brennan, Jr.

“ Proof that one lied in swearing that he does not believe in overthrow of the Government by force, on the other hand, must consist in proof of his mental state. To that extent they differ.
'To state the difference, however, is but to recognize that while objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does. ”

“ Of course we agree that the courts cannot 'ascertain the thought that has had no outward manifestation.' But courts and juries every day pass upon knowledge, belief and intent the state of men's minds-having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. * * * False swearing in signing the affidavit must, as in other cases where mental state is in issue, be proved by the outward manifestations of state of mind. ”

“ His understanding of the meanings to be attributed to 'member' and 'affiliate' clearly emerges from the following, read in light of his holding that the membership clause is constitutional:↑ To Mr. Justice Jackson, writing separately, the belief portion of the oath appeared unconstitutional. He agreed that the membership clause could withstand attack, but only because of certain peculiar characteristics he discerned in the Communist Party and in the condition of membership in it. ”

“ Underlying his holding was the proposition that the Communist Party was a foreign-controlled organization dedicated to the seizure of power by force; but the final, and crucial, link in the chain of reasoning was his characterization of membership in the party:↑ Since Douds can be authority for the constitutionality of the membership clause of § 9 (h) only with respect to the Court's clear understanding there of the meaning of 'member,' today's approval of a substantially altered definition appears to make necessary a new piece of constitutional adjudication. ”

“ Only six members of the Court participated in Douds. Chief Justice Vinson wrote an opinion for himself and Justices Reed and Burton. Mr. Justice Frankfurter wrote a separate opinion but, as regards the issue immediately to be discussed, Chief Justice Vinson also spoke for him.
The opinion of Chief Justice Vinson is partially a bifurcated one, distinguishing the clause forswearing membership in or affiliation with the Communist Party, [2] which this case implicates, from the 'belief' clause [3] under which the Government does not here charge the petitioner with false swearing. ”

“ I dissent because I think the instructions to the jury on the crucial definitions of membership and affiliation were fatally defective in light of our decision 12 years ago in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 677, 94 L.Ed. 925. The trial judge refused to give the following instruction requested by the petitioner:
'The communist party, like other voluntary organizations, sets forth conditions which a person must accept in order to become and remain a member. ”