On the Smith Act

"The people are sick and tired of witch hunts, of which the Smith Act prosecutions were the high point," burbled suety Philip M. ("Slim") Connelly, Los Angeles editor of the Communist People's World. Gathered around Connelly in a Los Angeles lawyer's office last week was a jubilant quorum of the 14 California Communist leaders in whose cases the U.S. Supreme Court had just ordered acquittal (for five), and new trials (for nine). Spokesman Connelly was giving out the new Red line that Communist martyrdom (including, said Manhattan's Daily Worker, those "sublimely heroic" atom spies, Julius and Ethel Rosenberg) had broadened the liberties of all Americans. More accurately, the court had just considerably narrowed the law against the activities of Communist leaders.

The California Communists were convicted by a jury, sentenced to five years' imprisonment, and fined $10,000 each in 1952. Against them was a single-count indictment combining two sections of the 1940 Smith Act: 1) conspiring "to advocate and teach the duty and necessity of overthrowing the Government of the U.S. by force and violence"; 2) conspiring "to organize, as the Communist Party of the U.S., a society of persons who so advocate and teach . . ." On both elements of the charge the court last week found error.

Meaning of Advocacy. Writing for the majority, Justice Harlan laid the fault principally on District Judge William C. Mathes for issuing "fatally defective" instructions to the jury at the 1952 trial. Judge Mathes had instructed the jury that "advocacy and teaching" under the Smith Act did not mean merely talking about the "desirability" or "propriety" of overthrowing the U.S. Government by force and violence. Instead, said Mathes, it required "urging" the "necessity" and "duty" of violent, forcible overthrow.

The Supreme Court held that the crime, as Mathes described it, was no crime at all because it still came within the protective mantle of the Constitution's First Amendment, which guarantees freedom of speech and political belief. Wrote Justice Harlan: "The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something."*

As a proper legal definition of "advocacy and teaching," Harlan's opinion pointed to the 1949 jury instructions of Judge Harold Medina in the landmark trial in New York of Communist Party Secretary Eugene Dennis and ten other top U.S. Reds. The Medina instructions, upheld by the Supreme Court in 1951, said that the Smith Act denounced not the "abstract doctrine" of violent overthrow but the "teaching and advocacy of action" in "language reasonably and ordinarily calculated to incite persons to such action." Apparently, to the Supreme Court's mind, the key phrase was "incite to action"--and Judge Mathes had failed to use it.

The difference between the Mathes and Medina instructions might be "subtle and difficult to grasp," wrote Harlan, but this only proves the need for requiring clarity.

Justice Tom Clark, the court's lone all-out dissenter to the opinion, said the distinction was certainly too subtle and difficult for him. Clark added acidly: "Certainly if I had been [the judge] at the [California] trial, I would have given the [Medina] charge, not because I consider it any more correct, but simply because it had the stamp of approval of this court. Perhaps this approach is too practical. But I am sure the trial judge realizes now that practicality often pays."

Meaning of Organization. The Supreme Court's other major narrowing of the Smith Act was based on the meaning of the word "organize." The Smith Act specifies that whoever "organizes" groups dedicated to overthrow of the Government by force or violence is in violation of the law. Justice Department lawyers argued that the meaning of "organize" included such usual Communist Party activities as "the recruiting of new members and the forming of new units, and the regrouping or expansion of existing clubs, classes and other units"; in fact, said the Government, some of the defendants were actually titled Communist "organizers."

The Supreme Court was not impressed. Wrote Harlan: "We should follow the familiar rule that criminal statutes are to be strictly construed, and give to 'organize' its narrow meaning, that is, that the word refers only to acts entering into the creation of a new organization, and not to acts thereafter performed in carrying on its activities, even though such acts may loosely be termed 'organizational.' " Therefore, since the U.S. Communist Party was organized (i-e., founded) no later than 1945, and the defendants were indicted in 1951, the "organizing" indictment was barred by a three-year statute of limitations.

Facts of the Case. That decision made, the Supreme Court thumbed through the evidence of the lower-court trial to decide --like a jury--whether the defendants could be found guilty if the facts 'about "organizing" were excluded. (Although some critics, including dissenting Justice Clark, said the court was invading the province of the jury, the Constitution clearly gives the Supreme Court appellate jurisdiction "both as to Law and Fact"). Result: the court ordered that five of the defendants (including Slim Connelly) must be freed entirely, but that the other nine could be tried again on the sole basis of their "advocacy and teaching."

Even this was not enough for Justices Black and Douglas, who have long held that the Smith Act is unconstitutional. Black, in an opinion "concurring in part and dissenting in part," joined with Douglas in demanding acquittal for all 14 Communists. In fact Black advanced the proposition that the U.S. should move to protect its security only after rebellion or rioting has started. Concluded he: "The First Amendment provides the only kind of security system that can preserve a free government--one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines, however obnoxious and antagonistic such views may be to the rest of us."

*The distinction seemed less clear to respected Learned Hand, retired senior judge of the Second (New York) Circuit Court of Appeals, who wrote seven years ago: "Obviously one cannot teach or advocate the use of violence without specifically intending to bring about its use . . . The advocacy of violence may or may not fail; but in neither case can there be any 'right' to use it."

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