State v. Boloff

The defendant was born in Russia. He still bears allegiance to that government. For six years he was a member of the Communist Party in the United States. With such a background, his very commendable ability to excavate for sewers and his natural hesitancy in speaking our language fail to raise a question in my mind as to his knowledge of the tenets of the party mentioned. Speaking English, as a witness in his own behalf, the defendant testifies that he cannot speak English. I think that he protests too much.

The defendant is charged with maintaining a membership in an organization which teaches that civic and industrial reform should be attempted by means of force and violence. Distinguishing a spoken or written utterance from an overt act, the offense charged does not involve the question of whether or not an overt *Page 651

act was committed. In this respect, it is like the offense of slander of a bank, of libel, of unlawful possession of liquor, many forms of vagrancy, soliciting for immoral purposes, and similar offenses. In other words, the question of whether an overt act was committed is not in the case.

In my opinion, therefore, in this case there are but three questions to be decided:

First. Is the statute constitutional that declares it to be a criminal offense to maintain a membership in an organization which advocates that force and violence should be employed as a means of accomplishing industrial or political ends?

Second. Was the testimony admissible which disclosed that a duly accredited member and spokesman of the organization in question, acting as such, advocated such inhibited doctrine?

Third. Should the appellate court attempt to extend clemency in the matter of punishment by reducing the sentence imposed by the circuit court?

To these three questions, I answer thus:

First. Under the overwhelming weight of authority, the first question must be answered in the affirmative. To my mind, a negative answer would indicate that this court looks with complacency, if not approval, upon a teaching inimical in the highest degree to a government ruled not by men or force, but by law. Such teaching has been advocated under many names, such as anarchy, radicalism, communism, etc. Interpreted by incontrovertibly established events of the past, in brief, that teaching is that if a law meets with your disapproval, you should kill the officer or officers whose duty it is to execute such law; if the editorial or managerial policy of a newspaper is distasteful to you, or if you have a grievance against any other industry, *Page 652

you should blow up the building and plant of that newspaper or other enterprise with bombs and other explosives; when opportunity arises, you should assassinate some distinguished public servant simply as a gesture of dislike for the established order of affairs; and as soon as sufficient strength comes to your cause, a revolution should be precipitated; privately owned property should be confiscated and the outstanding members of the ruling class, who, under our form of government, are representatives of all classes, should be murdered.

Here, where ballots instead of bullets rule, in the mart of ideas, this doctrine is contraband. To advocate it, is an abuse of "the right to speak, write or print freely" which abuse is expressly proscribed by the very section of the Constitution which prohibits the restraint of such right. An assembly furthering the advocacy of such doctrine is in no sense "for the common good."

Where this doctrine has attained controlling ascendency, its first fruits are repudiation, atheism, free love, free divorce, legalized abortion, and class despotism. These are noxious and pestilential. Any attempt to import them into the United States should be frustrated.

Second. The question of whether the organization in suit advocated force and violence for the purpose mentioned being one of the issues, it follows that proof of such advocacy was admissible as pertinent and relevant to that issue.

Third. By the Constitution of Oregon, the prerogative of extending clemency to convicts is given to the Governor. I am quite content to leave it there.

I concur in the able, excellent and exhaustive opinion of Mr. Justice ROSSMAN. *Page 653