United States v. Dennis

CHASE, Circuit Judge

(concurring).

If this appeal involved the constitutionality of a statute outlawing appellants’ party, I would not think this opinion necessary. For I agree with my brothers that the validity of a legislative restriction upon an exercise of the freedom of speech is not to- be determined simply by the mechanical application of a legal formula or. rule of thumb, whether or not expressed in terms of “clear and present danger.” Rather, it is to be determined by weighing the competing, and in part conflicting,- interests necessarily involved, including the nature and gravity of the evil meant to be avoided *235 by the restriction and the degree of likelihood that the evil will occur if the restriction be not imposed. But their view, as I understand it, is that the First Amendment protects expressions of belief, though not calls to forcible action; that, as interpreted by the Supreme Court, the Amendment protects those utterances that are at once expressions of belief and calls to action — at least when those utterances are as to “political” matters (though apparently not those utterances that concern educational matters); that it is tacitly assumed, the appellants’ utterances prohibited by this statute were both expressions of belief and calls to action; and that, therefore, those utterances were of a type which might be an exercise of the freedom of speech. This view, I think, rests upon too broad an interpretation of the challenged Act and has resulted in giving insufficient effect to soundly decided cases that we are required to follow.

The Alien Registration Act, 1940, 1 Sec-tions 2 and 3, commonly called the Smith Act, among other things, prohibits any person (1) from knowingly or wilfully advocating, abetting, advising or teaching the “duty, necessity, desirability, or propriety” of overthrowing any government in the United States by force or violence; (2) from helping to organize any society or group of persons who “teach, advocate, or encourage” such forcible overthrow; and (3) from conspiring to commit the acts prohibited as above. The trial court, as its charge shows, construed the Act to mean that an accused, to be found guilty, must be found to have taught or advocated action to accomplish overthrow, by language reasonably calculated to incite such action. This construction of the Act was, I think, demanded in view of, first, the similar interpretation of a statute prohibiting language advocating, advising or teaching overthrow by unlawful means in Gitlow v. People of State of New York, 268 U.S. 652, 664, 665 , 45 S.Ct. 625 , 69 L.Ed. 1138 , — which statute, as Judge HAND says, must have been the “model” of the one at bar — and, second, the canon that statutes are to be construed 'so as to avoid constitutional difficulties, or, more particularly, in the case of legislation in the realm of civil liberties, to restrict those liberties least. Schneiderman v. United States, 320 U.S. 118, 158 , 63 S.Ct. 1333 , 87 L.Ed. 1796 . Thus, as properly interpreted by the court below, the Smith Act does not prohibit prophecy that overthrow will occur or abstract discussion as to the value of revolutions, such as that engaged in by some of the Founding Fathers. 2 Nor does it impinge upon beliefs as to the necessity or desirability of the most extreme governmental and political changes, such as, for example, the abolition of the legislative and judicial branches of the government, or of the liberty of speech or of the press, or of the requirement that one’s life, liberty or property may not be taken from him without due process of law. What it does prohibit is the urging of action to accomplish such changes as these by forcible means. 3 The effect of the statute upon beliefs is, therefore, a limited one only: it does not prohibit the holding of any belief; it prohibits only the expression of but one belief, viz., that action should be taken to overthrow the government by force. While the prohibited expression is no doubt, in the broad sense, as to a “political” matter, Judge HAND refers to no case which holds it protected by the First Amendment.

On the contrary, in Gitlow v. People of State of New York, 268 U.S. 652 , 45 S.Ct. *236 625 , 69 L.Ed. 1138 , the Supreme Court held “That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear.” 268 U.S. at 669 , 45 S.Ct. at page 631 , 69 L.Ed. 1138 . Said the Court: “Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. * * * The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has en-kindled the flame or blazed into the conflagration,” Ibid. As was said in Chaplinsky . v. New Hampshire, 315 U.S. 568, 571, 572 , 62 S.Ct. 766, 769 , 86 L.Ed. 1031 , “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” I would but add to what was said in the Gitlow case that the utterances prohibited by the Act there construed and by the Smith* Act are, like those just referred to, “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” 315 U.S. 572 , 62 S.Ct. at page 769 , 86 L.Ed. 1031 . The benefit, if any, to be derived from language advocating action to overthrow is even more “clearly outweighed” by the interest in our national security and in- the preservation of our hard-earned liberties and our republican form of government which protects them not only in theory but- in fact. At least it is for the legislature, here the Congress, so to determine, once it reasonabty finds that such advocacy presents such danger to the government. 4 That Congress could reasonably have found that it did so is plain: this statute was enacted shortly after the world became aware of what vast -dangers lay in “Fifth Columns,” so called —Norway was but one example. The Congressional judgment has, indeed, been confirmed,- again and again, by events. Communism has by forcible overthrow engulfed or attempted to engulf nation'after nation, after preparation for the use of force by just such advocacy as this Act forbids. As this is being written, Fifth Column activities are aiding the North Koreans in their war against the United Nations. Again, the President has just now warned all citizens and police officers to be watchful of spies, sabotage, and other subversive activities. The uncovering of a Communist spy ring in Canada 5 and the recent conviction of a British atomic scientist on charges of espionage are but further instances of proof, though none be needed, that the Congress was acting wisely, and most reasonably, when it enacted the statute at bar.

It is, I think, no answer to this that appellants urge political and economic changes, and there is great value in giving the fullest measure of protection to such speech. If this statute made it criminal to belong to the Communist Party, then that question might arise, and, as I have said, this opinion would not be necessary. The Act at bar, however, is not so broad, as I have attempted to show.

The only answer to the rule of the Git-low case is, I believe, that individuals have *237 a constitutional right to revolt. Of this, the Constitution contains its own refutation. The Preamble; Art. I, Sec. 8; Art. III, Sec. 3; Art. IV, Sec. 4. History confirms this also. One need only refer to the so called- “Whiskey Rebellion” and the secession of the Confederate States.

That Gitlow v. People of State of New York was correctly decided and is controlling here seems, to me at least, abundantly clear. It has never been overruled. On the contrary, it was followed in Whitney v. People of State of California, 274 U.S. 357 , 47 S.Ct. 641 , 71 L.Ed. 1095 . It was approved in Stromberg v. People of State of California, 283 U.S. 359, 369 , 51 S.Ct. 532 , 75 L.Ed. 1117 , 73 A.L.R. 1484 . See also Herndon v. Lowry, 301 U.S. 242, 256, 257, 258 , 57 S.Ct. 732 , 81 L.Ed. 1006 ; Bridges v. California, 314 U.S. 252, 260, 261 , 62 S.Ct. 190 , 86 L.Ed. 192 , 159 A.L.R. 1346 ; Cardozo, J., dissenting in Herndon v. Georgia, 295 U.S. 441, 450, 451 , 55 S.Ct. 794 , 79 L.Ed. 1530 . It is true that language from the dissenting opinions in the Gitlow and Whitney cases has frequently been referred to, though sometimes with disapproval. This is as it should be, for that language has sometimes been helpful in cases where the challenged statute prohibits, not specific utterances, but results which the utterances may - tend to bring about. The Gitlow and Whitney cases remain good law. They are applicable here, and binding upon us. The principle they stand for is sound. I believe that they should be followed directly, and not merely by-passed.

. 54 Stat. 670 .

. An illustration is Jefferson’s “The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.” 4 Jefferson, Works (Ford ed.) 467.

. The sufficiency of the evidence to support the conviction is dear. This included, besides the evidence mentioned by Judge HAND, proof that many' of the Communist Party’s activities directed by tbe appellants, were conducted secretly and that appellants followed a policy of concentrating party members in basic industries, all for the purpose of achieving their aims of overthrow, as well as evidence tending to show that the party itself was closely allied to and sympathetic with, and perhaps absolutely dominated by, a foreign government, the Soviet Union.

. This is all that was meant when it was said in Herndon v. Lowry, 323 U.S. 242 , 258, 57 S.Ct. 732, 739 , 81 L.Ed. 1006 , that “ * * * the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”

. See The Report of the Royal Commission (1946).