The opinion
FAHY, Circuit Judge
(dissenting).
Plaintiff is a veteran who was receiving disability compensation for pulmonary tuberculosis connected with his military service during World War II, when the Soviet Union was our ally. For heroism the United States awarded him the Distinguished Service Cross. When we entered the Korean conflict he became highly critical and abusive of our participation. I think it is fair to say he became by speech and writings a protagonist of the communist position regarding Korea, in opposition to the policy of the United States, the United Nations and the Free World in general.
As a result the Administrator of Veterans Affairs decided that plaintiff had forfeited the disability benefits he had been receiving. The Administrator asserted as authority to do this the statute, set forth in the majority opinion, which at that time provided for forfeiture by a veteran of disability benefits upon at showing satisfactory to the Administrator that the veteran had been “guilty of' mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies * * 38 U. S.C. § 3504 (1958).
The Administrator did not find plaintiff guilty of mutiny, treason or sabotage, nor did his decision rest upon plaintiff’s previous conviction under the Smith Act. In the case of another veteran the Court of Appeals for this Circuit had strongly intimated that a Smith Act conviction could not be the basis for forfeiture, that Act containing its own penalties. Wellman v. Whittier, 104 U.S.App.D.C. 6 , 259 F.2d 163 , opinion by Judge Danaher. The finding against the present plaintiff was that by speeches and articles he had been guilty of “rendering assistance to an enemy of the United States." I assume that this language describes an independent category of conduct and is not simply a modifying description of the immediately preceding categories of “mutiny, treason, sabotage.”
The application of the language to the speech and writings of the plaintiff constitutes a direct penalty for, and restriction upon, the use of speech and press. This is obvious. The case is indistinguishable in this respect from Speiser v. Randall, 357 U.S. 513, 518 , 78 S.Ct. 1332 , 2 L.Ed.2d 1460 . 1
We are asked by the Administrator to hold that by the vague language he relies upon Congress intended this restriction on speech and press. So to hold would require us to decide the serious and delicate question whether the restriction violates the mandate of the First Amendment that “Congress shall make no law •* * * abridging the freedom of speech, or of the press * If the statutory language can be reason *315 ably interpreted so as to avoid penalizing the use of speech and press that interpretation should be adopted so that the constitutional issue is not reached for decision. Though not to be construed so as to destroy its effectiveness, a statute is to be construed “narrowly to avoid constitutional doubts.” United States v. Harriss, 347 U.S. 612, 623 , 74 S.Ct. 808, 815 , 98 L.Ed. 989 .
* * * what Congress has written, we said through Mr. Chief Justice (then Mr. Justice) Stone, “must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity.” Lucas v. Alexander, 279 U.S. 573, 577 , [ 49 S.Ct. 426, 428 , 73 L.Ed. 851 ]. As phrased by Mr. Chief Justice Hughes, “if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62 , 52 S.Ct. 285, 296 , 76 L.Ed. 598 , and cases cited.
United States v. Rumely, 345 U.S. 41, 45 , 73 S.Ct. 543 , 97 L.Ed. 770 .
In contrast with the statute involved in Flemming v. Nestor, 80 S.Ct. 1367 , decided June 20, 1960, the language relied upon by the Administrator here is indefinite. It does not mention speech or writings. It can well be construed not to apply to these modes of expression, used however critically, when unaccompanied by conduct which, considered with what is said or written, would constitute a crime or at least would render direct assistance to the enemy. Gillars v. United States, 87 U.S.App.D.C. 16 , 182 F.2d 962 , held that speech as there used was not protected by the First Amendment since it constituted an element of the crime of treason. A construction which limits the restriction before us to comparable situations — that is, to situations where speech or writing is punishable or prohibitable without raising a serious issue under the First Amendment — is plainly indicated. See Speiser v. Randall, supra, 357 U.S. at pages 519-520, 78 S.Ct. at pages 1338-1339. Cf. Roth v. United States, 354 U.S. 476, 482-485 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 .
The language relied upon appears in immediate conjunction with “mutiny, treason, sabotage.” I am not willing to hold that in this context Congress provided that a veteran receiving disability benefits could not criticize the Government’s participation in a war. The grant by Congress of disability compensation to a veteran is not to be construed as an attempt by Congress to withdraw a veteran’s First Amendment rights. The Administrator, not Congress, has applied the language to speech and writings, unaccompanied by direct assistance or criminal conduct. Of course the Administrator has done this in the belief Congress has authorized it. But I think this belief is a mistaken one. For under the decisions of the Supreme Court I cannot ascribe to Congress a deliberate penalization of the spoken or written word in the absence of much clearer language to show a purpose to do so. The language here used not only does not mention speech or press but is so general as to the type of conduct intended to be covered that serious doubts arise not only under the First Amendment but under the Due Process Clause.
The contrary view would permit a forfeiture because of some indirect or remote assistance to an enemy thought by the Administrator, rather than specified by Congress, to arise from critical speech or writings. A forfeiture might occur should a veteran step over a line so vaguely drawn as to be indiscernible. As the Supreme Court in another connection recently stated, in Greene v. McElroy, 360 U.S. 474, 507 , 79 S.Ct. 1400, 1419 , 3 L.Ed.2d 1377 :
“ * * * explicit action, especially in areas of doubtful constitutionality, requires careful and pur *316 poseful consideration by those responsible for enacting and implementing our laws. Without explicit action by- lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.”
The subsequent history of the provision fortifies me in the view that the language is not applicable to speech or writing unaccompanied by more direct assistance to an enemy. The Administrator himself played a commendable part in this history by his communications to those Members of Congress, Senator Harry F. Byrd of Virginia, and Representative Olin E. Teague of Texas, who were in charge of amendments to the statute. The amendments enacted in 1959 have the effect, prospectively, in the case of a veteran who, like plaintiff, is a resident of or domiciled in a State when the acts relied upon for forfeiture occur, of permitting forfeiture only upon conviction of specified crimes. 38 U.S.C. §§ 3503 (d), 3505 (Supp. I, 1959); H.R. Rep. No. 420, 86th Cong. 1st Sess. (1959); S. Rep. No. 664, 86th Cong. 1st Sess. (1959).
For the reasons set forth in the opinion of our Court of Appeals in Wellman v. Whittier, supra, I think the court has jurisdiction to review the administrative action in this case; and for the reasons above indicated I think the veteran is entitled to a judgment declaring the forfeiture of his service-connected disability benefits, on the grounds assigned by the Administrator, to have been unauthorized by Congress, and, therefore, invalid.
I have given my views on the merits because the three-judge court has taken jurisdiction, but under Flemming v. Nestor, supra, it appears the case is one for decision by a single District Judge.
. “To deny an exemption [there a tax exemption to veterans] to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mxstaken. in their argument that, because a tax exemption is a ‘privilege’ or ‘bounty,’ its denial may not infringe speech * * *_»
Speiser v. Randall, supra, 357 U.S. at page 518 , 78 S.Ct. at page 1338 .