The opinion of the court was delivered by: KRAFT
The defendant, indicted October 6, 1954 for violation of the membership clause of the Smith Act,
has moved for dismissal of the indictment
upon several grounds.
The first contention made in defendant's brief is that, even if there were no Bill of Rights, Congress lacked power constitutionally to enact the membership clause of the Smith Act. This question was not raised by the reasons assigned in support of the motion to dismiss and consequently might be disregarded. It is deemed desirable, however, to dispose of the contention on its merits.
Defendant concedes that a limited power to pass laws making conduct criminal is granted to the Congress by Article I, Section 8, Clause 18 of the Constitution;
and he does not dispute that the Congress has power to protect the Government of the United States from armed rebellion.
That Congress has power to prohibit acts intended to effect the violent overthrow of the Government is beyond question. In Dennis v. United States, 341 U.S. 494, 501, 71 S. Ct. 857, 863, 95 L. Ed. 1137, Chief Justice Vinson said:
'The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. * * * We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.'
However defendant vigorously maintains that the means by which this power is carried into execution by the membership clause of the Smith Act are not appropriate or plainly adapted to the end of protecting the Government from armed rebellion. Defendant concedes that a conspiracy to organize a group who advocate violent governmental overthrow may constitutionally be made a crime. It would be strange logic, indeed, to hold that an agreement to organize such a group may be made criminal, but that membership in the group organized pursuant to such a conspiracy, with knowledge of its purposes, may not be made a crime.
The Supreme Court said, in Dennis v. United States, supra, 341 U.S. at page 511, 71 S. Ct. at page 868:
'And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. Cf. Pinkerton v. United States, 1946, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489; Goldman v. United States, 1918, 245 U.S. 474, 38 S. Ct. 166, 62 L. Ed. 410; United States v. Rabinowich, 1915, 238 U.S. 78, 35 S. Ct. 682, 59 L. Ed. 1211. If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.'
If the existence of a conspiracy to advocate violent overthrow of the Government creates a danger which may be constitutionally restrained, it is patent that the existence of a group who not only agree to but do advocate such violent overthrow is susceptible of restraint constitutionally imposed. To achieve the legitimate end of restraining any group which advocates forceful overthrow of the Government, a law which makes criminal membership in that group with knowledge of its purposes, is a plainly adapted and appropriate means. See Frankfeld v. United States, 4 Cir., 198 F.2d 679, 683;
Scales v. United States, 4 Cir., 227 F.2d 581.
Defendant next insists that he would be denied the due process of law guaranteed him by the Fifth Amendment by a trial upon this indictment. The language of the statute under which the present indictment is laid is almost identical with that in Section 2(a)(3) of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 Ed.) 10, 11. In Dennis v. United States, supra, the Supreme Court held at page 516 of 341 U.S., at page 871 of 71 S. Ct.:
'We hold that 2(a)(1), 2(a)(3) and 3 of the Smith Act, do not inherently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness.'
This holding appears to be decisive of the question raised by this contention of the defendant, but, since it was not specifically discussed in the Supreme Court's opinion, some brief discussion may be warranted here. The gist of defendant's argument on this point is that 'a person cannot constitutionally be convicted of crime for participation in peaceful advocacy of the Communist Party even if it be assumed that the Party also advocated doctrines of force and violence, and this regardless of what the defendant's knowledge or intent may be.' Reliance is had by defendant upon De Jonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278, Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066 and Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517. These cases afford no support to the defendant's position.
De Jonge v. Oregon, supra (299 U.S. 353, 57 S. Ct. 256), held only that the Oregon statute, Code 1930, 14-3, 112 as amended Laws 1933, c. 459, 3, which made it a crime to 'preside at or conduct or assist in conducting any assemblage of persons, or any organization, or any society, or any group which teaches or advocates the doctrine of criminal syndicalism' was sufficiently broad in scope to reach individuals who, while neither themselves members of the Communist Party nor familiar with its purposes, assisted in the conduct of such a meeting. In such circumstances the court held the statute inherently unconstitutional, noting that 'peaceful assembly for lawful discussion cannot be made a crime.'
That situation is not akin to the present one. The thrust of this statute is against a member of such an organization who is cognizant of its purposes. It is not directed at peaceful assemblages having lawful purposes. Its careful language precludes the possibility that the innocent may be ensnared. The penalties attach only to those who, with full knowledge of the ...