United States v. Dennis

• Citation: 183 F.2d 201
• Decision Date: 01 August 1950
• Docket Number: No. 242,Docket 21538.,242
• Parties: UNITED STATES v. DENNIS et al.
• Court: U.S. Court of Appeals — Second Circuit

183 F.2d 201 (1950)

UNITED STATES v. DENNIS et al.

No. 242, Docket 21538.

United States Court of Appeals Second Circuit.

Argued June 21, 22, 23, 1950.

Decided August 1, 1950.

Writ of Certiorari Granted October 23, 1950.

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George W. Crockett, Jr., Washington, D. C., for appellants Carl Winter and Jacob Stachel.

Benjamin J. Davis, Jr., pro se.

Eugene Dennis, pro se.

Richard Gladstein, San Francisco, Cal., for appellants Robert G. Thompson and Gus Hall.

Abraham J. Isserman, Los Angeles, Cal., for appellants Gilbert Green and John B. Williamson.

Louis F. McCabe, Philadelphia, Pa., for appellant Henry Winston.

Harry Sacher, New York City, for appellants Irving Potash and John Gates.

Irving S. Shapiro, Robert W. Ginnane and Frank H. Gordon, Special Assistants to the Attorney General, for the United States plaintiff-appellee. J. Howard McGrath, Attorney General, Philip B. Perlman, Solicitor General, Washington, D. C., Peyton Ford, Deputy Attorney General, James M. McInerney, Assistant Attorney General, Irving H. Saypol, United States Attorney, New York City, Edward C. Wallace, Special Assistant to the Attorney General, Lawrence K. Bailey and George D. Webster, Attorneys, Department of Justice, Washington, D. C., were with them on the brief.

Osmond K. Fraenkel, New York City (Eastman Birkett, Joseph H. Flom, Osmond K. Fraenkel, Arthur Garfield Hays, all of New York City, of counsel), for American Civil Liberties Union, amici curiae.

Before L. HAND, SWAN and CHASE, Circuit Judges.

Writ of Certiorari Granted October 23, 1950. See 71 S.Ct. 91.

L. HAND, Circuit Judge.

The defendants Dennis and others appeal from a judgment of conviction upon an indictment for violation of Section 3 of the "Smith Act,"¹ that is, for "wilfully and knowingly" conspiring to organize the Communist Party of the United States as a group to "teach and advocate the overthrow and destruction" of the government "by force and violence," and "knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying" the government by "force and violence." All the defendants were at one time or another officials of the Party during the period laid in the indictment — April 1, 1945, to July 20, 1948. The case was tried at great length. The defendants challenged the array, and the trial of that issue extended from January 20, 1949, to March 1, 1949; the trial of the issues began the following week and went on continuously until September 23, 1949. The jury brought in a verdict against all the defendants on October 14, 1949, and they were sentenced on October 21, 1949. The trial of the challenge to the array took 23 days; the government's case on the issues took 40 days, and the appellants, 75 days.

Logically the first issue, and incidentally the most important, is whether the evidence was sufficient to support the jury's verdict that the defendants were guilty of the crime charged in the indictment. There was abundant evidence, if believed, to show that they were all engaged in an extensive concerted action to teach what indeed they do not disavow — the doctrines of Marxism-Leninism. These doctrines were set forth in many pamphlets put in evidence at the trial, the upshot of which is — indeed an honest jury could scarcely have found otherwise — that capitalism inescapably rests upon, and must perpetuate, the oppression of those who do not own the means of production; that to it in time there must and will succeed a "classless" society, which will finally make unnecessary most of the paraphernalia of government; but that there must be an intermediate and transitional period of the "dictatorship, of the proletariat," which can be established only by the violent overthrow of any existing government, if that be capitalistic. No entrenched bourgeoisie, having everything to lose and nothing to gain by the abolition of capitalism, by which alone it can continue to enjoy its privileged position, will ever permit itself to be superseded by the means which it may have itself provided for constitutional change: e. g., by the ballot. No matter how solemnly it may profess its readiness to abide the result, and no matter how honestly and literally the accredited processes of amendment may in fact be followed, it is absurd to expect that a bourgeoisie will yield; and indeed to rely upon such a possibility is to range oneself among the enemies of Marxist-Leninist principles. Therefore the transition period involves the use of "force and violence," temporary it is true, but inescapable; and, although it is impossible to predict when a propitious occasion will arise, one certainly will arise: as, for example, by financial crisis or other internal division. When the time comes the proletariat will find it necessary to establish its "dictatorship" by violence.

The defendants protest against this interpretation of their teaching and advocacy. They say that the use of "force and violence" is no part of their program, except as it may become necessary after the proletariat has succeeded in securing power by constitutional processes. Thereafter, being itself the lawful government, it will of course resist any attempt of the ousted bourgeoisie to regain its position; it will meet force with force as all governments may, and must. If the defendants had in fact so confined their teaching and advocacy, the First Amendment would indubitably protect them, for its protects all utterances, individual or concerted, seeking constitutional changes, however revolutionary, by the processes which the Constitution provides. Any amendment to the Constitution passed in conformity with Article V is as valid as though it had been originally incorporated in it; the only exception being that no state shall be denied "its equal Suffrage in the Senate." It is unnecessary to quote in detail the many passages in the pamphlets and books, published and disseminated by the defendants, which flatly contradict their declarations that they mean to confine the use of "force or violence" to the protection of political power, once lawfully obtained. The prosecution proved this part of its case quite independently of the testimony of its witnesses, though the jury might have relied upon that, had it stood alone. The sufficiency of the evidence therefore comes down to whether it is a crime to form a conspiracy to advocate or teach the duty and necessity of overthrowing the government by violence, and to organize the Communist Party as a group so to teach and to advocate.

This being true, three questions arise: (1) whether the Act is constitutional as the judge construed it, (2) whether his construction was right, and (3) whether the evidence was admissible under the indictment. To the last of these we shall devote no time, for it is patent on the merest inspection that the indictment is sufficient; even had it not been, any variances would have been harmless error. Fed. Rules Crim.Proc. rule 52(a), 18 U.S.C.A. Coming then to the first point, although the interest which the Amendment was designed to protect — especially as regards matters political — does not presuppose that utterances, divergent from current official opinion, are more likely to be true than that opinion, it does presuppose that official opinion may be wrong, and that one way — and perhaps the best way — to correct or supplement it, is complete freedom of criticism and protest. This may convince the officials themselves, and in any event it may rouse up a body of contrary opinion to which they will yield, or which will displace them. Thus, the interest rests upon a skepticism as to all political orthodoxy, upon a belief that there are no impregnable political absolutes, and that a flux of tentative doctrines is preferable to any authoritative creed. It rests upon a premise as yet unproved, and perhaps incompatible with men's impatience of a suspended judgment when the stakes are high. However, it concerns beliefs alone, not actions, except in so far as a change of belief is a condition upon action.

Nobody doubts that, when the leader of a mob already ripe for riot gives the word to start, his utterance is not protected by the Amendment. It is not difficult to deal with such situations; doubt arises only when the utterance is at once an effort to affect the hearers' beliefs and a call upon them to act when they have been convinced. As a new question it might have been held that the Amendment did not protect utterances, when they had this double aspect: i. e., when persuasion and instigation were inseparably confused. In that view the Amendment would give protection to all utterances designed to convince, but its protection would be conditional upon their not being part of, or coupled with, provocation to unlawful conduct, whether that was remote or immediate. True, one does not become an accessory to a crime who "counsels, commands, induces * * * its commission."² unless the crime is committed; but he will be guilty of conspiracy by the mere agreement; and it will not protect him that the objective of the conspiracy is lawful, and only the means contemplated are illegal.³ Had this view of the Amendment been taken, although the utterances of these defendants so far as they attempted to persuade others of the aims of Communism would have been protected, they would have lost that protection, coupled as they were with the advocacy of the unlawful means. And that is probably in fact true of utterances not political or religious; for it is at least doubtful whether other kinds of utterance, however law ful in so far as they were persuasive only, would retain their privilege if coupled with appeals to unlawful means. One can hardly believe that one would be protected in seeking funds for a school, if he suggested that they should be obtained by fraud. His privilege would be conditional upon separating the means from the end....