Williamson v. United States

• Decision Date: 25 September 1950
• Citation: 184 F.2d 280
• Parties: WILLIAMSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

184 F.2d 280 (1950)

WILLIAMSON et al. v. UNITED STATES.

United States Court of Appeals Second Circuit.

September 25, 1950.

Mr. Justice JACKSON, as Circuit Justice for the Second Circuit:

These Communist Party leaders were convicted for conspiring to advocate and teach the violent overthrow of the United States Government and to organize the Communist Party for that purpose.¹ They were not charged with any attempt or with any overt act toward that end other than those incident to such organization and teaching.

Defendants appealed and, after denial of bail by the trial court, applied to the Court of Appeals for its allowance. Government counsel conceded that the appeal presented a substantial question and upon that concession defendants were enlarged upon bond.²

After the Court of Appeals affirmed the convictions,³ defendants expressed an intention to petition the Supreme Court to review their cases. The prosecution asked that bail be revoked and defendants remanded to jail. Two grounds were advanced: first, that no substantial question as to the validity of the conviction survived the affirmance, and second, that defendants, while at large, have pursued and will continue to pursue a course of conduct and activity dangerous to the public welfare, safety and national security of the United States. The Court of Appeals did not summarily terminate bail but a majority of the judges extended it for thirty days, expressly to enable application to the Circuit Justice for further extension. Chief Judge Hand, who had written the principal opinion affirming the convictions, said he regarded the case as "involving substantial questions and therefore entitling the defendants to remain on bail pending certiorari."

To remain at large, under bond, after conviction and until the courts complete the process of settling substantial questions which underlie the determination of guilt cannot be demanded as a matter of right. It rests in sound judicial discretion.⁴ Only in a rare case will I override a clear and direct decision by the Court of Appeals that bail ought to be granted or denied. But here one judge favored its allowance, and the action of his two associates in granting a thirty-day extension implied the continuing power to grant bail, which is dependent on persistence of a substantial question and indicated that they did not regard the defendants as presenting a very immediate public danger.⁵

I cannot accept the Government's first contention that no substantial quesion survives for Supreme Court review. If, as the prosecution conceded, the convictions once were clouded by a substantial constitutional question, it has not completely disappeared, even though the Court of Appeals has now given its own carefully considered answer. An intermediate court, however respected its members or persuasive its opinion, makes no final answer or at least no answer of uniform authority throughout the United States to a constitutional issue. Certainly had the Court of Appeals reached a contrary conclusion, the Government would not have accepted it as final. It is one thing to maintain that the Court of Appeals has given the right answer to a substantial question, but it is another thing to contend that there is no question which merits answer by the only Court invested with ultimate and nation-wide authority in the matter. I regard the case as one in which substantial questions are open to review by the Supreme Court, and in which I am therefore empowered to grant bail, as ordinarily would be done.

The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail.⁶ Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes.⁷ Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted.

Turning then to past, but postconviction, activities said to be dangerous, I find them to consist entirely of making speeches and writing articles or editorials, chiefly for the Communist Party organ the Daily Worker. They do not contain any advocacy of violent overthrow of the Government and can only be said to be inciting, as all opposition speaking or writing that undermines confidence and increases discontent may be said to be incitement. These, however, are severely critical of the policy of the United States toward Korea and favorable to the Soviet position. Some are crudely intemperate, contain falsehoods obvious to the informed, and all are plainly designed to embroil different elements of our society and embarrass those who are presently conducting the Government. But the very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.

It is not contended that these utterances, in themselves, are criminal.⁸ The Communist Party has not been outlawed either by legislation, nor by these convictions, and its right to publish the Daily Worker is not questioned. Nor were defendants indicted under that part of the statute which prohibits publication of matter intended to cause overthrow and destruction of government. Since the paper may lawfully be issued, certainly its publishers or contributors may comment critically on the Government's conduct of foreign affairs. If the Government cannot get at these utterances by direct prosecution, it is hard to see how courts can justifiably reach and stop them by indirection. I think courts should not utilize their discretionary powers to coerce men to forego conduct as to which the Bill of Rights leaves them free. Indirect punishment of free press or free speech is as evil as direct punishment of it. Judge Cardozo wisely warned of "the tendency of a principle to expand itself to the limit of its logic."⁹ If the courts embark upon the practice of granting or withholding discretionary privileges or procedural advantages because of expressions or attitudes of a political nature, it is not difficult to see that within the limits of its logic the precedent could be carried to extremities to suppress or disadvantage political opposition which I am sure the Department itself would deplore.

It is said, however, that freedoms of speech or press cannot be invoked by defendants because their speeches and publications constitute a repetition of their offenses and a continuation of the conspiracy of which they have been convicted. If all that convicted these defendants was such utterances as have followed their conviction, there would indeed be doubt about its validity, for I am unable to find in them any word of advocacy of violence either to overthrow the Government or of forcible resistance to its policy. If that inference can be drawn from these utterances, it can equally well be drawn from...