John Marshall Harlan
June 17, 1957
… II. Instructions to the Jury.
Petitioners contend that the instructions to the jury were fatally defective in that the trial court refused to charge that, in order to convict, the jury must find that the advocacy which the defendants conspired to promote was of a kind calculated to “incite” persons to action for the forcible overthrow of the Government. It is argued that advocacy of forcible overthrow as mere abstract doctrine is within the free speech protection of the First [354 U.S. 298, 313] Amendment; that the Smith Act, consistently with that constitutional provision, must be taken as proscribing only the sort of advocacy which incites to illegal action; and that the trial court’s charge, by permitting conviction for mere advocacy, unrelated to its tendency to produce forcible action, resulted in an unconstitutional application of the Smith Act. The Government, which at the trial also requested the court to charge in terms of “incitement,” now takes the position, however, that the true constitutional dividing line is not between inciting and abstract advocacy of forcible overthrow, but rather between advocacy as such, irrespective of its inciting qualities, and the mere discussion or exposition of violent overthrow as an abstract theory.
We print in the margin the pertinent parts of the trial court’s instructions. After telling the jury that it could [354 U.S. 298, 314] not convict the defendants for holding or expressing mere opinions, beliefs, or predictions relating to violent overthrow, the trial court defined the content of the proscribed advocacy or teaching in the following terms, which are crucial here:
“Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government of the United States is not within the issue of the indictment here and can constitute no basis for any finding against the defendants.
“The kind of advocacy and teaching which is charged and upon which your verdict must be [354 U.S. 298, 315] reached is not merely a desirability but a necessity that the Government of the United States be overthrown and destroyed by force and violence and not merely a propriety but a duty to overthrow and destroy the Government of the United States by force and violence.”
There can be no doubt from the record that in so instructing the jury the court regarded as immaterial, and intended to withdraw from the jury’s consideration, any issue as to the character of the advocacy in terms of its capacity to stir listeners to forcible action. Both the petitioners and the Government submitted proposed instructions which would have required the jury to find [354 U.S. 298, 316] that the proscribed advocacy was not of a mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to such action. The trial court rejected these proposed instructions on the ground that any necessity for giving them which may have existed at [354 U.S. 298, 317] the time the Dennis case was tried was removed by this Court’s subsequent decision in that case. The court made it clear in colloquy with counsel that in its view the illegal advocacy was made out simply by showing that what was said dealt with forcible overthrow and that it was uttered with a specific intent to accomplish that purpose, insisting that all such advocacy was punishable [354 U.S. 298, 318] “whether it is language of incitement or not.” The Court of Appeals affirmed on a different theory, as we shall see later on.
We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not.
The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v. Washington, 236 U.S. 273 , and Schenck v. United States, 249 U.S. 47 . This distinction was heavily underscored in Gitlow v. New York, 268 U.S. 652 , in which the statute involved was nearly identical with the one now before us, and where the Court, despite the narrow view there taken of the First Amendment, said:
“The statute does not penalize the utterance or publication of abstract `doctrine’ or academic discussion having no quality of incitement to any concrete action. … It is not the abstract `doctrine’ of overthrowing organized government by unlawful means which is denounced by the statute, but the advocacy of action for the accomplishment of that purpose. … This [Manifesto] … is [in] the language of direct incitement. … That the jury were warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by force, violence and [354 U.S. 298, 319] unlawful means, but action to that end, is clear. … 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.” Id., at 664-669.
We need not, however, decide the issue before us in terms of constitutional compulsion, for our first duty is to construe this statute. In doing so we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked, or that it used the words “advocate” and “teach” in their ordinary dictionary meanings when they had already been construed as terms of art carrying a special and limited connotation. See Willis v. Eastern Trust & Banking Co., supra; Joines v. Patterson, supra; James v. Appel, 192 U.S. 129, 135 . The Gitlow case and the New York Criminal Anarchy Act there involved, which furnished the prototype for the Smith Act, were both known and adverted to by Congress in the course of the legislative proceedings. Cf. Carolene Products Co. v. United States, supra. The legislative history of the Smith Act and related bills shows beyond all question that Congress was aware of the distinction between the advocacy or teaching of abstract doctrine and the advocacy or teaching of action, and that it did not intend to disregard it. The statute was aimed [354 U.S. 298, 320] at the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action.
The Government’s reliance on this Court’s decision in Dennis is misplaced. The jury instructions which were refused here were given there, and were referred to by this Court as requiring “the jury to find the facts essential to establish the substantive crime.” 341 U.S., at 512 (emphasis added). It is true that at one point in the late Chief Justice’s opinion it is stated that the Smith Act “is directed at advocacy, not discussion,” id., at 502, but it is clear that the reference was to advocacy of action, not ideas, for in the very next sentence the opinion emphasizes that the jury was properly instructed that there could be no conviction for “advocacy in the realm of ideas.” The two concurring opinions in that case likewise emphasize the distinction with which we are concerned. Id., at 518, 534, 536, 545, 546, 547, 571, 572.
In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. It seems to have considered that, since “inciting” speech is usually thought of as something calculated to induce immediate action, and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy, irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a specific intent to accomplish overthrow. In other words, the District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action. [354 U.S. 298, 321]
This misconceives the situation confronting the Court in Dennis and what was held there. Although the jury’s verdict, interpreted in light of the trial court’s instructions, did not justify the conclusion that the defendants’ advocacy was directed at, or created any danger of, immediate overthrow, it did establish that the advocacy was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time. In such circumstances, said Chief Justice Vinson, the Government need not hold its hand “until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.” 341 U.S., at 509 . The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to “action for the accomplishment” of forcible overthrow, to violence as “a rule-or principle of action,” and employing “language of incitement,” id., at 511-512, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. This is quite a different thing from the view of the District Court here that mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded [354 U.S. 298, 322] as the kind of indoctrination preparatory to action which was condemned in Dennis. As one of the concurring opinions in Dennis put it: “Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken.” Id., at 545. There is nothing in Dennis which makes that historic distinction obsolete.
The Court of Appeals took a different view from that of the District Court. While seemingly recognizing that the proscribed advocacy must be associated in some way with action, and that the instructions given the jury here fell short in that respect, it considered that the instructions which the trial court refused were unnecessary in this instance because establishment of the conspiracy, here charged under the general conspiracy statute, required proof of an overt act, whereas in Dennis, where the conspiracy was charged under the Smith Act, no overt act was required. In other words, the Court of Appeals thought that the requirement of proving an overt act was an adequate substitute for the linking of the advocacy to action which would otherwise have been necessary. This, of course, is a mistaken notion, for the [354 U.S. 298, 323] overt act will not necessarily evidence the character of the advocacy engaged in, nor, indeed, is an agreement to advocate forcible overthrow itself an unlawful conspiracy if it does not call for advocacy of action. The statement in Dennis that “it is the existence of the conspiracy which creates the danger,” 341 U.S., at 511 , does not support the Court of Appeals. Bearing in mind that Dennis, like all other Smith Act conspiracy cases thus far, including this one, involved advocacy which had already taken place, and not advocacy still to occur, it is clear that in context the phrase just quoted referred to more than the basic agreement to advocate. “The mere fact that [during the indictment period] petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that [354 U.S. 298, 324] the time had come for action, coupled with … world conditions, … 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. … If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.” 341 U.S., at 510 -511 (emphasis supplied). The reference of the term “conspiracy,” in context, was to an agreement to accomplish overthrow at some future time, implicit in the jury’s findings under the instructions given, rather than to an agreement to speak. Dennis was thus not concerned with a conspiracy to engage at some future time in seditious advocacy, but rather with a conspiracy to advocate presently the taking of forcible action in the future. It was action, not advocacy, that was to be postponed until “circumstances” would “permit.” We intimate no views as to whether a conspiracy to engage in advocacy in the future, where speech would thus be separated from action by one further remove, is punishable under the Smith Act.
We think, thus, that both of the lower courts here misconceived Dennis.
In light of the foregoing we are unable to regard the District Court’s charge upon this aspect of the case as adequate. The jury was never told that the Smith Act does not denounce advocacy in the sense of preaching abstractly the forcible overthrow of the Government. We think that the trial court’s statement that the proscribed advocacy must include the “urging,” “necessity,” and “duty” of forcible overthrow, and not merely its “desirability” and “propriety,” may not be regarded as a sufficient substitute for charging that the Smith Act reaches only advocacy of action for the overthrow of government by force and violence. The essential distinction [354 U.S. 298, 325] is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something. At best the expressions used by the trial court were equivocal, since in the absence of any instructions differentiating advocacy of abstract doctrine from advocacy of action, they were as consistent with the former as they were with the latter. Nor do we regard their ambiguity as lessened by what the trial court had to say as to the right of the defendants to announce their beliefs as to the inevitability of violent revolution, or to advocate other unpopular opinions. Especially when it is unmistakable that the court did not consider the urging of action for forcible overthrow as being a necessary element of the proscribed advocacy, but rather considered the crucial question to be whether the advocacy was uttered with a specific intent to accomplish such overthrow, we would not be warranted in assuming that the jury drew from these instructions more than the court itself intended them to convey.
Nor can we accept the Government’s argument that the District Court was justified in not charging more than it did because the refused instructions proposed by both sides specified that the advocacy must be of a character reasonably calculated to “incite” to forcible overthrow, a term which, it is now argued, might have conveyed to the jury an implication that the advocacy must be of immediate action. Granting that some qualification of the proposed instructions would have been permissible to dispel such an implication, and that it was not necessary even that the trial court should have employed the particular term “incite,” it was nevertheless incumbent on the court to make clear in some fashion that the advocacy must be of action and not merely abstract doctrine. The instructions given not only do not employ the word [354 U.S. 298, 326] “incite,” but also avoid the use of such terms and phrases as “action,” “call for action,” “as a rule or principle of action,” and so on, all of which were offered in one form or another by both the petitioners and the Government.
What we find lacking in the instructions here is illustrated by contrasting them with the instructions given to the Dennis jury, upon which this Court’s sustaining of the convictions in that case was bottomed. There the trial court charged:
“In further construction and interpretation of the statute [the Smith Act] I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired … to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow … as speedily as circumstances would permit.” (Emphasis added.) 9 F. R. D. 367, 391; and see 341 U.S., at 511 -512.
We recognize that distinctions between advocacy or teaching of abstract doctrines, with evil intent, and that which is directed to stirring people to action, are often subtle and difficult to grasp, for in a broad sense, as Mr. Justice Holmes said in his dissenting opinion in Gitlow, [354 U.S. 298, 327] supra, 268 U.S., at 673 : “Every idea is an incitement.” But the very subtlety of these distinctions required the most clear and explicit instructions with reference to them, for they concerned an issue which went to the very heart of the charges against these petitioners. The need for precise and understandable instructions on this issue is further emphasized by the equivocal character of the evidence in this record, with which we deal in Part III of this opinion. Instances of speech that could be considered to amount to “advocacy of action” are so few and far between as to be almost completely overshadowed by the hundreds of instances in the record in which overthrow, if mentioned at all, occurs in the course of doctrinal disputation so remote from action as to be almost wholly lacking in probative value. Vague references to “revolutionary” or “militant” action of an unspecified character, which are found in the evidence, might in addition be given too great weight by the jury in the absence of more precise instructions. Particularly in light of this record, we must regard the trial court’s charge in this respect as furnishing wholly inadequate guidance to the jury on this central point in the case. We cannot allow a conviction to stand on such “an equivocal direction to the jury on a basic issue.” Bollenbach v. United States, 326 U.S. 607, 613 . …
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