Scales v. United States (367 U.S. 203)/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

When we allow petitioner to be sentenced to prison for six years for being a 'member' of the Communist Party, we make a sharp break with traditional concepts of First Amendment rights and make serious Mark Twain's lighthearted comment that 'It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them.'

Even the Alien and Sedition Laws-shameful reminders of an early chapter in intolerance-never went so far as we go today. They were aimed at conspiracy and advocacy of insurrection and at the publication of 'false, scandalous and malicious' writing against the Government, 1 Stat. 596. The Government then sought control over the press 'in order to strike at one of the chief sources of disaffection and sedition.' Miller, Crisis in Freedom (1951), p. 56. There is here no charge of conspiracy, no charge of any overt act to overthrow the Government by force and violence, no charge of any other criminal act. The charge is being a 'member' of the Communist Party, 'well-knowing' that it advocated the overthrow of the Government by force and violence, 'said defendant intending to bring about such overthrow by force and violence as speedily as circumstances would permit.' That falls far short of a charge of conspiracy. Conspiracy rests not in intention alone but in an agreement with one or more others to promote an unlawful project. United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 206, 85 L.Ed. 128; Direct Sales Co. v. United States, 319 U.S. 703, 713, 63 S.Ct. 1265, 1270, 87 L.Ed. 1674. No charge of any kind or sort of agreement hitherto embraced in the concept of a conspiracy is made here.

We legalize today guit by association, sending a man to prison when he committed no unlawful act. Today's break with tradition is a serious one. It borrows from the totalitarian philosophy. As stated by O'Brian, National Security and Individual Freedom (1955), pp. 27-28:

'The Smith Act of 1940 made it unlawful for any person to be     or to become a member of or affiliate with any society,      group, or assembly which teaches, advocates, or encourages the overthrow or destruction of any      government in the United States by force or violence. These     statutes (the Smith Act together with a 1920 amendment to the      Immigration Law, Act of June 5, 1920, 41 Stat. 1008, 8      U.S.C.A. §§ 1101, 1182), therefore, imported into our law the      alien doctrine of guilt by association, which up to this time      had been regarded as abhorrent and which had never been      recognized either by the courts or by the Department of      Justice, even during the perils and excitements of the First      World War.'

The case is not saved by showing that petitioner was an active member. None of the activity constitutes a crime. The record contains evidence that Scales was the Chairman of the North and South Carolina Districts of the Communist Party. He recruited new members into the Party, and promoted the advanced education of selected young Party members in the theory of communism to be undertaken at secret schools. He was a director of one such school. He explained the principles of the Party to an FBI agent who posed as someone interested in joining the Party, and furnished him literature, including articles which criticized in vivid language the American 'aggression' in Korea and describe American 'atrocities' committed on Korean citizens. He once remarked that the Party was setting up underground means of communication, and in 1951 he himself 'went underground.' At the school of which Scales was director, students were told (by someone else) that one of the Party's weaknesses was in failing to place people in key industrial positions. One witness told of a meeting arranged by Scales at which the staff of the school urged him to remain in his position in an industrial plant rather than return to college. In Scales' presence, students at the school were once shown how to kill a person with a pencil, a device which, it was said, might come in handy on a picket line. Other evidence showed Scales to have made several statements or distributed literature containing implicating passages. Among them were comments to the effect that the Party line was that the Negroes in the South and the working classes should be used to foment a violent revolution; that a Communist government could not be voted into power in this country because the Government controlled communication media, newspapers, the military, and the educational systems, and that force was the only way to achieve the revolution; that if a depression were to come the Communist America would be closer at hand than predicted by William Z. Foster; that the revolution would come within a generation; that it would be easier in the United States than in Russia to effectuate the revolution because of assistance and advice from Russian Communists. Petitioner at different times said or distributed literature which said that the goals of communism could only be achieved by violent revolution that would have to start internally with the working classes.

Not one single illegal act is charged to petitioner. That is why the essence of the crime covered by the indictment is merely belief -belief in the proletarian revolution, belief in Communist creed.

Spinoza summed up in a sentence much of the history of the struggle of man to think and speak what he believes:

'Laws which decree what every one must believe, and forbid utterance against this or that opinion, have too often been enacted to confirm of enlarge the power of those who dared not suffer free inquiry to be made, and have by a perversion of authority turned the superstition of the mob into violence against opponents.' Tractatus Theologico-Politicus (London 1862) p. 349.

'The thought of man shall not be tried, for the devil himself knoweth not the thought of man,' said Chief Justice Brian in Y. B. Pasch, 17 Edw. IV, f. 2, pl. 2. The crime of belief-presently prosecuted-is a carryback to the old law of treason where men were punished for compassing the death of the King. That law, which had been employed for 'suppression of political opposition or the expression of ideas or beliefs distasteful to those in power,' Hurst, Historic Background of the Treason Clause, 6 Fed.B.J. 305, 307, was rejected here, and the treason clause of our Constitution was 'most praised for the reason that it prevented the use of treason trials as an instrument of political faction.' Id., 307. Sedition or treason in the realm of politics and heresy in the eccelesiastical field ha long centered on beliefs as the abhorrent criminal act. The struggle on this side of the Atlantic was to get rid of that concept and to punish men not for what they thought but for overt acts against the peace of the Nation. Cramer v. United States, 325 U.S. 1, 28-30, 65 S.Ct. 918, 931-933, 69 L.Ed. 1441. Montesquieu, who was a force in the thinking of those times (id., 15, n. 21), proclaimed against punishing thoughts or words:

'There was a law passed in England under Henry VIII, by which     whoever predicted the king's death was declared guilty of high treason. This law was extremely     vague; the terror of despotic power is so great that it      recoils upon those who exercise it. In the king's last     illness, the physicians would not venture to say he was in      danger; and surely they acted very right. * *  * Marsyas      dreamed that he had cut Dionysius's throat. Dionysius put him     to death, pretending that he would never have dreamed of such      a thing by night if he had not thought of it by day. This was     a most tyrannical action: for though it had been the subject      of his thoughts, yet he had made no attempt towards it. The     laws do not take upon them to punish any other than overt      acts.' The Spirit of Laws (1949), Vol. 1, pp. 192-193.

'Words do not constitute an overt act; they remain only in     idea.' Id., 193.

These were the notions that led to the restrictive definition of treason, presently contained in Art. III, § 3, of the Constitution, which requires overt acts. Cramer v. United States, supra; Haupt v. United States, 330 U.S. 631, 645, 67 S.Ct. 874, 880, 91 L.Ed. 1145 (concurring opinion); Hurst, Treason in the United States, 58 Harv.L.Rev. 395. Our long and painful experience with the law of treason, wholly apart from the First Amendment, should be enough warning that we as a free people should not venture again into the field of prosecuting beliefs.

That was the philosophy behind West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628:

'We can have intellectual individualism and the rich cultural     diversities that we owe to exceptional minds only at the      price of occasional eccentricity and abnormal attitudes. When     they are so harmless to others or to the State as those we      deal with here, the price is not too great. But freedom to     differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance     is the right to differ as to things that touch the heart of      the existing order.

'If there is any fixed star in our constitutional     constellation, it is that no official, high or petty, can      prescribe what shall be orthodox in politics, nationalism,      religion, or other matters of opinion or force citizens to      confess by word or act their faith therein. If there are any     circumstances which permit an exception, they do not now      occur to us.'

Nothing but beliefs is on trial in this case. They are unpopular and to most of us revolting. But they are nonetheless ideas or dogmas or faiths within the broad framework of the First Amendment. See Barenblatt v. United States, 360 U.S. 109, 145-152, 79 S.Ct. 1081, 1102-1106, 3 L.Ed.2d 1115 (dissent). The creed truer to our faith was stated by the Bar Committee headed by Charles E. Hughes which in 1920 protested the refusal of the New York Assembly to seat five members of the Socialist Party:

' * *  * it is of the essence of the institutions of liberty      that it be recognized that guilt is personal and cannot be      attributed to the holding of opinion or to mere intent in the      absence of overt acts *  *  * .'

Belief in the principle of revolution is deep in our traditions. The Declaration of Independence proclaims it:

'whenever any Form of Government becomes destructive of these     Ends, it is the Right of the People to alter or to abolish it, and to institute new Government,      laying its Foundation on such Principles, and organizing its      Powers in such Form, as to them shall seem most likely to      effect their Safety and Happiness.'

This right of revolution has been and is a part of the fabric of our institutions. Last century when Russia invaded Hungary and subdued her, Louis Kossuth came here to enlist American support. On January 8, 1852, Lincoln spoke in sympathy of the Hungarian cause and was a member of a committee which on January 9, 1852, submitted Resolutions in Behalf of Hungarian Freedom. Among these resolutions was one that read:

'That it is the right of any people, sufficiently numerous     for national independence, to throw off, to revolutionize,      their existing form of government, and to establish such      other in its stead as they may choose.' Basler, Vol. II, The      Collected Works of Abraham Lincoln (1953), p. 115.

On January 12, 1848, Lincoln in an address before the United States House of Representatives stated: 'Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,-a most sacred right-a right, which we hope and believe, is to liberate the world.' Id., Vol. I, p. 438.

Of course, government can move against those who take up arms against it. Of course, the constituted authority has the right of self-preservation. But we deal in this prosecution of Scales only with the legality of ideas and beliefs, not with overt acts. The Court speaks of the prevention of 'dangerous behavior' by punishing those 'who work to bring about that behavior.' That formula returns man to the dark days when government determined what behavior was 'dangerous' and then policed the dissidents for tell-tale signs of advocacy. What is 'dangerous behavior' that must be suppressed in its talk-stage has had a vivid history even on this continent. The British colonial philosophy was summed up by Sir William Berkeley, who served from 1641 to 1677 as Virginia's Governor: ' * *  * I think God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!' 2 Hening's Stat.Va. 1660 1682, p. 517. The history is familiar; much of it is reviewed in Chafee, The Blessings of Liberty (1956). He states in one paragraph what I think is the Jeffersonian conception of the First Amendment rights involved in the present case:

'We must choose between freedom and fear-we cannot have both. If the citizens of the United States persist in being afraid,     the real rulers of this country will be fanatics fired with a      zeal to save grown men from objectionable ideas by putting      them under the care of official nursemaids.' Id., 156.

In recent years we have been departing, I think, from the theory of government expressed in the First Amendment. We have too often been 'balancing' the right o speech and association against other values in society to see if we, the judges, feel that a particular need is more important than those guaranteed by the Bill of Rights. Dennis v. United States, 341 U.S. 494, 508-509, 71 S.Ct. 857, 866-867, 95 L.Ed. 1137; American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 399 400, 70 S.Ct. 674, 684-685, 94 L.Ed. 928; N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 463-466, 78 S.Ct. 1163, 1172-1174, 2 L.Ed.2d 1488; Uphaus v. Wyman, 360 U.S. 72, 78-79, 79 S.Ct. 1040, 1045, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 126-134, 79 S.Ct. 1081, 1092-1097, 3 L.Ed.2d 1115; Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653; Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. This approach, which treats the commands of the First Amendment as 'no more than admonitions of moderation' (see Hand, The Spirit of Liberty (1960 ed.), p. 278), runs counter to our prior decisions. See Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628.

It also runs counter to Madison's views of the First Amendment as we are advised by his eminent biographer, Irving Brant:

'When Madison wrote, 'Congress shall make no law' infringing     these rights, he did not expect the Supreme Court to decide,      on balance, whether Congress could or could not make a law      infringing them. It was true, he observed in presenting his     proposals, that state legislative bodies had violated many of      the most valuable articles in bills of rights. But that     furnished no basis for judging the effectiveness of the      proposed amendments:

"If they are incorporated into the Constitution, independent     tribunals of justice will consider themselves in a peculiar      manner the guardians of those rights; they will be an      impenetrable bulwark against every assumption of power in the      Legislative or Executive; they will be naturally led to resist every      encroachment upon rights expressly stipulated for in the      Constitution by the declaration of rights.'

'This statement by Madison, along with all the rest of his     speech, is so devastating to the 'balance theory' that      efforts have been and are being made to discredit its      authenticity. The Annals of Congress, it is said, is not an     official document, but a compilation of stenographic reports      (by a shorthand reporter admitted to the floor for that      purpose) published in the press and containing numerous      errors. That is true, although the chief complaint was that     partially caught sentences were meaningless. In general, that     which was clearly reported was truly reported. In the case of     this all-important speech, Madison spoke from notes, and the      notes in his handwriting are in the Library of Congress. They     parallel the speech from end to end, scantily, but leaving no      doubt of the fundamental faithfulness of the report.' The      Madison Heritage, 35 N.Y.U.L.Rev. 882, 899-900.

Brant goes on to relate how Madison opposed a resolution of censure against societies creating the political turmoil that was behind the Whiskey Rebellion. Id., p. 900. He expressed in the House the view that opinions are not objects of legislation. 'If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.' Id., p. 900.

The trend of history, as Jefferson noted, has been against the rights of man. He wrote that 'The natural progress of things is for liberty to yield and government to gain ground.' The formula he prepared for a society where ideas flourished was not punishment of the unorthodox but education and enlightenment of the masses. Jefferson wrote to Madison on December 20, 1787:

'I own, I am not a friend to a very energetic government. It     is always oppressive. It places the governors indeed more at     their ease, at the expense of the people. The late rebellion     in Massachusetts has given more alarm, than I think it should      have done. Calculate that one rebellion in thirteen States in     the course of eleven years, is but one for each State in a      century and a half. No country should be so long without one. Nor will any degree of power in the hands of government,     prevent insurrections. In England, where the hand of power is     heavier than with us, there are seldom half a dozen years      without an insurrection. In France, where it is still     heavier, but less despotic, as Montesquieu supposes, than in      some other countries, and where there are always two or three      hundred thousand men ready to crush insurrections, there have      been three in the course of the three years I have been here,      in every one of which greater numbers were engaged than in      Massachusetts, and a great deal more blood was spilt. In     Turkey, where the sole nod of the despot is death,      insurrections are the events of every day. Compare again the     ferocious depredations of their insurgents, with the order,      the moderation and the almost self-extinguishment of ours. And say, finally, whether peace is best preserved by giving     energy to the government, or information to the people. This     last is the most certain, and the most legitimate engine of      government. Educate and inform the whole mass of the people. Enable them to see that it is their interest to preserve peace and order, and they will preserve     them. And it requires no very high degree of education to     convince them of this. They are the only sure reliance for     the preservation of our liberty.'

This is the only philosophy consistent with the First Amendment. When belief in an idea is punished as it is today, we sacrifice those ideals and substitute an alien, totalitarian philosophy in their stead.

'The most indifferent arguments,' Bismarck said, 'are good when one has a majority of bayonets.' That is also true when one has the votes.

What we lose by majority vote today may be reclaimed at a future time when the fear of advocacy, dissent, and nonconformity no longer cast a shadow over us.

Appendix to Opinion of Mr. Justice DOUGLAS.

The constitutions of 15 States have, at one time or another, made specific provision for the right of revolution by reserving to the people the right to 'alter, reform or abolish' the existing frame of government. See Pennsylvania Const. of 1873, Art. I, § 2, P.S.Const.; Maryland Const. of 1867, Dec. of Rights, Art. I; Virginia Const. of 1902, Art. I, § 3; Alabama Const. of 1865, Art. I, § 2; Arkansas Const. of 1874, Art. II, § 1; Idaho Const. of 1889, Art. I, § 2; Kansas Const. of 1958, Art. I, § 2; Kentucky Const. of 1890, Bill of Rights, § 4; Ohio Const. of 1851, Art. I, § 2; Oregon Const. of 1857, Art. I, § 1; Tennessee Const. of 1870, Art. I, § 1; Texas Const. of 1876, Art. I, § 2, Vernon's Ann.St.; Vermont Const. of 1793, c. 1, Art. 7; West Virginia Const. of 1872, Art. 3, § 3; Wyoming Const. of 1889, Art. I, § 1. Some 24 other States have, or have had, slightly varying forms of the same provision. See New Hampshire Const., Pt. I, Art. 10; Massachusetts Const., M.G.L.A.; Part the First, Article VII; Connecticut Const., Article First, § 2, C.G.S.A.; New Jersey Const., Art. I, 2, N.J.S.A.; Delaware Const., Preamble, Del.C.Ann.; North Carolina Const., Art. I, § 3; South Carolina Const., Art. 1, § 1; Rhode Island Const., Art. I, § 1; California Const., Art. I, § 2, West's Ann.Cal.Const.; Colorado Const., Art. II, § 2; Florida Const., Dec. of Rights, § 2, F.S.A.; Indiana Const., Art. I, § 1; Iowa Const., Art. I, § 2 I.C.A.; Maine Const., Art. I, § 2; Michigan Const. of 1835, Art. I, § 2; Minnesota Const., Art. I, § 1, M.S.A.; Mississippi Const., Art. 3, § 6; Missouri Const., Art. I, § 3, V.A.M.S.; Montana Const., Art. III, § 2; Nevada Const., Art. I, § 2; North Dakota Const., Art. I, § 2; Oklahoma Const., Art. II, § 1, O.S.A.; South Dakota Const., Art. VI, § 26; Utah Const., Art. I, § 2. The older constitutions often add a clause which shows the roots of these provisions in the right of revolution. 'The doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind,' the New Hampshire Const., Pt. I, Art. 10, recites. The same language may be found in Maryland Const., Dec. of Rights, Art. 6; Tennessee Const., Art. I, § 2.

These provisions have been considered by several state courts. It has been held that the general right of the people to alter or abolish the government does not deprive state courts from passing on the validity of constitutional amendments peacefully passed. Wells v. Bain, 75 Pa. 39, 46-49; Koehler & Lange v. Hill, 60 Iowa 543, 614-617, 14 N.W. 738,1 5 N.W. 609, 614-616; Bennett v. Jackson, 186 Ind. 533, 538-541, 116 N.E. 921, 922-923; Erwin v. Nolan, 280 Mo. 401, 406-407, 217 S.W. 837, 838-839. More recently, several state courts have had occasion to consider these provisions in connection with the persecution of Communists. See Commonwealth v. Widovich, 295 Pa. 311, 317-318, 145 A. 295, 297 298 (State Sedition Act); Nelson v. Wyman, 99 N.H. 33, 50-51, 105 A.2d 756, 770-771 (legislative investigation); Braverman v. Bar Ass'n of Baltimore, 209 Md. 328, 346-347, 121 A.2d 473, 481 482 (disbarment of a lawyer convicted under the Smith Act). The last two of these decisions relied on language in the decision of this Court in Deennis v. United States, 341 U.S. 494, 501, 71 S.Ct. 857, 863, 95 L.Ed. 1137: 'Whatever theoretical merit there may be to the argument that there is a 'right' to revellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.'

Yet the right of revolution has always meant more than this. 'The words * *  * ,' said the court in Wells v. Bain, supra, 75 Pa. 47, 'embrace but three known recognised modes by which the whole people, the state, can give their consent to an alteration of an existing lawful frame of government, viz.:

'1. The mode provided in the existing constitution.

'2. A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people.

'3. A revolution.

'The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the constitution, or by passing a law to call a convention. If consent be not so given by the existing government the remedy of the people is in the third mode-revolution.'

This does not mean the helplessness of the established government in the face of armed resistance, for that government has the duty of maintaining existing institutions. Wells v. Bain, supra, 75 Pa. 49. But it does mean that the right of revolution is ultimately reserved to the people themselves, whatever formal, but useless, remedies the existing government may offer. This is shown in the history of our own revolution. Legislatures and governments have the right to protect themselves. They may judge as to the appropriate means of meeting force directed against them, but as to the propriety of the exercise of the ultimate right of revolution, there, as John Locke says, 'The people shall be judge.' Second Treatise on Civil Government, § 240. To forbid the teaching of the propriety of revolution, even where the teacher believes his own lesson, is to hinder the people in the free exercise of this great sovereign right. See Dennis v. United States, 341 U.S. 494, 581-586, 71 S.Ct. 857, 903-905, 95 L.Ed. 1137 (dissenting opinion).

Lincoln's full statement, made in 1848 and already referred to, reads:

'Any people anywhere, being inclined and having the power,     have the right to rise up, and shake off the existing      government, and form a new one that suits them better. This     is a most valuable,-a most sacred right-a right, which we      hope and believe, is to liberate the world. Nor is this right     confined to cases in which the whole people of an existing      government, may choose to exercise it. Any portion of such     people that can, may revolutionize, and make their own, of so      much of the teritory (sic) as they inhabit. More than this, a     majority of any portion of such people may revolutionize,      putting down a minority, intermingled with, or near about      them, who may oppose their movement. Such minority, was     precisely the case, of the tories of our own revolution. It     is a quality of revolutions not to go by old lines, or old      laws; but to break up both, and make new ones.' I Basler, The      Collected Works of Abraham Lincoln (1953), pp. 438-439.