Rosenfeld Susan. Encyclopedia of American Historical Documents

Подождите немного. Документ загружается.

An Act

To protect the United States against certain un-American

and subversive activities by requiring registration of Com-

munist organizations, and for other purposes.

Be it enacted by the Senate and House of Represen-

tatives of the United States of America in Congress assem-

bled, That this Act may be cited as the “Internal Security

Act of 1950.”

Title I—Subversive Activities Control

Section 1. (a) This title may be cited as the “Subversive

Activities Control Act of 1950.”

(b) Nothing in this Act shall be construed to authorize,

require, or establish military or civilian censorship or in

any way to limit or infringe upon freedom of the press or

of speech as guaranteed by the Constitution of the United

States and no regulation shall be promulgated hereunder

having that effect.

Necessity for Legislation

Sec. 2. As a result of evidence adduced before various

committees of the Senate and House of Representatives,

the Congress hereby finds that—

(1) There exists a world Communist movement which,

in its origins, its development, and its present practice, is

a world-wide revolutionary movement whose purpose it

is, by treachery, deceit, infiltration into other groups (gov-

ernmental and otherwise), espionage, sabotage, terrorism,

and any other means deemed necessary, to establish a

Communist totalitarian dictatorship in the countries

throughout the world through the medium of a world-wide

Communist organization.

(2) The establishment of a totalitarian dictatorship in

any country results in the suppression of all opposition to

the party in power, the subordination of the rights of indi-

viduals to the state, the denial of fundamental rights and

liberties which are characteristic of a representative form

of government, such as freedom of speech, of the press, of

assembly, and of religious worship, and results in the main-

tenance of control over the people through fear, terrorism,

and brutality.

(3) The system of government known as a totalitarian

dictatorship is characterized by the existence of a single

political party, organized on a dictatorial basis, and by sub-

stantial identity between such party and its policies and the

government and governmental policies of the country in

which it exists.

(4) The direction and control of the world Communist

movement is vested in and exercised by the Communist

dictatorship of a foreign country.

(5) The Communist dictatorship of such foreign coun-

try, in exercising such direction and control and in further-

ing the purposes of the world Communist movement,

establishes or causes the establishment of, and utilizes, in

various countries, action organizations which are not free

and independent organizations, but are sections of a

world-wide Communist organization and are controlled,

directed, and subject to the discipline of the Communist

dictatorship of such foreign country.

(6) The Communist action organizations so estab-

lished and utilized in various countries, acting under such

control, direction, and discipline, endeavor to carry out the

objectives of the world Communist movement by bringing

about the overthrow of existing governments by any avail-

able means, including force if necessary, and setting up

Communist totalitarian dictatorships which will be sub-

servient to the most powerful existing Communist totali-

tarian dictatorship. Although such organizations usually

designate themselves as political parties, they are in fact

constituent elements of the world-wide Communist move-

ment and promote the objectives of such movement by

conspiratorial and coercive tactics, instead of through the

democratic processes of a free elective system or through

the freedom-preserving means employed by a political

party which operates as an agency by which people govern

themselves.

(7) In carrying on the activities referred to in para-

graph (6), such Communist organizations in various coun-

tries are organized on a secret, conspiratorial basis and

operate to a substantial extent through organizations, com-

monly known as “Communist fronts,” which in most

instances are created and maintained, or used, in such

manner as to conceal the facts as to their true character

and purposes and their membership. One result of this

method of operation is that such affiliated organizations

are able to obtain financial and other support from persons

who would not extend such support if they knew the true

purposes of, and the actual nature of the control and influ-

ence exerted upon, such “Communist fronts.”

(8) Due to the nature and scope of the world Com-

munist movement, with the existence of affiliated con-

stituent elements working toward common objectives in

various countries of the world, travel of Communist mem-

bers, representatives, and agents from country to country

facilitates communication and is prerequisite for the carry-

ing on of activities to further the purposes of the Commu-

nist movement.

(9) In the United States those individuals who know-

ingly and willfully participate in the world Communist

movement, when they so participate, in effect repudiate

their allegiance to the United States, and in effect transfer

their allegiance to the foreign country in which is vested

the direction and control of the world Communist move-

ment.

(10) In pursuance of communism’s stated objectives,

the most powerful existing Communist dictatorship has, by

the methods referred to above, already caused the estab-

1542 ERA 9: Postwar United States

lishment in numerous foreign countries of Communist

totalitarian dictatorships, and threatens to establish similar

dictatorships in still other countries.

(11) The agents of communism have devised clever

and ruthless espionage and sabotage tactics which are car-

ried out in many instances in form or manner successfully

evasive of existing law.

(12) The Communist network in the United States is

inspired and controlled in large part by foreign agents who

are sent into the United States ostensibly as attaches of for-

eign legations, affiliates of international organizations,

members of trading commissions, and in similar capacities,

but who use their diplomatic or semidiplomatic status as a

shield behind which to engage in activities prejudicial to

the public security.

(13) There are, under our present immigration laws,

numerous aliens who have been found to be deportable,

many of whom are in the subversive, criminal, or immoral

classes who are free to roam the country at will without

supervision or control.

(14) One device for infiltration by Communists is by

procuring naturalization for disloyal aliens who use their

citizenship as a badge for admission into the fabric of our

society.

(15) The Communist movement in the United States

is an organization numbering thousands of adherents,

rigidly and ruthlessly disciplined. Awaiting and seeking to

advance a moment when the United States may be so far

extended by foreign engagements, so far divided in coun-

sel, or so far in industrial or financial straits, that overthrow

of the Government of the United States by force and vio-

lence may seem possible of achievement, it seeks converts

far and wide by an extensive system of schooling and

indoctrination. Such preparations by Communist organiza-

tions in other countries have aided in supplanting existing

governments. The Communist organization in the United

States, pursuing its stated objectives, the recent successes

of Communist methods in other countries, and the nature

and control of the world Communist movement itself, pre-

sent a clear and present danger to the security of the

United States and to the existence of free American insti-

tutions, and make it necessary that Congress, in order to

provide for the common defense, to preserve the

sovereignty of the United States as an independent nation,

and to guarantee to each State a republican form of gov-

ernment, enact appropriate legislation recognizing the

existence of such worldwide conspiracy and designed to

prevent it from accomplishing its purpose in the United

States.

Definitions

Sec. 3. For the purposes of this title—

(1) The term “person” means an individual or an orga-

nization.

* * *

(3) The term “Communist-action organization”

means—

(a) any organization in the United States (other than

a diplomatic representative or mission of a foreign gov-

ernment accredited as such by the Department of State)

which (i) is substantially directed, dominated, or controlled

by the foreign government or foreign organization control-

ling the world Communist movement referred to in section

2 of this title, and (ii) operates primarily to advance the

objectives of such world Communist movement . . . and

(b) any section, branch, fraction, or cell of any organi-

zation defined in subparagraph (a) of this paragraph which

has not complied with the registration requirements of this

title.

(4) The term “Communist-front organization” means

any organization in the United States (other than a Com-

munist-action organization as defined in paragraph (3) of

this section) which (A) is substantially directed, domi-

nated, or controlled by a Communist-action organization,

and (B) is primarily operated for the purpose of giving aid

and support to a Communist-action organization, a Com-

munist foreign government, or the world Communist

movement referred to in section 2 of this title.

(5) The term “Communist organization” means a

Communist-action organization or a Communist-front

organization.

(6) The term “to contribute funds or services” includes

the rendering of any personal service and the making of

any gift, subscription, loan, advance, or deposit, of money

or of anything of value, and also the making of any con-

tract, promise, or agreement to contribute funds or ser-

vices, whether or not legally enforcible.

(7) The term “facility” means any plant, factory or

other manufacturing, producing or service establishment,

airport, airport facility, vessel, pier, water-front facility,

mine, railroad, public utility, laboratory, station, or other

establishment or facility, or any part, division, or depart-

ment of any of the foregoing. The term “defense facility”

means any facility designated and proclaimed by the Sec-

retary of Defense pursuant to section 5(b) of this title and

included on the list published and currently in effect

under such subsection, and which is in compliance with

the provisions of such subsection respecting the posting of

notice of such designation.

(8) The term “publication” means any circular, news-

paper, periodical, pamphlet, book, letter, post card, leaflet,

or other publication.

* * *

(13) The term “advocates” includes advises, recom-

mends, furthers by overt act, and admits belief in; and the

Domestic Policies after World War II 1543

giving, loaning, or promising of support or of money or

anything of value to be used for advocating any doctrine

shall be deemed to constitute the advocating of such doc-

trine.

(14) The term “world communism” means a revolu-

tionary movement, the purpose of which is to establish

eventually a Communist totalitarian dictatorship in any or

all the countries of the world through the medium of an

internationally coordinated Communist movement.

(15) The terms “totalitarian dictatorship” and “totali-

tarianism” mean and refer to systems of government not

representative in fact, characterized by (A) the existence of

a single political party, organized on a dictatorial basis, with

so close an identity between such party and its policies and

the governmental policies of the country in which it exists,

that the party and the government constitute an indistin-

guishable unit, and (B) the forcible suppression of opposi-

tion to such party.

(16) The term “doctrine” includes, but is not limited

to, policies, practices, purposes, aims, or procedures.

(17) The giving, loaning, or promising of support or of

money or any other thing of value for any purpose to any

organization shall be conclusively presumed to constitute

affiliation therewith; but nothing in this paragraph shall be

construed as an exclusive definition of affiliation.

(18) “Advocating the economic, international, and

governmental doctrines of world communism” means

advocating the establishment of a totalitarian Communist

dictatorship in any or all of the countries of the world

through the medium of an internationally coordinated

Communist movement.

(19) “Advocating the economic and governmental

doctrines of any other form of totalitarianism” means advo-

cating the establishment of totalitarianism (other than

world communism) and includes, but is not limited to,

advocating the economic and governmental doctrines of

fascism and nazism.

Certain Prohibited Acts

Sec. 4. (a) It shall be unlawful for any person know-

ingly to combine, conspire, or agree, with any other per-

son to perform any act which would substantially

contribute to the establishment within the United States

of a totalitarian dictatorship, as defined in paragraph (15)

of section 3 of this title, the direction and control of which

is to be vested in, or exercised by or under the domination

or control of, any foreign government, foreign organiza-

tion, or foreign individual: Provided, however, That this

subsection shall not apply to the proposal of a constitu-

tional amendment.

(b) It shall be unlawful for any officer or employee of

the United States or of any department or agency thereof,

or of any corporation the stock of which is owned in whole

or in major part by the United States or any department or

agency thereof, to communicate in any manner or by any

means, to any other person whom such officer or

employee knows or has reason to believe to be an agent or

representative of any foreign government or any officer or

member of any Communist organization . . . any informa-

tion of a kind which shall have been classified by the Pres-

ident (or by the head of any such department, agency, or

corporation with the approval of the President) as affecting

the security of the United States, knowing or having reason

to know that such information has been so classified,

unless such officer or employees shall have been specifi-

cally authorized . . . to make such disclosure of such infor-

mation.

of any foreign government, or any officer or member of

any Communist organization . . . knowingly to obtain or

receive, or attempt to obtain or receive, directly or indi-

rectly, from any officer or employee of the United States or

of any department or agency thereof or of any corporation

the stock of which is owned in whole or in major part by

the United States or any department or agency thereof,

any information of a kind which shall have been classified

. . . as affecting the security of the United States, unless

special authorization for such communication shall first

have been obtained from the head of the department,

agency, or corporation having custody of or control over

such information.

(d) Any person who violates any provision of this sec-

tion shall, upon conviction thereof, be punished by a fine

. . . or imprisonment for not more than ten years, or by

both such fine and such imprisonment, and shall, more-

over, be thereafter ineligible to hold any office, or place of

honor, profit, or trust created by the Constitution or laws

of the United States.

(e) Any person may be prosecuted, tried, and pun-

ished for any violation of this section at any time within ten

years after the commission of such offence, notwithstand-

ing the provisions of any other statute of limitations: Pro-

vided, That if at the time of the commission of the offense

such person is an officer or employee of the United States

or of any department or agency thereof, or of any corpora-

tion the stock of which is owned in whole or in major part

by the United States or any department or agency thereof,

such person may be prosecuted, tried, and punished for

any violation of this section at any time within ten years

after such person has ceased to be employed as such offi-

cer or employee.

(f) Neither the holding of office nor membership in

any Communist organization by any person shall constitute

per se a violation of subsection (a) or subsection (c) of this

section or of any other criminal statute. The fact of the reg-

istration of any person under. . . this title as an officer or

member of any Communist organization shall not be

1544 ERA 9: Postwar United States

received in evidence against such person in any prosecu-

tion for any alleged violation of subsection (a) or subsec-

tion (c) of this section or for any alleged violation of any

other criminal statute.

Employment of Members of Communist Organ-

izations

Sec. 5. (a) When a Communist organization, as

defined in paragraph (5) of section 3 of this title, is regis-

tered or there is in effect a final order of the Board requir-

ing such organization to register, it shall be unlawful—

(1) For any member of such organization, with knowl-

edge or notice that such organization is so registered or

that such order has become final—

(A) in seeking, accepting, or holding any nonelective

office or employment under the United States, to conceal

or fail to disclose the fact that he is a member of such orga-

nization; or

(B) to hold any nonelective office or employment

under the United States; or

any defense facility, to conceal or fail to disclose the fact

that he is a member of such organization; or

(D) if such organization is a Communist-action orga-

nization, to engage in any employment in any defense

facility.

(2) For any officer or employee of the United States or

of any defense facility, with knowledge or notice that such

organization is so registered or that such order has become

final—

(A) to contribute funds or services to such organiza-

tion; or

(B) to advise, counsel or urge any person, with knowl-

edge or notice that such person is a member of such orga-

nization, to perform, or to omit to perform, any act if such

act or omission would constitute a violation of any provi-

sion of subparagraph (1) of this subsection.

(b) The Secretary of Defense is authorized and

directed to designate and proclaim, and from time to time

revise, a list of facilities . . . with respect to the operation of

which he finds and determines that the security of the

United States requires the application of the provisions of

subsection (a) of this section. The Secretary shall cause such

list as designated and proclaimed, or any revision thereof, to

be promptly published in the Federal Register. . .

Denial of Passports to Members of Communist Orga-

nizations

Sec. 6. (a) When a Communist organization as defined

in paragraph (5) of section 3 of this title is registered, or

there is in effect a final order of the Board requiring such

organization to register, it shall be unlawful for any mem-

ber of such organization, with knowledge or notice that

such organization is so registered or that such order has

become final—

(1) to make application for a passport, or the renewal

of a passport, to be issued or renewed by or under the

authority of the United States; or

(2) to use or attempt to use any such passport.

* * *

Harry S. Truman, Veto of

the Internal Security Act, 1950

I return herewith, without my approval, H.R. 9490, the

proposed “Internal Security Act of 1950. . .”

* * *

It would actually weaken our existing internal security

measures and would seriously hamper the Federal Bureau

of Investigation and our other security agencies.

It would help the Communists in their efforts to cre-

ate dissension and confusion within our borders.

It would help the Communist propagandists through-

out the world who are trying to undermine freedom by dis-

crediting as hypocrisy the efforts of the United States on

behalf of freedom.

Specifically, some of the principal objections to the bill

are as follows:

1. It would aid potential enemies by requiring the

publication of a complete list of vital defense plants, labo-

ratories, and other installations.

2. It would require the Department of Justice and its

Federal Bureau of Investigation to waste immense

amounts of time and energy attempting to carry out its

unworkable registration provisions.

3. It would deprive us of the great assistance of many

aliens in intelligence matters.

5. It would put the Government of the United States

in the thought-control business.

6. It would make it easier for subversive aliens to

become naturalized as United States Citizens.

7. It would make it give Government officials vast

powers to harass all of our citizens in the exercise of their

right of free speech.

* * *

Fortunately, we already have on the books strong laws,

which give us most of the protection we need from the real

dangers of treason, espionage, sabotage, and actions look-

ing to the overthrow of our Government by force and vio-

lence. Most of the provisions of this bill have no relation to

these real dangers.

* * *

Domestic Policies after World War II 1545

Sections 1 through 17 are . . . intended to force Com-

munist organizations to register and to divulge certain

information about themselves—information on their offi-

cers, their finances, and, in some cases, their member-

ship. These provisions would in practice be ineffective,

and would result in obtaining no information about

Communists that the FBI and our other security agencies

do not already have. But in trying to enforce these sec-

tions, we would have to spend a great deal of time, effort,

and money–all to no good purpose. Second, these provi-

sions are intended to impose various penalties on Com-

munists and others covered by the terms of the bill.

So far as Communists are concerned, all these penalties

. . . are already in effect under existing laws and proce-

dures. But the language of the bill is so broad and vague

that it might well result in penalizing the legitimate activ-

ities of people who are not Communists at all, but loyal

citizens.

Thus the net result of these sections of the bill would

be: no serious damage to the Communists, must damage to

the rest of us. Only the communist movement would gain

from such an outcome.

* * *

Sections 100 through 117 of Title II are intended to give

the Government power, in the event of invasion, war, or

insurrection in the United States in aid of a foreign enemy,

to seize and hold persons who could be expected to

attempt acts of espionage or sabotage, even though they

had as yet committed no crime. It may be that legislation

of this type should be on the statute books. But the provi-

sions in H.R. 9490 would very probably prove ineffective

to achieve the objective sought, since they would not sus-

pend the write of habeas corpus and under our legal sys-

tem to detain a man not charged with a crime would raise

serious constitutional questions unless the writ of habeas

corpus were suspended. . . .

* * *

The idea of requiring Communist organizations to divulge

information about themselves. . .is about as practical as

requiring thieves to register with the sheriff. Obviously, no

such organization as the Communist Party is likely to reg-

ister voluntarily.

* * *

. . . But under this bill, the Attorney General would have

to attempt the . . . difficult task of producing concrete legal

evidence [for the Subversive Activities Control Board

(SACB)] that men have particular ideas or opinions. This

would inevitably require the disclosure of many of the

FBI’s confidential sources of information and thus would

damage our national security.

If [the SACB gave] a favorable decision . . . the Board’s

decision could be appealed to the courts. The courts would

review any questions of law involved, and whether the

Board’s findings of fact were supported by the preponder-

ance of the evidence.

All these proceedings would require great effort and

much time. . . .

* * *

The simple fact is that when the courts at long last found

that a particular organization was required to register, all

the leaders of the organization would have to do to frus-

trate the law would be to dissolve the organization and

establish a new one with a different name and a new ros-

ter of nominal officers. The Communist Party has done

this again and again in countries throughout the world. . . .

* * *

. . . To impose these fruitless burdens upon the FBI would

divert it from its vital security duties and thus give aid and

comfort to the very Communists whom the bill is supposed

to control.

Unfortunately, these provisions are not merely inef-

fective and unworkable. They represent a clear and pre-

sent danger to our institutions.

. . .The application o the registration requirements to

so-called Communist-front organizations can be the great-

est danger to freedom of speech, press, and assembly,

since the Alien and Sedition Laws of 1798. . . .

. . . The bill would permit such a determination to be

based solely upon the extent to which the positions taken

or advanced by it from time to time on matters of policy do

not deviate from those of the Communist movement.

This provision could easily be used to classify as a

Communist-front organization any organization which is

advocating a single policy or objective which is also being

urged by the Communist Party or by a Communist foreign

government. In fact, this may be the intended result, since

the bill defines “organization” to include a group of per-

sons permanently or temporarily associated together for

joint action on any subject or subjects.” Thus, an organiza-

tion which advocates low-cost housing for sincere human-

itarian reasons might be classified as a Communist-front

organization because the Communists regularly exploit

slum conditions as one of their fifth-column techniques.

* * *

The basic error of these sections is that they move in the

direction of suppressing opinion and belief. This would be

a very dangerous course to take, not because we have any

sympathy for Communsit opinions, but because any gov-

ernmental stifling of the free expression of opinion is a

long step toward totalitarianism.

1546 ERA 9: Postwar United States

There is no more fundamental axiom of American

freedom than the familiar statement: In a free country, we

punish men for the crimes they commit, but never for the

opinions they have. And the reason this is so fundamental

to freedom is not, as many suppose, that it protects the few

unorthodox from suppression by the majority. To permit

freedom of expression is primarily for the benefit of the

majority because it protects criticism and criticism leads to

progress.

We can and we will prevent espionage, sabotage, or

other actions endangering our national security. But

we would betray our finest traditions if we attempted, as

this bill would attempt, to curb the simple expression of

opinion. This we should never do, no matter how dis-

tasteful the opinion may be to the vast majority of our

people. The course proposed by this bill would delight

the Communists, for it would make a mockery of the Bill

of Rights and of our claims to stand for freedom in the

world.

And what kind of effect would these provisions have

on the normal expression of political views? Obviously, if

this law were on the statute books, the part of prudence

would be to avoid saying anything that might be construed

by someone as not deviating sufficiently from the current

communist propaganda line. And since no one could be

sure in advance what views were safe to express, the

inevitable tendency would be to express no views on con-

troversial subjects. The result could only be to reduce the

vigor and strength of our political life—an outcome that

the Communists would happily welcome, but that free

men should abhor.

We need not fear the expression of ideas—we do need

to fear their suppression.

Our position in the vanguard of freedom rests largely

on our demonstration that the free expression of opinion

coupled with government by popular consent, leads to

national strength and human advancement. Let us not, in

cowering and foolish fear, throw away the ideals which are

the fundamental basis of our free society.

* * *

This is a time when we must marshal all our resources and

all the moral strength of our free system in self-defense

against the threat of Communist aggression. We will fail in

this, and we will destroy all that we seek to preserve, if we

sacrifice the liberties of our citizens in a misguided

attempt to achieve national security.

* * *

No consideration of expediency can justify the enactment

of such a bill as this, a bill which would so greatly weaken

our liberties and give aid and comfort to those who would

destroy us. I have, therefore, no alternative but to return

this bill without my approval, and I earnestly request the

Congress to reconsider its action.

Harry S. Truman

Source:

Statutes at Large, Vol. 68, pp. 987–1031; Congressional Record,

81st Cong., 2d Sess., Vol. 96, part 2, 15,629–15,632.

Dennis v. United States, 1951

U.S. Supreme Court decision, issued June 4, 1951, that upheld

the provisions of the Smith Alien Registration Act of 1940 pro-

hibiting anyone from advocating the forceful overthrow of the

U.S. government. Eleven high-ranking Communist Party lead-

ers had been convicted in New York of conspiring to teach and

advocate the violent destruction of the government and con-

spiring to organize the Communist Party in the United States

in order to advance that purpose. No overtly violent acts were

charged. In its 6-2 decision, the Supreme Court confirmed the

convictions, modifying its previous requirement that the law

could prohibit only speech that represented a “clear and pre-

sent danger.” Dissenting opinions argued that the act violated

First Amendment guarantees of free speech. Shortly after the

Court upheld the Smith Act, the FBI arrested the “second

echelon” Communist Party leaders. However, this time when

the arrests were appealed, the Court in effect overturned

Den-

nis

Yates v. United States

(355 U.S. 66 [1957]).

Yates

set a

standard that was so high it was almost impossible to convict

anyone.

Between

Dennis

and

Yates

, on March 3, 1952, the U.S.

Supreme Court, in

Adler v. Board of Education

(342 U.S. 485),

upheld a New York law requiring the New York Board of

Regents to deny employment in the public schools to mem-

bers of organizations that advocated or taught the doctrine of

overthrowing the United States government by force, violence,

or any unlawful means. The Board of Regents was instructed

to prepare a list of such subversive organizations. Membership

in them constituted “prima facie evidence” for disqualification

from employment. The 6-2 decision was overturned in

Key-

ishian v. Board of Regents

in 1967.

________________________

_______________________

Mr. Chief Justice Vinson announced the judgment of the

Court and an opinion in which Mr. Justice Reed, Mr. Jus-

tice Burton and Mr. Justice Minton join.

Petitioners were indicted in July, 1948, for violation of

the conspiracy provisions of the Smith Act, 54 Stat. 671,

18 U.S.C. (1946 ed.) Section 11, during the period of

April, 1945, to July, 1948. The pretrial motion to quash

the indictment on the grounds, inter alia, that the statute

Domestic Policies after World War II 1547

was unconstitutional was denied, United States v. Foster,

D.C., 80 F.Supp. 479, and the case was set for trial on Jan-

uary 17, 1949. A verdict of guilty as to all the petitioners

was returned by the jury on October 14, 1949. The Court

of Appeals affirmed the convictions. 183 F.2d 201. We

granted certiorari, 340 U.S. 863, 71 S.Ct. 91, limited to

the following two questions: (1) Whether either Section 2

or Section 3 of the Smith Act, inherently or as construed

and applied in the instant case, violates the First Amend-

ment and other provisions of the Bill of Rights; (2)

whether either Section 2 or Section 3 of the Act, inher-

ently or as construed and applied in the instant case, vio-

lates the First and Fifth Amendments because of

indefiniteness.

Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18

U.S.C. (1946 ed.) Sections 10, 11 (see present 18 U.S.C.

Section 2385), provide as follows:

“Sec. 2.

“(a) It shall be unlawful for any person—

“(1) to knowingly or willfully advocate, abet, advise, or

teach the duty, necessity, desirability, or propriety of over-

throwing or destroying any government in the United

States by force or violence, or by the assassination of any

officer of any such government;

“(2) with intent to cause the overthrow or destruction

of any government in the United States, to print, publish,

edit, issue, circulate; sell, distribute, or publicly display any

written or printed matter advocating, advising, or teaching

the duty, necessity, desirability, or propriety of overthrow-

ing or destroying any government in the United States by

force or violence;

“(3) to organize or help to organize any society, group,

or assembly of persons who teach, advocate, or encourage

the overthrow or destruction of any government in the

United States by force or violence; or to be or become a

member of, or affiliate with, any such society, group, or

assembly of persons, knowing the purposes thereof.

“(b) For the purposes of this section, the term ‘gov-

ernment in the United States’ means the Government of

the United States, the government of any State, Territory,

or possession of the United States, the government of the

District of Columbia, or the government of any political

subdivision of any of them.

“Sec. 3. It shall be unlawful for any person to attempt

to commit, or to conspire to commit, any of the acts pro-

hibited by the provisions of . . . this title.”

The indictment charged the petitioners with wilfully

and knowingly conspiring (1) to organize as the Commu-

nist Party of the United States of America a society, group

and assembly of persons who teach and advocate the over-

throw and destruction of the Government of the United

States by force and violence, and (2) knowingly and wil-

fully to advocate and teach the duty and necessity of over-

throwing and destroying the Government of the United

States by force and violence. The indictment further

alleged that Section 2 of the Smith Act proscribes these

acts and that any conspiracy to take such action is a viola-

tion of Section 3 of the Act.

The trial of the case extended over nine months, six of

which were devoted to the taking of evidence, resulting in

a record of 16,000 pages. Our limited grant of the writ of

certiorari has removed from our consideration any ques-

tion as to the sufficiency of the evidence to support the

jury’s determination that petitioners are guilty of the

offense charged. Whether on this record petitioners did in

fact advocate the overthrow of the Government by force

and violence is not before us, and we must base any dis-

cussion of this point upon the conclusions stated in the

opinion of the Court of Appeals, which treated the issue in

great detail. That court held that the record in this case

amply supports the necessary finding of the jury that peti-

tioners, the leaders of the Communist Party in this coun-

try, were unwilling to work within our framework of

democracy, but intended to initiate a violent revolution

whenever the propitious occasion appeared. Petitioners

dispute the meaning to be drawn from the evidence, con-

tending that the Marxist-Leninist doctrine they advocated

taught that force and violence to achieve a Communist

form of government in an existing democratic state would

be necessary only because the ruling classes of that state

would never permit the transformation to be accomplished

peacefully, but would use force and violence to defeat any

peaceful political and economic gain the Communists

could achieve. But the Court of Appeals held that the

record supports the following broad conclusions: By virtue

of their control over the political apparatus of the Com-

munist Political Association, petitioners were able to trans-

form that organization into the Communist Party; that the

policies of the Association were changed from peaceful

cooperation with the United States and its economic and

political structure to a policy which had existed before the

United States and the Soviet Union were fighting a com-

mon enemy, namely, a policy which worked for the over-

throw of the Government by force and violence; that the

Communist Party is a highly disciplined organization,

adept at infiltration into strategic positions, use of aliases,

and double-meaning language; that the Party is rigidly

controlled; that Communists, unlike other political parties,

tolerate no dissension from the policy laid down by the

guiding forces, but that the approved program is slavishly

followed by the members of the Party; that the literature

of the Party and the statements and activities of its leaders,

petitioners here, advocate, and the general goal of the

Party was, during the period in question, to achieve a

successful overthrow of the existing order by force and

violence.

1548 ERA 9: Postwar United States

Source:

Supreme Court Reporter, Vol. 71, pp. 857–909.

U.S. Senate, Censure of

Joseph McCarthy, 1954

Action taken by the U.S. Senate to condemn Senator Joseph

McCarthy (R-Wis.) on December 2, 1954, for abusing the

Senate and the Senate Privileges and Elections Subcommit-

tee. McCarthy became famous after a February 1950 speech

in which he charged that the State Department employed 205

members of the Communist Party. (The number changed

when he repeated the speech on the Senate floor.) After that,

the Wisconsin senator made it his main political objective to

investigate alleged Communist Party activities in government.

Democrats opposing him were defeated in the 1952 congres-

sional elections, making him virtually invulnerable to public

criticism from politicians, including Dwight Eisenhower dur-

ing his presidential campaign and as president. McCarthy’s

influence reached its peak when he became chairman of the

Senate Permanent Investigating Subcommittee in 1953.

Other Senate committees were also looking into Communist

penetration into education and the entertainment industry.

This period became known as the “McCarthy Era,” and the

term “McCarthyism,” first used by political cartoonist

Herblock, is still used today by both the left and right to char-

acterize “witch hunts” against holders of particular political

beliefs.

In late 1953, McCarthy’s subcommittee began investigat-

ing charges of subversive activities at a U.S. army base. The

hearings were played live on national television, preempting

normal programming and exposing the senator’s bullying tac-

tics to an audience estimated at as many as 12 million. His fre-

quent interruptions with “point of order” began to invoke

laughter instead of fear. On June 9, 1954, McCarthy named a

young lawyer, Fred Fisher, in the firm of army counsel Joseph

Welch, as a member of the National Lawyers Guild, an orga-

nization that both included and defended Communists. Welch

countered: “Little did I dream that you could be so reckless

and so cruel as to do an injury to that lad. . . . I fear he shall

always bear a scar needlessly inflicted by you.” When

McCarthy continued to excoriate Fisher, Welch famously dis-

missed him with “Senator, you have done enough. Have you

no sense of decency, sir, at long last? Have you left no sense

of decency?” Six months later, no longer afraid of McCarthy

personally, his Senate colleagues voted 67 to 22 to censure

him, the mildest punishment the Senate could give.

________________________

_______________________

Resolved, That the Senator from Wisconsin, Mr.

McCarthy, failed to cooperate with the Subcommittee on

Privileges and Elections of the Senate Committee on

Rules and Administration in clearing up matters referred

to that subcommittee which concerned his conduct as a

Senator and affected the honor of the Senate and, instead,

repeatedly abused the subcommittee and its members who

were trying to carry out assigned duties, thereby obstruct-

ing the constitutional processes of the Senate, and that this

conduct of the Senator from Wisconsin, Mr. McCarthy, is

contrary to senatorial traditions and is hereby condemned.

Sec. 2. The Senator from Wisconsin, Mr. McCarthy, in

writing to the chairman of the Select Committee To Study

Censure Charges (Mr. Watkins) after the select committee

had issued its report and before the report was presented

to the Senate charging three members of the select com-

mittee with “deliberate deception” and “fraud” for failure

to disqualify themselves; in stating to the press on Novem-

ber 4, 1954, that the special Senate session that was to

begin November 8, 1954, was a “lynch party”; in repeat-

edly describing this special Senate session as a “lynch bee”

in a nationwide television and radio show on November 7,

1954; in stating to the public press on November 13, 1954,

that the chairman of the select committee (Mr. Watkins)

was guilty of “the most unusual, most cowardly thing I’ve

heard of” and stating further: “I expected he would be

afraid to answer the questions, but didn’t think he’d be

stupid enough to make a public statement”; and in charac-

terizing the said committee as the “unwitting hand-

maiden,” “involuntary agent,” and “attorneys in fact” of the

Communist Party and in charging that the said committee

in writing its report “imitated Communist methods—that

it distorted, misrepresented, and omitted in its effort to

manufacture a plausible rationalization” in support of its

recommendations to the Senate, which characterizations

and charges were contained in a statement released to the

press and inserted in the Congressional Record of Novem-

ber 10, 1954, acted contrary to senatorial ethics and

tended to bring the Senate into dishonor and disrepute, to

obstruct, the constitutional processes of the Senate, and to

impair its dignity; and such conduct is hereby condemned.

Source:

Congressional Record, Vol. 100, pt. 12, p. 16,392.

Roth v. United States, 1957

U.S. Supreme Court decision issued June 24, 1957, that up-

held the constitutionality of obscenity laws, declaring that

obscenity is not a form of free speech protected by the First

Amendment, and, therefore, laws prohibiting obscene mate-

rial were constitutional. The case involved the federal prose-

cution of American publisher Samuel Roth for sending alleged

pornographic and obscene material through the mails. The

Domestic Policies after World War II 1549

problem lay in defining exactly what was obscene and differ-

entiating it from nonobscene pornography and erotica. Justice

William Brennan’s majority decision required obscene mate-

rial to be totally without redeeming social value. Overturning

laws based on excerpts and harm to the most susceptible

members of a community (i.e., children), the Court specified

that to be obscene the material, “taken as a whole” had to

appeal “to the prurient interest” of the average person. Despite

its attempt at specificity, definitional problems remained. In

Miller v. California

(413 U.S. 15), decided June 21, 1973,

Chief Justice Warren Burger further refined “community stan-

dards” to apply to a limited geographical area. As a result,

pornography foes attacked nationally distributed sexual mate-

rial in areas where “community standards” were likely to be

offended, therefore potentially threatening their publication

nationwide. However, the Supreme Court narrowed the defi-

nition of community standards to obviate that threat. The pop-

ularity of pornographic material on the Internet was also

causing First Amendment problems at the end of the 20th cen-

tury, because adults were entitled to view pornography (as

opposed to anything obviously “obscene”), but many parents

objected to its availability to children using computers in

schools and libraries. As of the early 21st century, the courts

overturned congressional attempts to curb availability to

potentially pornographic material on the Internet.

________________________

_______________________

(excerpt)

Mr. Justice Brennan delivered the opinion of the Court.

The constitutionality of a criminal obscenity statute is

the question in each of these cases. In Roth, the primary

constitutional question is whether the federal obscenity

statute violates the provision of the First Amendment that

“Congress shall make no law . . . abridging the freedom of

speech, or of the press. . . .” In Alberts, the primary con-

stitutional question is whether the obscenity provisions of

the California Penal Code invade the freedoms of speech

and press as they may be incorporated in the liberty pro-

tected from state action by the Due Process Clause of the

Fourteenth Amendment.

Other constitutional questions are: whether these

statutes violate due process, because too vague to support

conviction for crime; whether power to punish speech

and press offensive to decency and morality is in the

States alone, so that the federal obscenity statute violates

the Ninth and Tenth Amendments (raised in Roth); and

whether Congress, by enacting the federal obscenity

statute, under the power delegated by Art, I Section 8, cl.

7, to establish post offices and post roads, pre-empted the

regulation of the subject matter.

Roth conducted a business in New York in the publi-

cation and sale of books, photographs and magazines. He

used circulars and advertising matter to solicit sales. He

was convicted by a jury in the District Court for the South-

ern District of New York upon 4 counts of a 26-count

indictment charging him with mailing obscene circulars

and advertising, and an obscene book, in violation of the

federal obscenity statute. His conviction was affirmed by

the Court of Appeals for the Second Circuit. We granted

certiorari.

Alberts conducted a mail-order business from Los

Angeles. He was convicted by the Judge of the Municipal

Court of the Beverly Hills Judicial District under a mis-

demeanor complaint which charged him with lewdly

keeping for sale obscene and indecent books, and with

writing, composing and publishing an obscene advertise-

ment of them, in violation of the California Penal Code.

The conviction was affirmed by the Appellate Depart-

ment of the Superior Court of the State of California in

and for the County of Los Angeles. We noted probable

jurisdiction.

The dispositive question is whether obscenity is utter-

ance within the area of protected speech and press.

Although this is the first time the question has been

squarely presented to this Court, either under the First

Amendment or under the Fourteenth Amendment,

expressions found in numerous opinions indicate that this

Court has always assumed that obscenity is not protected

by the freedoms of speech and press . . .

. . . The guaranties of freedom of expression in effect

in 10 of the 14 States which by 1792 had ratified the Con-

stitution, gave no absolute protection for every utterance.

Thirteen of the 14 States provided for the prosecution of

libel, and all of those States made either blasphemy or pro-

fanity, or both, statutory crimes. As early as 1712, Mass-

achusetts made it criminal to publish “any filthy, obscene,

or profane song, pamphlet, libel or mock sermon” in imi-

tation or mimicking of religious services. Acts and Laws of

the Province of Mass. Bay, c. CV, Section 8 (1712), Mass.

Bay Colony Charters & Laws 399 (1814). Thus, profanity

and obscenity were related offenses.

[1] In light of this history, it is apparent that the

unconditional phrasing of the First Amendment was not

intended to protect every utterance. This phrasing did not

prevent this Court from concluding that libelous utter-

ances are not within the area of constitutionally protected

speech. Beauharnais v. People of State of Illinois, 343

U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919. At the

time of the adoption of the First Amendment, obscenity

law was not as fully developed as libel law, but there is

sufficiently contemporaneous evidence to show that

obscenity, too, was outside the protection intended for

speech and press.

[2] The protection given speech and press was fash-

ioned to assure unfettered interchange of ideas for the

1550 ERA 9: Postwar United States

bringing about of political and social changes desired by

the people. This objective was made explicit as early as

1774 in a letter of the Continental Congress to the inhabi-

tants of Quebec:

“The last right we shall mention, regards the freedom

of the press. The importance of this consists, besides the

advancement of truth, science, morality, and arts in gen-

eral, in its diffusion of liberal sentiments on the adminis-

tration of Government, its ready communication of

thoughts between subjects, and its consequential promo-

tion of union among them, whereby oppressive officers are

shamed or intimidated, into more honourable and just

modes of conducting affairs.” 1 Journals of the Continental

Congress 108 (1774).

[3] All ideas having even the slightest redeeming

social importance—unorthodox ideas, controversial ideas,

even ideas hateful to the prevailing climate of opinion—

have the full protection of the guaranties, unless exclud-

able because they encroach upon the limited area of more

important interests. But implicit in the history of the First

Amendment is the rejection of obscenity as utterly without

redeeming social importance. This rejection for that rea-

son is mirrored in the universal judgment that obscenity

should be restrained, reflected in the international agree-

ment of over 50 nations, in the obscenity laws of all of the

48 States, and in the 20 obscenity laws enacted by the

Congress from 1842 to 1956. This is the same judgment

expressed by this Court in Chaplinsky v. New Hampshire,

315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031:

“ . . . There are certain well-defined and narrowly lim-

ited classes of speech, the prevention and punishment of

which have never been thought to raise any Constitutional

problem. These include the lewd and obscene . . . . It has

been well observed that such utterances are no essential

part of any exposition of ideas, and are of such slight social

value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social

interest in order and morality . . . .”

We hold that obscenity is not within the area of con-

stitutionally protected speech or press.

[4] It is strenuously urged that these obscenity statutes

offend the constitutional guaranties because they punish

incitation to impure sexual thoughts, not shown to be

related to any overt antisocial conduct which is or may be

incited in the persons stimulated to such thoughts. In

Roth, the trial judge instructed the jury: “The words

‘obscene, lewd and lascivious’ as used in the law, signify

that form of immorality which has relation to sexual impu-

rity and has a tendency to excite lustful thoughts.” In

Alberts, the trial judge applied the test laid down in People

v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853, 855,

namely, whether the material has “a substantial tendency

to deprave or corrupt its readers by inciting lascivious

thoughts or arousing lustful desires.” (Emphasis added.) It

is insisted that the constitutional guaranties are violated

because convictions may be had without proof either that

obscene material will perceptibly create a clear and pre-

sent danger of antisocial conduct, or will probably induce

its recipients to such conduct. But, in light of our holding

that obscenity is not protected speech, the complete

answer to this argument is in the holding of this Court in

Beauharnais v. People of State of Illinois, supra, 343 U.S.

at page 266, 72 S.Ct. at page 735:

“Libelous utterances not being within the area of con-

stitutionally protected speech, it is unnecessary, either for

us or for the State courts, to consider the issues behind the

phrase ‘clear and present danger.’ Certainly no one would

contend that obscene speech, for example, may be pun-

ished only upon a showing of such circumstances. Libel, as

we have seen, is in the same class.”

[5, 6] However, sex and obscenity are not synonymous.

Obscene material is material which deals with sex in a

manner appealing to prurient interest. The portrayal of

sex, e.g., in art, literature and scientific works, is not itself

sufficient reason to deny material the constitutional pro-

tection of freedom of speech and press. Sex, a great and

mysterious motive force in human life, has indisputably

been a subject of absorbing interest to mankind through

the ages; it is one of the vital problems of human interest

and public concern. As to all such problems this Court said

in Thornhill v. State of Alabama, 310 U.S. 88, 101–102, 60

S.Ct 736, 744, 84 L.Ed. 1093:

“The freedom of speech and of the press guaranteed

by the Constitution embraces at the least the liberty to dis-

cuss publicly and truth fully all matters of public concern

without previous restraint or fear of subsequent punish-

ment. The exigencies of the colonial period and the efforts

to secure freedom from oppressive administration devel-

oped a broadened conception of these liberties as ade-

quate to supply the public need for information and

education with respect to the significant issues of the times.

. . . Freedom of discussion, if it would fulfill its historic

function in this nation, must embrace all issues about

which information is needed or appropriate to enable the

members of society to cope with the exigencies of their

period”.

[7] The fundamental freedoms of speech and press

have contributed greatly to the development and well-

being of our free society and are indispensable to its con-

tinued growth. Ceaseless vigilance is the watchword to

prevent their erosion by Congress or by the States. The

door barring federal and state intrusion into this area can-

not be left ajar; it must be kept tightly closed and opened

only the slightest crack necessary to prevent encroachment

upon more important interests. It is therefore vital that the

standards for judging obscenity safeguard the protection of

Domestic Policies after World War II 1551