"The people are sick and tired of witch hunts, of which the Smith Act prosecutions were the high point," burbled suety Philip M. ("Slim") Connelly, Los Angeles editor of the Communist People's World. Gathered around Connelly in a Los Angeles lawyer's office last week was a jubilant quorum of the 14 California Communist leaders in whose cases the U.S. Supreme Court had just ordered acquittal (for five), and new trials (for nine). Spokesman Connelly was giving out the new Red line that Communist martyrdom (including, said Manhattan's Daily Worker, those "sublimely heroic" atom spies, Julius and Ethel Rosenberg) had broadened the liberties of all Americans. More accurately, the court had just considerably narrowed the law against the activities of Communist leaders.
The California Communists were convicted by a jury, sentenced to five years' imprisonment, and fined $10,000 each in 1952. Against them was a single-count indictment combining two sections of the 1940 Smith Act: 1) conspiring "to advocate and teach the duty and necessity of overthrowing the Government of the U.S. by force and violence"; 2) conspiring "to organize, as the Communist Party of the U.S., a society of persons who so advocate and teach . . ." On both elements of the charge the court last week found error.
Meaning of Advocacy. Writing for the majority, Justice Harlan laid the fault principally on District Judge William C. Mathes for issuing "fatally defective" instructions to the jury at the 1952 trial. Judge Mathes had instructed the jury that "advocacy and teaching" under the Smith Act did not mean merely talking about the "desirability" or "propriety" of overthrowing the U.S. Government by force and violence. Instead, said Mathes, it required "urging" the "necessity" and "duty" of violent, forcible overthrow.
The Supreme Court held that the crime, as Mathes described it, was no crime at all because it still came within the protective mantle of the Constitution's First Amendment, which guarantees freedom of speech and political belief. Wrote Justice Harlan: "The essential distinction 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."*
As a proper legal definition of "advocacy and teaching," Harlan's opinion pointed to the 1949 jury instructions of Judge Harold Medina in the landmark trial in New York of Communist Party Secretary Eugene Dennis and ten other top U.S. Reds. The Medina instructions, upheld by the Supreme Court in 1951, said that the Smith Act denounced not the "abstract doctrine" of violent overthrow but the "teaching and advocacy of action" in "language reasonably and ordinarily calculated to incite persons to such action." Apparently, to the Supreme Court's mind, the key phrase was "incite to action"—and Judge Mathes had failed to use it.
The difference between the Mathes and Medina instructions might be "subtle and difficult to grasp," wrote Harlan, but this only proves the need for requiring clarity.