(2 of 3)
Justice Tom Clark, the court's lone all-out dissenter to the opinion, said the distinction was certainly too subtle and difficult for him. Clark added acidly: "Certainly if I had been [the judge] at the [California] trial, I would have given the [Medina] charge, not because I consider it any more correct, but simply because it had the stamp of approval of this court. Perhaps this approach is too practical. But I am sure the trial judge realizes now that practicality often pays."
Meaning of Organization. The Supreme Court's other major narrowing of the Smith Act was based on the meaning of the word "organize." The Smith Act specifies that whoever "organizes" groups dedicated to overthrow of the Government by force or violence is in violation of the law. Justice Department lawyers argued that the meaning of "organize" included such usual Communist Party activities as "the recruiting of new members and the forming of new units, and the regrouping or expansion of existing clubs, classes and other units"; in fact, said the Government, some of the defendants were actually titled Communist "organizers."
The Supreme Court was not impressed. Wrote Harlan: "We should follow the familiar rule that criminal statutes are to be strictly construed, and give to 'organize' its narrow meaning, that is, that the word refers only to acts entering into the creation of a new organization, and not to acts thereafter performed in carrying on its activities, even though such acts may loosely be termed 'organizational.' " Therefore, since the U.S. Communist Party was organized (i-e., founded) no later than 1945, and the defendants were indicted in 1951, the "organizing" indictment was barred by a three-year statute of limitations.
Facts of the Case. That decision made, the Supreme Court thumbed through the evidence of the lower-court trial to decide —like a jury—whether the defendants could be found guilty if the facts 'about "organizing" were excluded. (Although some critics, including dissenting Justice Clark, said the court was invading the province of the jury, the Constitution clearly gives the Supreme Court appellate jurisdiction "both as to Law and Fact"). Result: the court ordered that five of the defendants (including Slim Connelly) must be freed entirely, but that the other nine could be tried again on the sole basis of their "advocacy and teaching."
Even this was not enough for Justices Black and Douglas, who have long held that the Smith Act is unconstitutional. Black, in an opinion "concurring in part and dissenting in part," joined with Douglas in demanding acquittal for all 14 Communists. In fact Black advanced the proposition that the U.S. should move to protect its security only after rebellion or rioting has started. Concluded he: "The First Amendment provides the only kind of security system that can preserve a free government—one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines, however obnoxious and antagonistic such views may be to the rest of us."