Supreme Court decision
By: John Marshall Harlan
Date: June 17, 1957
Source: Harlan, John Marshall. Yates v. United States, 354 U.S. 298 (1957). Available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&v... ; website home page: http://www.findlaw.com (accessed March 5, 2003).
About the Author: John Marshall Harlan (1899–1971) was grandson and namesake of another Supreme Court justice, who served from 1877 to 1911. Harlan attended Princeton University as a Rhodes scholar and earned a law degree at New York University. In 1955 he was appointed to the Supreme Court by President Dwight D. Eisenhower (served 1953–1961). Harlan believed that federal courts should not interfere unnecessarily in state and local matters, but in several important cases he upheld the majority's defense of civil rights.
The First Amendment, which established freedom of speech, only specifically limited the federal government's powers to control speech and was not always perceived to control the states. Through much of early U.S. history, the federal government left most free speech issues to local governments, which enacted various laws to control what was said and written. These laws generally did not become constitutional issues. In the early twentieth century, though, there was increasing concern about threats from outside America. As these concerns grew, so did laws aiming to control speech. For instance, during World War I (1914–1918), the U.S. government itself passed several laws prohibiting people from interfering with the war effort. The only real victory for free speech was in 1925 when the Supreme Court held that the First Amendment applied to the states due to the Fourteenth Amendment, which says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
In 1940, the U.S. government passed the Smith Act, which made it illegal to advocate or organize the violent overthrow of the government. This law was used in the late 1940s against a number of communist leaders—not for doing anything to overthrow the government, but for advocating communist doctrine. These efforts were upheld in 1951 in the case Dennis v. U.S., which held that merely advocating that the government should be overthrown was enough to merit conviction. Dennis came to the Supreme Court at a time when the people of the United States were quite worried about the communist threat from the Soviet Union.
Six years later, when the threat had abated somewhat, the Smith Act once again came before the Supreme Court. In 1951, Oleta Yates and 13 other members of the U.S. Communist Party in California were convicted of violating the Smith Act by teaching the necessity of the forcible overthrow of the government. Yates claimed that she and her cohorts in the Communist Party were engaged in passive actions, while a violation of the Smith Act involves active attempts to overthrow the government. The Supreme Court agreed.
The Supreme Court in Yates held that mere advocacy of an idea was not illegal, but that one had to advocate a specific illegal act. Communist leaders could no longer be prosecuted for simply being communists and expressing the idea that the U.S. government should be overthrown, but had to advocate specific illegal action to overthrow the government. This reduced prosecution under the Smith Act to almost nothing. In the six years between Dennis and Yates, more than 100 communists were convicted; after Yates, there were few convictions. The Supreme Court also held that the U.S. government generally could not make communist party members register with the government. These decisions greatly increased Americans' freedom of speech and freedom of association. They also eased the way for civil rights groups, as registration was no longer required and it was more difficult to prosecute those who advocated "unwelcome" ideas, which, for much of the white South, included civil rights.
The Supreme Court continued to expand the ideas of free speech and free expression. In Brandenburg v. Ohio (1969), the Court ruled that only speech aimed at producing or inciting "imminent lawless action" or likely to produce or incite such action could be prosecuted under the Smith Act. This greatly expanded upon Dennis and Yates and similar cases where the Court had held that a "clear and present danger" had to be present to permit the suppression of speech. The Brandenburg standard has continued to be upheld. The Supreme Court has steadfastly overturned laws banning flag burning and certain laws banning the burning of crosses. Focusing on the expression of one point of view, these laws violated the First Amendment's provision for freedom of speech for all viewpoints.
Primary Source: Yates v. U.S. [excerpt]
SYNOPSIS: Justice John M. Harlan holds that advocacy of the type banned by the Smith Act does not mean mere discussion of illegal action, but means advocacy of a specific illegal act. Thus, the defendants in Yates, convicted under the former definition of advocacy, must have their convictions overturned. He reaffirms Dennis, holding that an individual must advocate the overthrow of government by forcible action to be convicted.
Mr. Justice Harlan delivered the opinion of the Court.…
In the view we take of this case, it is necessary for us to consider only the following of petitioners' contentions: (1) that the term "organize" as used in the Smith Act was erroneously construed by the two lower courts; (2) that the trial court's instructions to the jury erroneously excluded from the case the issue of "incitement to action"; (3) that the evidence was so insufficient as to require this Court to direct the acquittal of these petitioners; and (4) [that one of the defendant's convictions was precluded by a prior Court decision].… For reasons given here after, we conclude that these convictions must be reversed and the case remanded to the District Court with instructions to enter judgments of acquittal as to certain of the petitioners, and to grant a new trial as to the rest.
I. The Term "Organize"
… Petitioners claim that "organize" means to "establish," "found," or "bring into existence," and that in this sense the Communist Party was organized by 1945 at the latest. On this basis petitioners contend that this part of the indictment, returned in 1951, was barred by the three-year statute of limitations. The Government, on the other hand, says that "organize" connotes a continuing process which goes on throughout the life of an organization, and that, in the words of the trial court's instructions to the jury, the term includes such things as "the recruiting of new members and the forming of new units, and the regrouping or expansion of existing clubs, classes and other units of any society, party, group or other organization." The two courts below accepted the Government's position. We think, however, that petitioners' position must prevail.…
We conclude, therefore, that since the Communist Party came into being in 1945, and the indictment was not returned until 1951, the three-year statute of limitations had run on the "organizing" charge, and required the withdrawal of that part of the indictment from the jury's consideration.…
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.…
We are thus faced with the question whether the Smith Actprohibits 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.…
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.… 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 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.…
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 Dennisthat 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.
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." … 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," … 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 as the kind of indoctrination preparatory to action which was condemned in Dennis. As one of the concurring opinions in Dennisput 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." … There is nothing in Dennis which makes that historic distinction obsolete.…
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 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.…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: "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." …
The judgment of the Court of Appeals is reversed, and the case remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
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Civil Liberties Docket, Vol. 3, No. 1. October 1957. Meiklejohn Civil Liberties Institute Archives. Available online at http://sunsite.berkeley.edu/meiklejohn/meik-3_1/meik-3_1-2.... ; website home page: http://bancroft.berkeley.edu/collections/meiklejohn/project... (accessed March 5, 2003).