PENNSYLVANIA v. NELSON.
CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, WESTERN DISTRICT.
Argued November 15-16, 1955.
Decided April 2, 1956.
The Smith Act, as amended, 18 U.S.C. 2385, which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act, which proscribes the same conduct. Pp. 498-510.
Frank F. Truscott, Special Deputy Attorney General of Pennsylvania, and Harry F. Stambaugh argued the cause for petitioner. With them on the brief were Frank P. Lawley, Jr., Deputy Attorney General, and Albert A. Fiok.
Herbert S. Thatcher argued the cause for respondent. With him on the brief was Victor Rabinowitz.
By special leave of Court, Charles F. Barber argued the cause for the United States, and Louis C. Wyman, Attorney General, for the State of New Hampshire, as amici curiae, urging reversal. On the brief with Mr. Barber were Solicitor General Sobeloff, Assistant Attorney General Tompkins, Harold D. Koffsky and Philip R. Monahan. Mr. Wyman also filed a brief. [350 U.S. 497, 498]
Briefs of amici curiae urging reversal were filed by George Fingold, Attorney General, and Lowell S. Nicholson, Samuel H. Cohen and Fred L. True, Jr., Assistant Attorneys General, for the State of Massachusetts, and Ralph B. Gregg for the American Legion.
Briefs of amici curiae urging affirmance were filed by Osmond K. Fraenkel and Herbert Monte Levy for the American Civil Liberties Union, Walter C. Longstreth, Allen S. Olmsted, 2d and William Allen Rahill for the Civil Liberties Committee of the Philadelphia Yearly Meeting of the Religious Society of Friends, and Frank J. Donner, Royal W. France, Arthur Kinoy and Marshall Perlin for Feldman et al.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The respondent Steve Nelson, an acknowledged member of the Communist Party, was convicted in the Court of Quarter Sessions of Allegheny County, Pennsylvania, of a violation of the Pennsylvania Sedition Act 1 and sentenced to imprisonment for twenty years and to a fine of $10,000 and to costs of prosecution in the sum of $13,000. The Superior Court affirmed the conviction. 172 Pa. Super. 125, 92 A. 2d 431. The Supreme Court of Pennsylvania, recognizing but not reaching many alleged serious trial errors and conduct of the trial court infringing upon respondent's right to due process of law, 2 decided [350 U.S. 497, 499] the case on the narrow issue of supersession of the state law by the Federal Smith Act. 3 In its opinion, the court stated:
Many State Attorneys General and the Solicitor General of the United States appeared as amici curiae for petitioner, and several briefs were filed on behalf of the respondent. Because of the important question of federal-state relationship involved, we granted certiorari. 348 U.S. 814 . [350 U.S. 497, 500]
It should be said at the outset that the decision in this case does not affect the right of States to enforce their sedition laws at times when the Federal Government has not occupied the field and is not protecting the entire country from seditious conduct. The distinction between the two situations was clearly recognized by the court below. 7 Nor does it limit the jurisdiction of the States where the Constitution and Congress have specifically given them concurrent jurisdiction, as was done under the Eighteenth Amendment and the Volstead Act. United States v. Lanza, 260 U.S. 377 . Neither does it limit the right of the State to protect itself at any time against sabotage or attempted violence of all kinds. 8 Nor does it prevent the State from prosecuting where the same act constitutes both a federal offense and a state offense under the police power, as was done in Fox v. Ohio, 5 How. 410, and Gilbert v. Minnesota, 254 U.S. 325 , relied upon by petitioner as authority herein. In neither of those cases did the state statute impinge on [350 U.S. 497, 501] federal jurisdiction. In the Fox case, the federal offense was counterfeiting. The state offense was defrauding the person to whom the spurious money was passed. In the Gilbert case this Court, in upholding the enforcement of a state statute, proscribing conduct which would "interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota," treated it not as an act relating to "the raising of armies for the national defense, nor to rules and regulations for the government of those under arms [a constitutionally exclusive federal power]. It [was] simply a local police measure . . . ." 9
Where, as in the instant case, Congress has not stated specifically whether a federal statute has occupied a field in which the States are otherwise free to legislate, 10 different [350 U.S. 497, 502] criteria have furnished touchstones for decision. Thus,
First, "[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Rice v. Santa Fe Elevator Corp., 331 U.S., at 230 . The Congress determined in 1940 that it was necessary for it to re-enter the field of antisubversive legislation, which had been abandoned by it in 1921. In that year, it enacted the Smith Act which proscribes advocacy of the overthrow of any government - federal, state or local - by force and violence and organization of and knowing membership in a group which so advocates. 11 Conspiracy to commit any of these acts is punishable under the general criminal conspiracy provisions in 18 U.S.C. 371. The Internal Security Act of 1950 is aimed more directly at Communist organizations. 12 It distinguishes between "Communist-action [350 U.S. 497, 503] organizations" and "Communist-front organizations," 13 requiring such organizations to register and to file annual reports with the Attorney General giving complete details as to their officers and funds. 14 Members of Communist-action organizations who have not been registered by their organization must register as individuals. 15 Failure to register in accordance with the requirements of Sections 786-787 is punishable by a fine of not more than $10,000 for an offending organization and by a fine of not more than $10,000 or imprisonment for not more than five years or both for an individual offender - each day of failure to register constituting a separate offense. 16 And the Act imposes certain sanctions upon both "action" and "front" organizations and their members. 17 The Communist Control Act of 1954 declares "that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States" and that "its role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States." 18 It also contains a legislative finding that the Communist Party is a "Communist-action organization" within the meaning of the Internal Security Act of 1950 and provides that "knowing" members of the Communist Party are "subject to all the provisions and penalties" of that Act. 19 It furthermore sets up a new classification of "Communist-infiltrated organizations" 20 [350 U.S. 497, 504] and provides for the imposition of sanctions against them.
We examine these Acts only to determine the congressional plan. Looking to all of them in the aggregate, the conclusion is inescapable that Congress has intended to occupy the field of sedition. Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it. Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law. As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604 :
When we were confronted with a like situation in the field of labor-management relations, Mr. Justice Jackson wrote:
Since we find that Congress has occupied the field to the exclusion of parallel state legislation, that the dominant interest of the Federal Government precludes state intervention, and that administration of state Acts would conflict with the operation of the federal plan, we are convinced that the decision of the Supreme Court of Pennsylvania is unassailable.
We are not unmindful of the risk of compounding punishments which would be created by finding concurrent state power. In our view of the case, we do not reach the question whether double or multiple punishment for the same overt acts directed against the United States has constitutional sanction. 30 Without compelling [350 U.S. 497, 510] indication to the contrary, we will not assume that Congress intended to permit the possibility of double punishment. Cf. Houston v. Moore, 5 Wheat. 1, 31, 75; Jerome v. United States, 318 U.S. 101, 105 .
The judgment of the Supreme Court of Pennsylvania is
Any writing, publication, printing, cut, cartoon, utterance, or conduct, either individually or in connection or combination with any other person, the intent of which is:
(a) To make or cause to be made any outbreak or demonstration of violence against this State or against the United States.
(b) To encourage any person to take any measures or engage in any conduct with a view of overthrowing or destroying or attempting to overthrow or destroy, by any force or show or threat of force, the Government of this State or of the United States.
(c) To incite or encourage any person to commit any overt act with a view to bringing the Government of this State or of the United States into hatred or contempt.
(d) To incite any person or persons to do or attempt to do personal injury or harm to any officer of this State or of the United States, or to damage or destroy any public property or the property of any public official because of his official position. [350 U.S. 497, 511]
The word "sedition" shall also include:
(e) The actual damage to, or destruction of, any public property or the property of any public official, perpetrated because the owner or occupant is in official position.
(f) Any writing, publication, printing, cut, cartoon, or utterance which advocates or teaches the duty, necessity, or propriety of engaging in crime, violence, or any form of terrorism, as a means of accomplishing political reform or change in government.
(g) The sale, gift or distribution of any prints, publications, books, papers, documents, or written matter in any form, which advocates, furthers or teaches sedition as hereinbefore defined.
(h) Organizing or helping to organize or becoming a member of any assembly, society, or group, where any of the policies or purposes thereof are seditious as hereinbefore defined.
Sedition shall be a felony. Whoever is guilty of sedition shall, upon conviction thereof, be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or to undergo imprisonment not exceeding twenty (20) years, or both.
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of [350 U.S. 497, 512] overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof -
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
[ Footnote 2 ] The Supreme Court also did not have to reach the question of the constitutionality of subdivision (c) of the Pennsylvania Act, the basis of four counts of the twelve-count indictment, which punishes utterances "or conduct [intended to] incite or encourage any person to commit any overt act with a view to bringing the Government of this State or of the United States into hatred or contempt." Cf. Winters v. New York, 333 U.S. 507 . This provision is strangely [350 U.S. 497, 499] reminiscent of the Sedition Act of 1798, 1 Stat. 596, which punished utterances made "with intent to defame the . . . government, or either house of the . . . Congress, or the . . . President, or to bring them . . . into contempt or disrepute; or to excite against them . . . the hatred of the good people of the United States . . . ."
[ Footnote 3 ] 377 Pa. 58, 104 A. 2d 133.
[ Footnote 4 ] 377 Pa., at 69, 104 A. 2d, at 139.
[ Footnote 5 ] 54 Stat. 670.
[ Footnote 6 ] 18 U.S.C. 2385. The text of the statute is set out in an Appendix to this opinion, post, p. 511. (Another part of the Smith Act, punishing the advocacy of mutiny, is now 18 U.S.C. 2387.)
[ Footnote 7 ] "No question of federal supersession of a state statute was in issue . . . when the Supreme Court upheld the validity of the state statutes in Gitlow v. New York, 268 U.S. 652 (1925), and Whitney v. California, 274 U.S. 357 (1927)." 377 Pa., at 73-74, 104 A. 2d, at 141.
Although the judgments of conviction in both Gitlow and Whitney were rendered in 1920, before repeal of the federal wartime sedition statute of 1918, 41 Stat. 1359, the question of supersession was not raised in either case and, of course, not considered in this Court's opinions.
[ Footnote 8 ] "Nor is a State stripped of its means of self-defense by the suspension of its sedition statute through the entry of the Federal Government upon the field. There are many valid laws on Pennsylvania's statute books adequate for coping effectively with actual or threatened internal civil disturbances. As to the nationwide threat to all citizens, imbedded in the type of conduct interdicted by a sedition act, we are - all of us - protected by the Smith Act and in a manner more efficient and more consistent with the service of our national welfare in all respects." 377 Pa., at 70, 104 A. 2d, at 139.
[ Footnote 9 ] 254 U.S., at 331 . The Court went on to observe: ". . . the State knew the conditions which existed and could have a solicitude for the public peace, and this record justifies it. Gilbert's remarks were made in a public meeting. They were resented by his auditors. There were protesting interruptions, also accusations and threats against him, disorder and intimations of violence. And such is not an uncommon experience. On such occasions feeling usually runs high and is impetuous; there is a prompting to violence and when violence is once yielded to, before it can be quelled, tragedies may be enacted. To preclude such result or a danger of it is a proper exercise of the power of the State." Id., at 331-332.
[ Footnote 10 ] Petitioner makes the subsidiary argument that 18 U.S.C. 3231 shows a congressional intention not to supersede state criminal statutes by any provision of Title 18. Section 3231 provides:
[ Footnote 11 ] See Appendix, post, p. 511. See also the Voorhis Act passed in 1940, now codified as 18 U.S.C. 2386, and the Foreign Agents Registration Act passed in 1938, 22 U.S.C. 611 et seq.
[ Footnote 12 ] 50 U.S.C. 781 et seq.
[ Footnote 13 ] Id., 782 (3), (4).
[ Footnote 14 ] Id., 786.
[ Footnote 15 ] Id., 787.
[ Footnote 16 ] Id., 794 (a).
[ Footnote 17 ] Id., 784, 785, 789, 790.
[ Footnote 18 ] 50 U.S.C. (1955 Supp.) 841.
[ Footnote 19 ] Id., 843.
[ Footnote 20 ] Id., 782 (4A).
[ Footnote 21 ] It is worth observing that in Hines this Court held a Pennsylvania statute providing for alien registration was superseded by Title III of the same Act of which the commonly called Smith Act was Title I. Title II amended certain statutes dealing with the exclusion and deportation of aliens. The provisions of Title I involve a field of no less dominant federal interest than Titles II and III, in which Congress manifestly did not desire concurrent state action.
[ Footnote 22 ] 50 U.S.C. 781 (15).
[ Footnote 24 ] 377 Pa., at 76, 104 A. 2d, at 142.
[ Footnote 25 ] The Public Papers and Addresses of Franklin D. Roosevelt, 1939 Volume, pp. 478-479 (1941).
[ Footnote 26 ] Proceedings, p. 23.
[ Footnote 27 ] 377 Pa., at 74-75, 104 A. 2d, at 141.
[ Footnote 28 ] E. g., compare Fla. Stat., 1953, 876.02: "Any person who - . . . (5) Becomes a member of, associated with or promotes the interest of any criminal anarchistic, communistic, naziistic or fascistic organization, . . . [s]hall be guilty of a felony . . .," with 50 U.S.C. 783 (f): "Neither the holding of office nor membership in any [350 U.S. 497, 509] 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 registration of any person under section 787 or section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute."
[ Footnote 30 ] But see Grant, The Lanza Rule of Successive Prosecutions, 32 Col. L. Rev. 1309.
MR. JUSTICE REED, with whom MR. JUSTICE BURTON and MR. JUSTICE MINTON join, dissenting.
The problems of governmental power may be approached in this case free from the varied viewpoints that focus on the problems of national security. This is a jurisdictional problem of general importance because it involves an asserted limitation on the police power of the States when it is applied to a crime that is punishable also by the Federal Government. As this is a recurring problem, it is appropriate to explain our dissent.
Congress has not, in any of its statutes relating to sedition, specifically barred the exercise of state power to punish the same Acts under state law. And, we read the majority opinion to assume for this case that, absent federal legislation, there is no constitutional bar to punishment of sedition against the United States by both a State and the Nation. 1 The majority limits to the federal [350 U.S. 497, 513] courts the power to try charges of sedition against the Federal Government.
First, the Court relies upon the pervasiveness of the antisubversive legislation embodied in the Smith Act of 1940, 18 U.S.C. 2385, the Internal Security Act of 1950, 64 Stat. 987, and the Communist Control Act of 1954, 68 Stat. 775. It asserts that these Acts in the aggregate mean that Congress has occupied the "field of sedition" to the exclusion of the States. The "occupation of the field" argument has been developed by this Court for the Commerce Clause and legislation thereunder to prevent partitioning of this country by locally erected trade barriers. In those cases this Court has ruled that state legislation is superseded when it conflicts with the comprehensive regulatory scheme and purpose of a federal plan. Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 . The two cases cited by the Court to support its argument that the broad treatment of any subject within the federal power bars supplemental action by States are of this nature. In our view neither case is apposite to the Smith Act. The Varnville case dealt with general regulation of interstate commerce making the originating carrier liable to the holder of its interstate bill of lading for damage caused by a common carrier of property. This Court held that the section through the federal commerce power superseded a state right of action against a nonoriginating carrier for damages and a penalty for injury occurring on another line. The pertinent section, 34 Stat. 595, 7, expressed a controlling federal policy for this commerce. The Rice case dealt with regulations of warehouses. We barred state action in that area because the Act declared that the authority it conferred "shall be exclusive with respect to all persons securing a license" under the Act. 331 U.S., at 224 and 233.
But the federal sedition laws are distinct criminal statutes that punish willful advocacy of the use of force [350 U.S. 497, 514] against "the government of the United States or the government of any State." These criminal laws proscribe certain local activity without creating any statutory or administrative regulation. There is, consequently, no question as to whether some general congressional regulatory scheme might be upset by a coinciding state plan. 2 In these circumstances the conflict should be clear and direct before this Court reads a congressional intent to void state legislation into the federal sedition acts. 3 Chief Justice Marshall wrote:
We cannot agree that the federal criminal sanctions against sedition directed at the United States are of such a pervasive character as to indicate an intention to void state action.
Secondly, the Court states that the federal sedition statutes touch a field "in which the federal interest is so dominant" they must preclude state laws on the same subject. This concept is suggested in a comment on Hines v. Davidowitz, 312 U.S. 52 , in the Rice case, at 230. The Court in Davidowitz ruled that federal statutes compelling alien registration preclude enforcement of state statutes requiring alien registration. We read Davidowitz to teach nothing more than that, when the Congress provided a single nation-wide integrated system of regulation so complete as that for aliens' registration (with fingerprinting, a scheduling of activities, and continuous information as to their residence), the Act bore so directly on our foreign relations as to make it evident that Congress intended only one uniform national alien registration system. 5 [350 U.S. 497, 516]
We look upon the Smith Act as a provision for controlling incitements to overthrow by force and violence the Nation, or any State, or any political subdivision of either. 6 Such an exercise of federal police power carries, we think, no such dominancy over similar state powers as might be attributed to continuing federal regulations concerning foreign affairs or coinage, for example. 7 In the responsibility of national and local governments to protect themselves against sedition, there is no "dominant interest." [350 U.S. 497, 517]
We are citizens of the United States and of the State wherein we reside and are dependent upon the strength of both to preserve our rights and liberties. Both may enact criminal statutes for mutual protection unless Congress has otherwise provided. It was so held in Gilbert v. Minnesota, 254 U.S. 325 . In Gilbert the federal interest in raising armies did not keep this Court from permitting Minnesota to punish persons who interfered with enlistments (id., at 326), even though a comprehensive federal criminal law proscribed identical activity. 40 Stat. 553. We do not understand that case as does the majority. In our view this Court treated the Minnesota statute only alternatively as a police measure, p. 331. Minnesota made it unlawful to advocate "that men should not enlist in the military or naval forces of the United States." It was contended, pp. 327-328, that the power to punish such advocacy was "conferred upon Congress and withheld from the States." This Court ruled against the contention, saying:
Finally, and this one point seems in and of itself decisive, there is an independent reason for reversing the Pennsylvania Supreme Court. The Smith Act appears in Title 18 of the United States Code, which Title codifies the federal criminal laws. Section 3231 of that Title provides:
The law stands against any advocacy of violence to change established governments. Freedom of speech allows full play to the processes of reason. The state and national legislative bodies have legislated within constitutional limits so as to allow the widest participation by the law enforcement officers of the respective governments. The individual States were not told that they are powerless to punish local acts of sedition, nominally directed against the United States. Courts should not interfere. We would reverse the judgment of the Supreme Court of Pennsylvania.
[ Footnote 1 ] No problem of double punishment exists in this case. See the Court's opinion, p. 499, and its last paragraph, p. 509. See United States v. Lanza, 260 U.S. 377, 382 ; The Federalist, No. 32. Cf. Houston v. Moore, 5 Wheat. 1, statement at p. 22 with that at pp. 44-45.
[ Footnote 2 ] Hunt, Federal Supremacy and State Anti-Subversive Legislation, 53 Mich. L. Rev. 407, 427-428; Note, 55 Col. L. Rev. 83, 90.
[ Footnote 4 ] Forty-two States, along with Alaska and Hawaii, now have laws which penalize the advocacy of violent overthrow of the federal or state governments. Digest of the Public Record of Communism in the United States (Fund for the Republic, 1955) 266-306. In hearings before the House Judiciary Committee on the proposed Smith Act, both witnesses and members of the Committee made references to existing state sedition laws. Hearings before Subcommittee No. 3, Committee on the Judiciary, House of Representatives, on H. R. 5138, [350 U.S. 497, 515] 76th Cong., 1st Sess., pp. 7, 69, 83-85. Similar comment was heard in the congressional debates. 84 Cong. Rec. 10452. In fact, the Smith Act was patterned on the New York Criminal Anarchy Statute. Commonwealth v. Nelson, 377 Pa. 58, 86, 104 A. 2d 133, 147. The original text of the Smith Act is set out in the hearings before Subcommittee No. 3, supra, p. 1, and the New York Act may be read in Gitlow v. New York, 268 U.S. 652, 654 -655. Further evidence of congressional notice of state legislation may be found since the passage of the Smith Act. S. Rep. No. 1358, 81st Cong., 2d Sess., p. 9; H. R. Rep. No. 2980, 81st Cong., 2d Sess., p. 2; H. R. Rep. No. 1950, 81st Cong., 2d Sess., pp. 25-46 (Un-American Activities Committee). See 67 Harv. L. Rev. 1419, 1420; 40 Cornell L. Rev. 130, 133.
States are barred by the Constitution from entering into treaties and by 18 U.S.C. 953 from correspondence or intercourse with foreign governments with relation to their disputes or controversies with this Nation.
[ Footnote 7 ] It seems quite reasonable to believe "that the exclusion principle is to be more strictly applied when the Congress acts in a field wherein the constitutional grant of power to the federal government is exclusive, as in its right to protect interstate commerce and to control international relations." Albertson v. Millard, 106 F. Supp. 635, 641.
[ Footnote 8 ] Mr. Justice Brandeis, dissenting, emphasized the ruling here applicable thus:
[ Footnote 9 ] See note 4, supra.
[ Footnote 10 ] The brief added, p. 31: ". . . the Attorney General of the United States recently informed the attorneys general of the several states . . . that a full measure of federal-state cooperation would be in the public interest. See New York Times, Sept. 15, 1955, p. 19."