Hammond v. Lancaster Brief Amicus Curiae

    IN  T H E

Court of Appeals of Maryland
October Term, 1949

No. 107

HALL HAMMOND, Attorney General of the State 
of Maryland, <■/ al.

Appellants,
vs.

II. CARRINGTON LANCASTER, ct al,
Appellees.

APPEAL. FE O M  T H E  C IR C U IT  CO U RT N O . 2  O F BA LTIM O R E C ITY

( S h b e b o w , J . )

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE.

A rnold  H. S eixas,
T hurgood  M a rshall ,
R obert L. C arter ,

Attorneys for the National Asso­
ciation for the Advancement of 
Colored People as Amicus Curiae.



TABLE OF CONTENTS

PAGE

Statement of Interest of the National Association for 
the Advancement of Colored People _____________ 1

Statement of the Case__________________________ 2
Argument:

I. The Subversive Activities Act abridges the con­
stitutional guarantees of freedom of speech and 
assembly ____ 1__________________________  3

II. The Subversive Activities Act is violative of the 
due process clause of the Fourteenth Amend­
ment in that it is a legislative enactment of the 
theory of guilt by association____________ 15

Conclusion_________ ___ ■_______________________  19

Table of Citations
Bridges v. California, 314 U. S. 252 _______________  8
Bridges v. Wixon, 326 U. S. 135__________________ 3
Cantwell v. Connecticut, 310 U. S. 296 _____________  10
Connally v. General Construction Co., 269 U. S. 385 __  12
Craig v. Harney, 331 U. S. 367 __________________  10
DeJonge v. Oregon, 299 U. S. 353 _________________ 8
Fiske v. Kansas, 274 U. S. 380 _________ __________  11
Herndon v. Lowry, 301 U. S. 242 ___________ ______  8
Gitlow v. New York, 268 U. S. 652 __ _____________  8
Lanzetta v. United States, 306 U. S. 451___________  12
Milk Wagon Drivers Union v. Meadowmoor Dairies,

Inc., 312 U. S. 287 _____________________ ____  11
Palko v. Connecticut, 302 U. S. 319________________ 9



11

PAGE

Schenck v. United States, 249 U. S. 4 7 __________ ____ 7
Schneider v. New Jersey, 308 U. S. 147____________  3
Schneiderman v. United States, 320 U. S. 118_______ 15
Stromberg v. California, 283 U. S. 359 ___ ___________ 8
Terminello v. Chicago, 337 U. S. 1 _________________ 8
Thomas v. Collins, 323 U. S. 516_________________  3
Thornhill v. Alabama, 310 U. S. 88________________ 8
United States v. Carolene Products Co., 304 U. S. 144 3
United States v. Josephson, 165 F. (2d) 82 (C. C. A.

2nd, 1947) _________________________________  12
West Virginia Board of Education v. Barnette, 319

U. S. 624 _______________________________ ___  3
Whitney v. California, 274 U. S. 357 _______________  7
Winters v. New York, 333 U. S. 507 ____      12

M isc e lla n e o u s

Chafee, Freedom of Speech (1942) _______________15,17



IN THE

Court of Appeals of Maryland
October Term, 1949

No. 107

H all H a m m o n d , Attorney General of the State of 
Maryland, et al.,

Appellants,
vs.

H . C arrington  L ancaster , et al.,
Appellees.

A P P E A L  PR O M  T H E  C IR C U IT  CO U RT N O . 2  OF B A LTIM O R E CITY

( S h e r b o w , J.)

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE.

Statement of Interest of the National Association 
for the Advancement of Colored People.

The National Association for the Advancement of 
Colored People is an organization which for the past forty 
years has unceasingly directed its entire efforts toward 
improvement in living conditions of the millions of colored 
citizens of the United States. The most important phase 
in this program has been a struggle directed to secure in 
reality for the Negroes those rights which are theoretically 
theirs under the Constitution of the United States.



2

As a necessary corollary to this program the National 
Association for the Advancement of Colored People 
must concern itself with any threat to weaken the con­
stitutional guarantees, for such weakening must necessarily 
imperil its fundamental program. This statute presents 
such a threat for it is an unwarranted abridgement of the 
constitutional freedoms of all people. The National Asso­
ciation for the Advancement of Colored People files this 
brief as amicus curiae, for we feel that in order to preserve 
the freedom of colored people, we must necessarily fight to 
preserve the freedom of all people.

Statem ent of the Case.

The appellees in the Court below, the Circuit Court No. 
2 of Baltimore City, filed a Bill of Complaint praying that. 
Chapters 86 and 310 of the Acts of 1949 of the General 
Assembly of Maryland be declared unconstitutional in their 
entirety. Chapter 86 is known as the Subversive Activities 
Act of 1949 and Chapter 310 is a re-enactment of the Sub­
versive Activities Act in the form of an emergency law. 
Appellants demurred to the Bill of Complaint. The Court 
below overruled the demurrers and held the chapters un­
constitutional. Appellants appealed from the decree over­
ruling the demurrers. The National Association for the 
Advancement of Colored People secured this Court’s per­
mission on the 8th day of November, 1949 to file this brief 
as amicus curiae.



3

A R G U M E N T .

I.

The Subversive Activities Act abridges the consti­
tutional guarantees of freedom of speech and assembly.

As a preface to all thinking on the question, it must he 
pointed out that when the constitutional validity of a stat­
ute restricting civil liberties is drawn in question, the nor­
mal presumption of constitutionality adhering to most 
legislation is no longer operative. Bridges v. Wixon, 326 
U. S. 135, 165; Thomas v. Collins, 323 U. S. 516, 529; West 
Virginia Board of Education v. Barnette, 319 IT. S. 624, 638; 
United States v. Carotene Products Co., 304 IT. 8. 144, 152.

This rule, which makes a distinction between statutes 
affecting civil liberties and those affecting economic rights 
and privileges, has had its most frequent application where 
governmental restrictions on freedom of speech, press or 
assembly are involved. In Schneider v. New Jersey (Town 
of Irvington), 308 U. S. 147,161, the United States Supreme 
Court said:

‘ ‘ This Court has characterized freedom of speech 
and that of the press as fundamental personal rights 
and liberties. (Citing eases.) This phrase is not an 
empty one and was not lightly used. It reflects the 
belief of the framers of the Constitution that exer­
cise of these rights lies at the foundation of free 
government by free men. It stresses, as do many 
opinions of this Court; the importance of preventing 
the restriction of enjoyment of these liberties. In 
every case therefore, where legislative abridgement 
of the rights is asserted, the Courts should be astute 
to examine the effect of the challenged legislation. 
Mere legislative preferences or beliefs respecting 
matters of public convenience may well support



4

regulations directed at other personal activities, but 
be insufficient to justify such as diminishes the exer­
cise of rights so vital to the maintenance of demo­
cratic institutions.”

Where a statute seeks to restrict freedom of speech and 
assembly, the underlying issue is whether the legislature 
can prohibit utterances having a bad tendency to bring 
about unlawful acts, no matter how remote, or whether it 
can prohibit only those words which are a direct incitement 
to unlawful acts. In other words, can a state legislature 
enact- into law the “ bad tendency” test or is the “ clear and 
present danger” test to be our guide in the interpretation 
of the scope and meaning of the First Amendment ? A dis­
cussion of the political and social good resultant in the 
application of the “ clear and present danger” rule and the 
danger to freedom and democracy inherent in the applica­
tion of the “ bad tendency” test is out of place here. Yet, 
Milton, Mill, Chafee and United States Supreme Court 
Justices H o lm es , B ra n d eis  and Cardozo have long wrestled 
with the problem, and their thinking has contributed much 
to the present day interpretation of the constitutional 
guarantees which the 1st Amendment, and by incorporation, 
the 14th Amendment secure.

It is submitted that the instant statute is bad because it 
has enacted into law the “ bad tendency” test rather than 
the clear and present danger rule: Let us look at the stat­
ute.

2(d) assist in the formation or participate in the man­
agement or to contribute to the support of any 
subversive organization or foreign subversive or­
ganization knowing said organization to be a sub­
versive organization or a foreign subversive or­
ganization ;



5

3. It shall be a felony for any person after June 1, 
1949, to become, or after September 1, 1949 to re­
main a member of a subversive organization or a 
foreign subversive organization knowing said or­
ganization to be a subversive organization or for­
eign subversive organization. Any person who 
shall be convicted by a court of competent juris­
diction of violating this section shall be fined not 
more than Five Thousand Dollars ($5,000), or im­
prisoned for not more than five (5) years, or both, 
at the discretion of the court.

4. Any person who shall be convicted by a court of 
competent jurisdiction of violating any of the pro­
visions of Sections 2 and 3 of this Article, in addi­
tion to all other penalties therein provided, shall 
from the date of such conviction be barred from

(a) holding any office, elective or appointive, or any 
other position of profit or trust in or employment 
by the government of the State of Maryland or of 
any agency thereof or of any county, municipal 
corporation or other political sub-division of said 
State;

(b) filing or standing for election to any public office 
in the State of Maryland; or

(c) voting in any election held in this State.
10. No subversive person, as defined in this Article, 

shall be eligible for employment in, or appointment 
to any office, or any position of trust or profit in the 
government of, or in the administration of the 
business of this State, or of any county, munic­
ipality, or other political sub-division of this State.

13. Every person, who on June 1, 1949 shall be in the 
employ of the State of Maryland or of any political 
subdivision thereof, other than those now holding- 
elective office shall be required on or before August 
1, 1949, to make a written statement which shall



6

contain notice that it is subject to the penalties of 
perjury, that he or she is not a subversive person 
as defined in this Article, namely, any person who 
commits, attempts to commit, or aids in the com­
mission, or advocates, abets, advises or teaches by 
any means any person to commit, attempt to 
commit, or aid in the commission of any act in­
tended to overthrow, destroy or alter, or to assist 
in the overthrow, destruction or alteration of, the 
constitutional form of the Government of the 
United States, or of the State of Maryland, or any 
political sub-division of either of them, by revolu­
tion, force, or violence; or who is a member of a 
subversive organization or a foreign subversive 
organization, as more fully defined in this Ar­
ticle. * * *

All of these sections must be read in conjunction with the 
definitions set out in section 1.

As a result of these sections organizations are criminal 
and persons belonging to them guilty of a crime where such 
organizations “ advocate” , “ advise” , or “ teach the over­
throw, destruction or alteration of the constitutional form 
of government of the United States * * # , by revolution, 
force or violence”. No place in the government or teaching 
post is open to a “ subversive person” as defined in the act. 
Surely these sections are a direct and unwarranted abridge­
ment of freedom of speech and assembly and place uncon­
stitutional conditions upon holding public office or teaching 
in the State of Maryland.

These sections proscribe words which merely advocate, 
regardless of their nature or the circumstances under which 
they are uttered. Penalties attach whether there is even 
the remotest likelihood of the utterances bringing about un­
lawful acts. A man or an organization can be punished 
merely because the words used happen to conform to a cer­



7

tain proscribed pattern. They are being punished not for 
what they do, but for what they think. Speech is dangerous 
only when it incites to unlawful acts. When it falls short 
of incitement, it is merely the voicing of an opinion which 
falls within the allowable area of free discussion. It is 
submitted, therefore, that these sections of the act disre­
gard the “ clear and present danger” test as laid down by 
the Supreme Court of the United States in Schenck v. 
United States, 249 U. S. 47.

‘ ‘ The question in every case is whether the words 
used are used in such circumstances and are of such 
a nature as to create a clear and present danger that 
they will bring about the substantive evils that Con­
gress has a right to prevent. It is a question of 
proximity and degree.”

This test was ably clarified by Justice B r a n o eis , con­
curring in Whitney v. California, 274 U. S. 357, 376.

“ Fear of serious injury cannot alone justify sup­
pression of free speech and assembly. Men feared 
witches and burned women. It is the function of 
speech to free men from the bondage of irrational 
fears. To justify suppression of free speech there 
must be reasonable ground to fear that serious evil 
will result if free speech is practiced. There must be 
reasonable ground to believe that the danger appre­
hended is imminent. There must be reasonable 
ground to believe that the evil to be prevented is a 
serious one. Every denunciation of existing law 
tends in some measure to increase the probability 
that there will be violation of it. Condonation of a 
breach enhances the probability. Expressions of ap­
proval add to the probability. Propagation of the 
criminal state of mind by teaching syndicalism in­
creases it. Advocacy of lawbreaking heightens it 
still further. But even advocacy of violation, how­



ever reprehensible morally, is not a justification for 
denying free speech where the advocacy falls short, 
of incitement and there is nothing to indicate that 
the advocacy would be immediately acted on. The 
wide difference between advocacy and incitement, 
between preparation and attempt, between assem- 
blying and conspiracy, must be borne in mind. In 
order to support a finding of clear and present dan­
ger it must be shown either that immediate serious 
violence was to be expected or was advocated, or that 
the past conduct furnished reason to believe that 
such advocacy was then contemplated.”

Nor, can the “ clear and present dang*er” test be read 
into these sections, notwithstanding the words “ clear and 
present danger” are used in section 2(b) of the Act. The 
express inclusion of the words there results in their implied 
exclusion from the sections in question.

It is submitted that sections 2(d), 3, 4, 10 and 13 result 
in an unwarranted abridgement of the freedoms guaranteed 
in the First Amendment. The United States Supreme Court 
has taken the position that although the rights of freedom 
of speech and assembly are not absolute, the Fourteenth 
Amendment protects them from impairment through state 
action Gitlow v. New York, 268 U. S. 652, unless the speech 
or assemblage sought to be proscribed constitutes a clear 
and present danger that will bring about the substantive 
evils that the legislature has a right to prohibit. Schenck 
v. United States, supra; Herndon v. Lowry, 301 U. S. 242; 
Thornhill v. Alabama, 310 U. S. 88; Stromberg v. California, 
283 U. S. 359; DeJonge v. Oregon, 299 U. S. 353; Bridges v. 
California, 314 U. S. 252; Terminello v. Chicago, 337 U. S. 1.

In this connection appellants rely on the cases of Gitlow 
v. United States, supra, and Whitney v. California, supra.



9

In these cases the Court speaking through Justice S anford  
categorized state statutes in two classes:

(a) a statute which forbids certain action and which is 
used against a defendant on the grounds that he has 
used language to bring about the forbidden acts;

(b) a statute in which the legislature has defined cer­
tain types of language and has considered the use 
of such language punishable.

The appellants contend that the instant statute proscribes 
certain defined language and therefore is protected by the 
rule in the Gitlow case that where the constitutionality of 
such a statute is drawn in question the Court must give 
great weight to the legislative decision that the proscribed 
utterances in themselves are dangerous, and that the “ clear 
and present danger” test cannot be applied to those words 
which fall into the pattern defined.

The implications of the Gitlow and Whitney cases, stand­
ing alone, are that utterances no matter how trivial, no 
matter how innocuous the circumstances under which they 
are uttered, no matter how remote the tendency that they 
will bring about the forbidden evils, are open to punish­
ment if they fit the pattern of speech defined in the statute. 
Thus, in times of hysterical fear, utterances could be deemed 
dangerous by a state legislature where no real danger exists, 
and the courts would be all but powerless to protect free­
dom of discussion which is the sine qua non of our way of 
life. See Palko v. Connecticut, 302 U. S. 319, 327; Thomas 
v. Collins, supra.

Although the Gitlow and Whitney cases have never been 
expressly overruled, their sweeping effect has in a great 
measure been curtailed if not nullified by later decisions of 
the United States Supreme Court.

In later free speech cases the Court has tacitly dis­
approved this “ bad tendency” test by the constant re­



10

iteration of the “ clear and present danger” rule. Termi- 
nello v. Chicago, supra; Bridges v. California, supra; Thorn­
hill v. Alabama, supra; Cantwell v. Connecticut, 310 IT. 8. 
296; Craig v. Harney, 331 U. S. 367; Herndon v. Lowry, 
supra; DeJonge v. Oregon, supra; Stromberg v. California, 
supra.

In Herndon v. Lowry, supra, at 258, the Court expressly 
noted the distinction between the types of statutes set out 
in the Gitlow case and then proceeded to exorcise the “ bad 
tendency” test from those statutes where the legislature 
had proscribed certain language as dangerous.

“ The power of a state to abridge freedom of 
speech and of assembly is the exception rather than 
the rule and the penalising even of utterances of a 
defined character must find its justification in a 
reasonable apprehension of danger to organised, 
government. * * * The limitation upon individual 
liberty must have appropriate relation to the safety 
of the state. Legislation which goes beyond this need 
violates the principle of the Constitution.” (Italics 
added.)

Certainly, in the instant statute where bare words regard­
less of their nature or the circumstances in which they are 
used can be punished, the legislature is purporting to pro­
hibit words without having as its justification “ a reasonable 
apprehension of danger to organized government ” .

In Stromberg v. California, supra, defendant was con­
victed under a statute which prohibited the display of a red 
flag, “ as a symbol or emblem of opposition to organized 
government” . Chief Justice H u g h es  delivered the opinion 
of the Court, and in terms of the “ clear and present 
danger” test declared the statute unconstitutional as an 
encroachment upon the area of allowable political discus­
sion. Language is not necessarily only written or spoken.



11

Speech is a symbolization of ideas; likewise a flag. To dis­
play a flag as a symbol of opposition to organized govern­
ment is no different than displaying a sign on which are 
written words advocating opposition to organized govern­
ment. We have, therefore, in the unconstitutional Oregon 
statute, in effect, a legislative determination that a certain 
and defined symbolization of ideas, or language, is danger­
ous. But the Court instead of applying the rule in the 
Gitlow case, used the “ clear and present danger” test to 
declare the statute unconstitutional.

In view of what has been said before, it is clear that this 
statute proscribes discussion before the clear and present 
danger limitation is reached. But even if this test were met 
the statute would at ill fall because its sweeping nature ap­
plies an effective brake upon desirable discussion. What 
man will feel free to speak or feel free to join an organiza­
tion where the slightest chance exists that his words or the 
literature of his organization might by some trick of fate 
fall into the pattern proscribed by the statute. For that 
reason even where the danger is sufficient to warrant a 
limitation of freedom of speech or assembly, the statute 
must be narrowly drawn to meet the supposed evil. Thorn­
hill v. Alabama, supra; Milk Wagon Drivers Union of Chi­
cago v. Meadowmoor Dairies, Inc., 312 IJ. S. 287. In this 
field, therefore, the activity regulated or prohibited—the 
substantive evil must be so clearly and specifically defined 
as to render its application to any other activity unlikely.

In several instances state courts reflecting current 
hysteria have been able to fit entirely innocuous activities 
of persons into the sweeping terms of statutes similar to 
the one in question here. Cf. DeJonge v. Oregon, supra; 
Fiske v. Kansas, 274 IJ. S. 380. The result of such deci­
sions can only be to create a medium of fear through which



12

controversial discussion is restrained. This danger is 
pointed up in the remarks of Justice Clarke, dissenting in 
United States v. Josephson, 165 F. (2d) 82, 93 (C. C. A. 2d, 
1947).

11 * * * the teaching of experience, after nearly three 
decades of a well-nigh pathological fear of ‘Com­
munism’ under constant investigation by Congress, 
O gden , The Dies Committee, 2d Rev. Ed. 1945, 14-37, 
might suggest that there was more to be feared from 
the fear itself than from the supposed danger.”

Closely linked to the narrowly drawn statute require­
ment is the rule which states that a deprivation of due1 
process of law exists where a statute punishing for an of­
fense is so vague and indefinite in its terms that it contains 
no reasonable standard of guilt. A man of common intelli­
gence cannot be required at peril of life, liberty or prop­
erty to speculate as to the meaning of a statute. Lametta 
v. United States, 306 IT. 8. 451; Winters v. New Yorlc, 333 
U. S. 507; Herndon v. Lowry, supra; Stromherg v. Cali­
fornia, supra; Connally v. General Construction Co., 269 
IT. S. 385.

In Connally v. General Construction Co., supra, it was 
stated:

‘ ‘ That the terms of a penal statute creating a new 
offense must be sufficiently explicit to inform those 
who are subject to it what conduct on their part will 
render them liable to its penalties, is a well rec­
ognized requirement, consonant alike with ordinary 
notions of fair play and the settled rules of law. 
And a statute which either forbids or requires the 
doing of an act in terms so vague that men of com­
mon intelligence must necessarily guess at its mean­
ing and differ as to its application, violates the first 
essential of due process of law.”



13

It is felt that various sections of the instant statute fall 
within the above rule and therefore constitute a depriva­
tion of due process.

Section 1 pertaining to definitions states:
“ ‘Subversive Organization’ means any organiza­

tion which engages in or advocates, abets, advises, 
or teaches, or a purpose of which is to engage in or 
advocate, abet, advise, or teach activities intended 
to overthrow, destroy or alter, or to assist in the 
overthrow, destruction or alteration of, the consti­
tutional form of the government of the United States, 
or of the State of Maryland, or of any political sub­
division of either of them, by revolution, force, or 
violence. ’ ’

Under the terms of this section an organization would be 
“ subversive” and its existence unlawful if it “ advocated” 
the ‘ ‘ alteration of the constitutional form of government of 
the United States * * * by r e v o lu t io n The word “ revo­
lution” is defined in Ballantine’s Law Dictionary (1948 
Ed.) 1142,

“ The word has been variously defined as a radical 
change or modification of the government (5 Tex. 34, 
75); the overthrow of an established political sys­
tem (Ballantine’s Law Dictionary); a fundamental 
change in government or in the political constitution 
of a country effected suddenly and violently, and 
mainly brought about by internal conditions (New 
Standard Encyclopedia); a radical change in social 
or governmental conditions; the overthrow of an 
established political system, generally accompanied 
by far-reaching social changes. See State v. Dia­
mond, 27 N. M. 477, 20 A. L. R. 1527, 1532, 202 Pac. 
Rep. 988.”

Thus a person or organization advocating the alteration 
of the constitutional form of government of the United 
States could be guilty of violating this statute if such ad­



14

vocacy were intense, inciting, or fervent. As Mr. Chief 
Justice H u g h e s  stated in Stromberg v. California, supra, 
the First Admendment was intended to protect:

‘ ‘ The maintenance of the opportunity for free 
political discussion to the end that government may 
be responsive to the will of the people and that 
changes may be obtained by lawful means, and op­
portunity essential to the security of the Republic, 
is a fundamental principle of our constitutional sys­
tem. A statute which upon its face, and as authori­
tatively construed, is so vague and indefinite as to 
permit the punishment of the fair use of this oppor­
tunity is repugnant to the guaranty of liberty con­
tained in the 14th Amendment.”

The same defect appears in the subsection defining 
“ subversive person” in section 1 and in section 2, subsec­
tion (a) and (b).

Section 3 makes it a felony for any person to be a men- 
ber of a “ subversive organization * * # knowing said or­
ganization to be a subversive organization” . More shall 
be said about this section later, but it is enough to point 
out here the ambiguity of the word “ knowing” . Must the 
knowledge be actual or constructive? Is every person put 
on notice to analyse the purposes of his respective organi­
zation in line with the definitions in the statute or may he 
wait until a judicial determination of “ subversiveness” .

Other words in this statute such as “ member” in sec­
tion 3 and “ security” in section 2(b) are words important 
to the enforcement of this statute, and are so loaded in their 
ambiguity that enforcement could easily go not only against 
the illegal but also against the merely objectionable.

Clearly this statute in its vagueness and uncertainty 
sets no reasonable standard of guilt and results in a de­
privation of due process of law.



15

II.

The Subversive Activities Act is violative of the due 
process clause of the Fourteenth Amendment in that it 
is a legislative enactment of the theory of guilt by asso­
ciation.

Section 3 of this act and section 10 when read in con­
junction with section 1 deprive all persons coming within 
their terms of due process of law under the Fourteenth 
Amendment in that, these sections embody the principle of 
guilt by association. That guilt is personal is a funda­
mental concept of our law. C h a e e e , Freedom of Speech 
(1942), 471-484. Where a statute seeks to hold a person 
criminally responsible not upon his own actions but upon 
the actions of others with whom he associates, it under­
mines this fundamental concept. Schneiderman v. United 
States, 320 U. S. 118; Bridges v. Wixon, supra; Cf. DeJonge 
v. Oregon, supra; see also Justice B eandeis  concurring, 
Whitney v. California, supra.

Section 3 states that, “ it shall be a. felony for any per­
son # # # to become, or * * * to remain a member of a 
subversive organization knowing said organization to be 
a subversive organization or foreign subversive organi­
zation” .

Section 10 states that,

“ no subversive person as defined in this article, shall 
be eligible for employment in, or appointment to any 
office, or any position of trust or profit in the gov­
ernment of, or in the administration of the business 
of this state, or of any county, municipality, or other 
political subdivision of this state.”



16

The Article in section 1 defines “ subversive person” as 
any person who inter alia “ is a member of a subversive 
organization or a foreign subversive organization” .

That both these sections aim to reach the person who is 
merely a member of an organization and to make member­
ship punishable per se is clear from the presence of sec­
tion 2, subdivision (c), which makes it a felony to conspire 
to violate the act. Certainly this conspiracy section covers 
the “ subversive” activities of the members of an organiza­
tion in violation of the act. Section 3 and the portions of 
sections 10 and 1 referred to above are totally unnecessary 
unless it was the intent of the framers to punish member­
ship alone without reference to actions or speech in further­
ance of the purposes of the organization.

Thus under this act a man is guilty merely because of 
his status as a member—what he says or does is not mate­
rial. What other members say or do is material. This is 
guilt by association in its most patent and abject form.

In the case of DeJonge v. Oregon, supra, defendant, a 
member of the Communist Party was convicted on the 
ground that he assisted in conducting a meeting of the Com­
munist Party at which the doctrine of criminal syndicalism 
was advocated. The meeting in fact was lawful and no 
criminal syndicalism was advocated. The evidence pre­
sented to secure the conviction was literature of the Com­
munist Party which advocated criminal syndicalism. Hence, 
all that defendant was convicted for was his presence at a 
meeting of a party which advocated criminal syndicalism. 
The Supreme Court reversed the conviction on the grounds 
that defendant’s right of freedom of assembly was abridged. 
It is apparent though that this decision is grounded on the 
concept that guilt is personal. The Supreme Court would 
not allow a conviction to stand where the defendant’s only



17

act was membership in and presence at a meeting of a party 
advocating the overthrow of the government.

In Schneiderman v. United States, supra, the concept of 
guilt by association was expressly rejected. This case in­
volved a proceeding to cancel defendant’s certificate of citi­
zenship on the grounds that defendant did not under the 
terms of the statute behave like a man of good moral char­
acter, attached to the principles of the Constitution of the 
United States, and well disposed to the good order and 
happiness of the same. The evidence on this question was 
that defendant was a member of the Communist Party. The 
Court rejected the evidence saying that membership qua 
membership was immaterial.

To say that section 3 cures itself of the defect of guilt 
by association by requiring knowledge of the member that 
the organization is “ subversive” in purpose is to attribute 
great power of analysis to the common man. The quandry 
of the liberal joiner is deftly stated by C h a f e e , Freedom of 
Speech (1942) at 475.

‘4 How many members of radical organizations can 
fairly be supposed to have known on June 28th, 1940, 
that their organization was within that new statute? 
After all, the purposes of an organization do not 
stand out like a sore thumb. One can read through 
the whole platform and campaign handbook of a 
party, without being sure what its real purposes are. 
They are concealed behind a printed compromise de­
signed to reconcile the widely divergent groups which 
make up any political party. Were the real purposes 
of the Republican Party in 1928 those of Andrew 
Mellon or Herbert Hoover or George Norris? As 
for the Democrats, remember the Madison Square 
Convention. What is true of the major parties is 
a fortiori true of radical organizations. A radical by 
his very nature tends to keep on splitting off. Bris-



18

senden’s book on the I.W.W. is largely a history of 
factional fights. How can any member of such an 
organization be sure precisely what it stands for! 
Joining the Communist Party is not like joining a 
cocktail party, where everybody knows its purpose.”

It must be noted that while section 3 contains the require­
ments of knowledge, no such requirement exists in sections 
10 and 1. A man under these sections can be barred from 
office on the grounds of membership alone.

In Bridges v. Wixon, supra, the Supreme Court de­
nounced the deportation statute on the ground that under 
it an alien was deportable if he was a member or an affiliate 
of an organization which advocated the overthrow of the 
government, and said,

‘ ‘ The statute does not require that an alien, to be 
deportable, must personally advocate or believe in 
the forceful overthrow of the Government. It is 
enough if he is a member or an affiliate of an organi­
zation which advocates such a doctrine. And in this 
case the Government admits that it has neither 
claimed nor attempted to prove that Harry Bridges 
personally advocated or believed in the proscribed 
doctrine. There is no evidence, moreover, that he 
understood the Communist Party to advocate violent 
revolution or that he ever committed or tried to com­
mit an overt act directed to the realization of such an 
aim.

“ The doctrine of personal guilt is one of the most 
fundamental principles of our jurisprudence. It 
partakes of the very essence of the concept of free­
dom and due process of law. Schneiderman v. United 
States, 320 U. S. 118, 154, 87 L. Ed. 1796, 1817, 63 
S. Ct. 1333. It prevents the persecution of the in­
nocent for the beliefs and actions of others. See 
Chafee, Free Speech in the United States (1941) pp. 
472-475.



19

“ Yet the deportation statute on its face and in 
its present application flatly disregards this rule. It 
condemns an alien to exile for beliefs and teachings 
to which he may not personally subscribe and of 
which he may not even be aware. This fact alone is 
enough to invalidate the legislation. Cf. Dejonge 
v. Oregon, 299 U. S. 353, 81 L. Ed. 278, 57 S. Ct. 255; 
Herndon v. Lowry, 301 IT. S. 242, 81 L. Ed. 1066, 57 S. 
Ct. 732; Whitney v. California, 274 IT. S. 357, 71 L. 
Ed. 1095, 47 8. Ct. 641.”

Conclusion.
W h erefore , fo r  reasons h erein above s ta ted , it  is 

resp ec tfu lly  p ra y e d  th a t th e  ju d g m en t of th e  lo w er  
cou rt should be sustained.

A rnold  H. S eixas,
T hubgood  M arsh a ll ,
R obert L. C arter ,

Attorneys for the National Asso­
ciation for the Advancement of 
Colored People as Amicus Curiae.



L aw yers P ress, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300