PROPOSED INTERNAL SECURITY ACT OF 1968 FRIDAY, MARCH 22, 1968 U.S. SENATE, SUBCOMMITTEE TO INVESTIGATE THE AND OTHER INTERNAL SECURITY LAWS Washington, D.C. The subcommittee met, pursuant to recess, at 10:30 a.m., in room 2228, New Senate Office Building, Senator Strom Thurmond, presiding. Present: Senator Thurmond. Also present: J. G. Sourwine, chief counsel; John R. Norpel, Jr., director of research; and Frank W. Schroeder, chief investigator. Senator THURMOND. The subcommittee will come to order. We have with us today one of the most distinguished and able Members of the Congress for a long period of years, and we wish he were back with us now. Our witness today is former Congressman Smith, known as Judge Smith. He is an able lawyer. He is a great patriot. He is a great American. We are delighted to have him with us. Judge Smith, I want to welcome you to the committee this morning. I want to thank you for your appearance here. We feel sure that you will make a splendid contribution to these hearings. Do you have a prepared statement which you would like to present? STATEMENT OF HON. HOWARD W. SMITH, FORMER REPRESENTATIVE, AUTHOR OF THE SMITH ACT Mr. SMITH. No. Senator THURMOND. Then I shall propound some questions. Mr. SMITH. I can make a statement or you can propound questions. Senator THURMOND. Judge, I would like to go back into the history of the Smith Act, so that it will be clear on the record why legislation was enacted, and what the intent of Congress was in so doing. My understanding is that you first introduced what was to become the Smith Act of 1939, but it was not until 1940 that the bill was enacted. Can you tell us a little about the circumstances at the time, what the purpose of the bill was, and perhaps why Congress was ready to enact it in 1940 but not the year before? Mr. SMITH. Yes, sir. I think perhaps I had better go back briefly to the origin of the idea of dealing with the general subject of sub version. 90-550-68-pt. 3 I was in the House, and on the Committee on Rules, which had jurisdiction over setting up committees of a select nature to investigate problems. There was a member here from New York. It was Sam Dickstein, and he had been very much disturbed about what he regarded as the Nazi influence in this country, and he had a resolution before our committee to set up a committee to investigate that particular subject. Our committee concluded that it should not be limited to just the Nazi business. We were then beginning to be alarmed by the Communist influence in the country. And we set up what was known as the Dies Committee. Martin Dies of Texas was a member at that time of the Rules Committee, and introduced a general resolution. Senator THURMOND. What year was that? Mr. SMITH. That must have been about 1936 or maybe 1937. He did quite a job, as you may remember, on the Communist question. The administration apparently was not too much disturbed about what was going on at that time. He didn't get too much encouragement. But he did a good investigating job, and turned up a lot of infor mation. After he had been investigating about a year I think it was, or maybe two, the leadership wanted to do away with the committee. I had been very much interested, and as a matter of fact I think I suggested that Martin Dies should offer this resolution, which he did. I thought it was about time some legislation was introduced, and I prepared what was known as the Smith Act, and took it to Martin and urged him to start some legislation on the subject, and he was reluctant about it, so that is the way I happened to introduce the Smith Act. There was considerable opposition. In fact, there has always been some resistance in the country from some good people who thought we were just persecuting aliens. We got it out of the Judiciary Committee and took it to the floor of the House, and we passed the bill in the House. It apparently didn't strike much of a spark in the Senate at that time. We couldn't get it moving out of the Senate until, my recollection is that when Hitler invaded Holland, and it then came out about his fifth column in that country that had enabled him to break the gates. Everybody over here got very much disturbed about subversion. The Senate then took the bill up and passed it, and it became law, and as a matter of fact the important part of it at that time seemed to be the alien registration portion of the bill. The Smith Act is usually referred to as the first title of it in the things that you are investigating, but it was important at that time to keep some surveillance over aliens in this country, and title 3 of the bill is the alien registration bill under which, at the time of Pearl Harbor, we had by that time gotten the registration act in full force and in pretty good shape, so that we had the location and so forth, and fingerprints of all aliens in the country. You are concerned, however, with title I of the act. I would like to read to you, and I have it here somewhere, the statement that I made at the time of what title I covered. You will recall that we had some subversive acts on the books. But as a matter of fact we didn't have any law at that time to control sub versiveness of our own citizens. And in explaining what the purpose of the act was, I made this brief statement which I will put in the record: I want to tell you what Title I does. We have heard a lot of talk here about abusing the poor aliens. The gentlemen who have been talking that way cannot complain about this section. We have laws against aliens who advocate the overthrow of the Government by force, but do you know there is nothing in the world to prevent the treasonable American citizen from doing so. He can advocate revolution, the overthrow of the Government by force, anarchy and everything else, and there is nothing in the law to stop him. This amendment makes it unlawful for any person, be he American citizen or alien, to advocate the overthrow of the Government of the United States by force and violence. I think that portion of the act has considerable relevance to conditions in this country at this time. I don't know whether I should go into that or not, but we read in the papers and we see on television these people who get up and proclaim that they are just about to start a revolution in this country, and that they are going to tear us up and throw us apart. I I called attention to that in an article something like a year ago expect, when this thing was more or less in its early stages, and wondered why we let people, citizens or aliens, get on the air and in the newspapers and tell the mobs that they must rise and overthrow this country by force and violence as soon as they can get the thing organized. I have seen no action on the part of the Government to enforce the law that has been on the books for 30 years. I was asked to comment on the proposed amendments in your bill to the Smith Act. I thought it was pretty plain, but the courts don't seem to think so. Senator THURMOND. I can propound some more questions, if you wish, and then if we haven't brought all that you have in mind, then you could add to that, if you would care for me to do so. Mr. SMITH. Would you like to question me now or later? Senator THURMOND. I thought I might do that, and then when I get through let you supplement with anything additional which you feel will be helpful. Mr. SMITH. All right. Senator THURMOND. The Smith Act, as it was originally passed, made it a crime for a person to commit any of three defined acts. The first was to knowingly or willfully advocate the overthrow by force or violence of any government in the United States. The second was to organize any society or group to teach or advocate the violent overthrow of any such government. The third was to be a member of, or affiliated with, any such society or group. Between 1940 and 1948 the legislative history shows that the Smith Act was invoked only twice. In 1941, 18 members of the Socialist Workers Party were convicted of conspiracy to violate the first two sections of the act; that is, to knowingly or willfully advocate the overthrow of the Government, and secondly, to organize a society for that purpose. These convictions were upheld. In 1942, 28 alleged pro-Nazis were indicted for conspiracy to violate section 1 of the act. They were brought to trial in 1944, but the judge died and no retrial was ever held. My question is this. Why do you think there were so few attempts to apply the Smith Act in this period? Mr. SMITH. Well, I just think that the Government wasn't as much disturbed about it as some of the people in Congress and some who had made a study of what was going on, and the landmark case on the subject was the case of Dennis. I think there were 11 of those tried by Judge Medina in the district court in New York. They were convicted and they went to the Supreme Court, as you well know, and the opinion rendered in that case by Chief Justice Vinson is really the landmark case that put it on the books, and it is very important, I think, to follow the reasoning of Justice Vinson in his opinion. Senator THURMOND. I will come to that a little later. Mr. SMITH. Yes. Senator THURMOND. The Supreme Court ruling in the Dennis case does not question the right of Congress to protect the Nation against subversive acts, but more importantly it rules precisely on the area of whether the Smith Act violated the first and fifth amendments to the Constitution. This matter is important to the present legislation, and I would like to quote the remarks of Chief Justice Vinson speaking for the Court in the Dennis case that you referred to, Dennis v. United States, and these were his words: The obvious purpose of the statute is to protect existing government not from change by peaceful and constitutional means but from change by violence, revolution, and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. *** The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflicts with the first and fifth amendments to the Constitution. Judge Smith, since you were the author of the Smith Act, would you say that the Chief Justice is here speaking clearly of the purpose of the act or would you care to elaborate further on it? Mr. SMITH. No. I think if you will read just about one page of Justice Vinson's dissertation on that subject, you get a very clear idea of what is a violation of the act. I have his opinion before me. He adopts the language of Judge Medina in the trial court, in which he instructed the jury that what was their object and what was their function was to hear the evidence and determine the one question of whether these accused belong to an organization that advocated the overthrow of the Government of the United States by force and violence when the opportunity seemed appropriate to do it. And he used the word "action," they advocated action. If they advocated action and the jury found that they did advocate action at a time when it was ripe to do it, then they performed their function, and the question of whether it presented under the clear and present danger law that had been laid down by a previous court, if it presented a clear and present danger that something would happen, then that was the function of the court to decide as a matter of law. So he confined it very closely in that case to the functions of the jury and the functions of the court, and took away from the jury the question of whether it was a clear and present danger. All they had to determine was that they were advocating action at the appropriate time, and if they found that, they found him guilty and the judge determined the other question. Senator THURMOND. I am glad you brought out that point. I might say that the defendants raised the issue of the famous doctrine of clear and present danger which had already been enunciated by Justice Holmes. Mr. SMITH. Yes. Senator THURMOND. And it is important to see how Justice Vinson responded to the argument. He said the doctrine could not be: crystallized into a rigid rule to be applied flexibly without regard to the circumstances of each case. Speech is not an absolute, and above and beyond control by the legislature, when its judgment subject to review here is that certain of speech are so undesirable as to warrant criminal sanction. Judge Smith, would you say that this opinion of the Court shows that it is thus clear that freedom of speech is not absolute and does not take precedence over the right of a nation to defend itself? Mr. SMITH. Yes. Now, it seems to me that Justice Vinson-and he didn't write one of these great long 50-page opinions, he put about all of what we need to know about the law in just about one or two pages, and that seems to me so clear and established, and subsequent courts have not interfered with that doctrine to any great extent. I would like to mention the Scales case, which seems to tighten up the proof. I think it weakens the legislation to some extent, the Scales case. I think this is an appropriate time. You asked me to express my views on your amendments to the Smith Act. Senator THURMOND. I might proceed with a few more questions here if you don't mind. Mr. SMITH. All right. Senator THURMOND. Judge Smith, I think we are in agreement that there must be limitations on free speech. I would like to quote further from the opinion of Justice Vinson in the Dennis case. He made these remarks: The damage which such attempts create both physically and psychologically to a nation make it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. I was just wondering if you agree with the then Chief Justice that "it is impossible to measure the validity of the limitations on free speech in terms of the probability of success or immediacy of the attempt." Mr. SMITH. I thought he did a pretty clear job on it. If we can just stick to those two or three pages of his opinion in the Dennis case, we wouldn't have to worry too much. Senator THURMOND. Now, at this point, Judge Smith, I would like to refer to the first amendment proposed by the omnibus bill before us in section 104. This first amendment as to the Smith Act adds the following words: "Without regard to the immediate provable effect of such action," whoever advocates the overthrow of the Government shall be fined $20,000 and so forth. My question is whether you think the words "without regard to immediate provable effect of such acts" adopts the judicial language in the Dennis case. Mr. SMITH. My only criticism of it, if it could be a criticism, is that, as I have said before, I think that the Vinson opinion in the Dennis case has laid down the doctrine so clearly and made it largely a ques |