Page images
PDF
EPUB
[blocks in formation]

Enclosed pursuant to your oral request to representatives of the Criminal Division is a Department of Justice memorandum analyzing the relationship between 18 U.S.C. 2385, the Smith Act, and 18 U.S.C. 2383 and 2384, with particular attention to the question whether there would be a loss of prosecutive ability if the former statute were repealed.

Your Subcommittee's staff has also asked to be advised whether in the view of the Department of Justice it would be appropriate to repeal 18 U.S.C. 2386, a complex registration statute applicable primarily to organizations an aim of which is the forcible overthrow of the government of the United States or a State or political subdivision thereof. To the best of our knowledge there has never been a successful prosecution under this law. Moreover, the statute has, in effect, been nullified by judicial rulings on similar legislation, which indicate that the provisions of 18 U.S.C. 2386 are in conflict with the Fifth Amendment privilege against compulsory self-incrimination. See, e.g., Albertson v. SACB, 382 U.S. 70 (1965); Communist Party v. United States, 384 F.2d 957 (D.C. Cir. 1967). Accordingly, in our judgment, it would be appropriate to repeal 18 U.S.C. 2386 as unenforceable.

[blocks in formation]

Comparison of 18 U.S.C. § 2383 (Rebellion or Insurrection) and $ 2384 (Seditious Conspiracy) With $2385. (the Smith Act)

This memorandum addresses the question of whether 18 U.S.C. § 2383, inciting or engaging in rebellion or insurrection, and 18 U.S.C. § 2384, seditious conspiracy, when taken together substantially enable the government to reach the same kinds of activity as covered by 18 U.S.C. $ 2385, the Smith Act, so that if the Smith Act were abolished and sections 2383 and 2384 retained, there would be no impairment of the government's ability to prosecute activity aimed at the forcible overthrow of the government.

Discussion

Generally, it can be said that all three statutes are concerned with averting the same kind of danger efforts to overthrow the government by force. C. 45 C.J.S., Insurrection and Rebellion $ 2. But the wording of each statute is different and each would seem to be aimed at particular kinds of activity. The most obvious difference between the three is that section 2383 prohibits only a substantive offense; it has no conspiracy clause. Any conspiracy to incite or engage in a rebellion or insurrection would have to be prosecuted under the general conspiracy statute, 18 U.S.C. § 371. On the other hand, section 2384 is only a conspiracy statute, and has no provision for a substantive offense. The Smith Act, however, prohibits not only the substantive violation of the Act, but conspiracy to violate the Act as well.

The penalty provisions of § 2383 are much less severe than those of § 2384 and § 2385. Violations of § 2383 are punishable by 10 years imprisonment and/or $10,000, and conspiracy to violate that statute under section 371 is

punishable by 5 years and/or $10,000.

In 1956, following the attack on the House of Representatives by Puerto Rican terrorists, Congress voted to increase the penalties for seditious conspiracy and advocating the forcible overthrow of the government. Previously, section 2384 carried a sentence of six years and/or $5,000, and section 2385 a sentence of 10 years and/or $10,000. The new penalties provide for a possible prison term of twenty years and/or a fine of $20,000. No change was made in the penalties for violating section 2383. 1956 U.S. Code Cong. and Ad. News, 3437.

Indeed, it would appear that section 2383 has largely gone ignored since the Civil War by both Congress and the courts. Except for a few minor changes, it has not been amended since it was originally passed in 1862, and the last reported cases that directly cite it came down in the 1860's. See, 18 U.S.C.A. § 2383.

Substantively, section 2383 prohibits inciting or engaging in a rebellion or insurrection against the authority of the United States or its laws. The Smith Act prohibits advocating or teaching the desirability of the forcible overthrow of the government. The first question to be addressed is whether advocacy and teaching under the Smith Act are substantially the same as incitement under section 2383.

Incitement connotes a call to immediate action, and the Supreme Court has recognized in Smith Act prosecutions that to use the specific word "incite" in jury instructions might confuse the jury and cause it to believe that the defendant was not guilty if he advocated future conduct. Yates v. United States, 354 U.S. 298 (1957). However, it is equally clear that the words "advocate" and "teach" are not used in their dictionary sense. Yates, supra. In Dennis v. United States, 341 U.S. 494 (1951), the Smith Act was

challenged on First Amendment, free speech grounds. The court held that where advocacy and teaching present a clear and present danger of bringing about the substantive evil that Congress was trying to avoid, the words are not protected by the First Amendment. This test required teaching or advocating action, not merely the adoption of abstract ideas. Such action could occur in the future, but there had to be a close connection between the words used and the conduct advocated. In Dennis, the jury had been instructed that

it must find that the defendant's words were reasonably calculated to incite the forcible overthrow of the government. In Yates, the court held that even though the specific word incite need not be used in jury instructions, the defendant must have at least used the language of incitement. See also, United States v. Silverman, 248 F.2d 671 (2d Cir. 1957) (language must be reasonably calculated to incite violent overthrow of the government, now or in the future).

Dennis and Yates set the constitutional standard for determining when advocacy and teaching are no longer protected speech. When advocacy becomes inciteful language, it loses its First Amendment protection. In this context, incite is not just a call to immediate action, but a call to future action as well. There is no reason why incite under section 2383 could not be interpreted as broadly, and jury confusion avoided by proper instructions.

It should be noted that there is also no reason why such incitement under 2383 could not be in the form of publications and circulars, which is explicitly prohibited under the Smith Act. Cf. Wells v. United States, 257 F. 605 (9th Cir. 1919) (seditious conspiracy to circulate publications urging forcible resistance to Selective Draft Act).

The words insurrection and rebellion, in section 2383, however, may carry different connotations than the words overthrow through force or assassination under the Smith Act. A rebellion is generally considered an organized

movement against the government, often involving the taking
over of territory. Prize Cases, 67 U.S. 635 (1862). An
insurrection may never rise to the level of an organized
rebellion or have any hope of success because its numbers
are so small, but it is nevertheless the earliest stage
of civil war. Prize Cases, supra. It could well be argued
that inciting a lone gunman or terrorist organization to
assassinate a public official in an attempt to overthrow
the government would be covered by the Smith Act, while such
activity might not be inciting an insurrection under section
2383. Cf. Pan American Airways, Inc. v. Aetna Casualty and
Surety Co., 368 F. Supp. 1098, 1124 n.30 (S.D. N.Y. 1973),
affd. 505 F.2d 989 (2d Cir. 1974).

Moreover, an insurrection or rebellion necessarily involves citizens or subjects of a government. Prize Cases, supra., Black's Law Dictionary, 4th ed. (1968). While a subject is not necessarily a citizen, there is a close connection between being a subject and the idea of citizenship and physical residence of an individual in a country. The Pizzaro, 15 U.S. 227 (1817), United States v... Chong Sam, 47 F. 878 (E.D. Mich. 1891). Arguably, one who incites nonsubjects to invade or attempt to overthrow the government would not be inciting an insurrection or rebellion, whereas such activity would be covered under the Smith Act. The only limitation on the application of the Smith Act where there is incitement to forcibly overthrow the government is jurisdiction.

Seditious conspiracy under section 2384 also presents areas of differences and similarities when compared with the Smith Act. Both the Smith Act and section 2384 are aimed at averting the same general types of dangers. Section 2384 does, however, set out a larger list of substantive evils than does the Smith Act. Probably a broad interpretation of the Smith Act could reach most of these activities, but some, such as conspiracy to forcefully resist the authority of the government or execution of the laws, might not be reachable. Cf. Wells, supra, United States v. Lebron, 222 F.2d 531 (2d Cir. 1955).

« PreviousContinue »