Evening star., 1950-11-12

leuC mana 10 Sucn an exGeuQ CIldt
dicated how it feels about the
Smith Act. especially on constitu-
tional issues.
A Los Angeles man and a Detroit
resident received prison terms in
other prosecutions under the
Smith Act but they did not appeal
to the Supreme Court.
Provisions of Act
Prior to the Communist leaders
trial in New York, the cases
brought into court usually tangled
on so many other points that they
offered no well-deflned basis for
testing constitutionality of the
teach and advocate" issue, as dis
tinct from overt acts.
The Smith Act also makes it a
crime to advise disloyalty or
mutiny in the armed forces. or to
publish or distribute written or
printed material to that end. The
section principally affecting the II
Communist leaders provides crimi-
nal penalties for persons who.
Organize or help to organize
any society, group or assembly OF
persons who teach. advocate or
encourage the overthrow or de-
struction of any Government in
the United States by force or vio-
lence; or to be or become a mem
ber of, or affiliate with, any such
group, society or assembly Of
persons, knowing the purpose
thereof"
The jury in the New York trial
repeatedly heard Judge Medina
declare that the Communist Party
as such was not on trial. A unani-
nous opinion Of the Court of Ap-
peals said the same thing.
Upholding constitutionality Of
the Smith Act and it's application
to the II defendants, the opinion
explained that the Smith Act
neither outlawed the Communist
Party nor prohibited beliefs or
prophecy"
The main and concurring opin-
ions found, however, that there
was abundant" evidence to sup
port verdict that the II Defend
ants violated the Smith Act by
conspiring to teach and advocate
overthrow of the Government by
force and violence. The evidence,
according to the court opinions,
included Communist Party docu-
ments. The defendants them
selves, the opinions noted. were all
members of the National Board Of
the Communist Party.
Arguments Narrowed
The convictions Immediately
raised a question whether. if the
Smith Act is sustained by the Su-
preme Court, the Justice Depart
ment could move directly against
the Communist Party by contend
ing that it seeks violent overthrow
OF tIle Government.
Some officials have said private
ly that a. Supreme Court ruling
against the Communist leaders
attack on validity of the Smith
Act would vastly help the Govern
ment to control Communist action
organizations and fronts. The
same might apply to the problem
of handling individual American
Communists the Government
might suspect as being subversive.
While the Communist leaders
won an important round in OBJ
tanning Supreme Court review,
they apparently lost a battle when
the court narrowed the arguments
to constitutional issues. If the
court invalidates the Smith Act,
the Communists will have major
triumph. In such an event it
won't make any difference that
the court refused to consider their
complaints of unfairness and
errors by Judge Medina.
The Supreme Court has often
demonstrated a strong reluctance
to declare law unconstitutional
if any reasonable doubt exists that
1t clearly violates the Constitution.
The tribunal also generally avoids
passing on constitutionality if the
issue can be decided on some other
appropriate ground.
Thus, petitioner who rests his
case mainly, if not entirely, on a
constitutional question, frequently
stands on thin ice, attorneys say.
Historic Decision
An unusual thing about the case
to be argued December 4 is that
it will be confined to constitutional
considerations and that the JUS
tice Department and the Com
munist petitioners seem willing to
risk and rest their fight within
those limits.
The historic session unquestion-
ably will bring forth much Discus
sion of history, national and judi
cial. Attorneys can be counted on
to tell-with their own emphasis
of the circumstances under which
the Smith Act became law. It
sprang from period of acute war
consciousness in the United States
and growing awarenesS of the
meaning of such phrases as fifth
column" and "blitz" and the un-
comfortable temporary partner
ship of Nazi Germany and Soviet
Russia.
Lawyers. also assuredly will re-
call the famous "clear and pres
ent danger" announcement Of
the late Justice Oliver Wendell
Holmes. And they are certain to
discuss the Court of Appeals opin-
ion in which Judge Learned Hand
last August declared that the
phrase was mot a slogan or shib-
boleth' to be automatically ap-
piled.
In other words, the Supreme