Pennsylvania v. Nelson/Dissent Reed

by Stanley Forman Reed

United States Supreme Court

350 U.S. 497

Pennsylvania  v.  Nelson

 Argued: Nov. 15, 16, 1955. --- Decided: April 2, 1956

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 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, 18 U.S.C.A. § 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 In those cases this Court has ruled that state legislation is superseded when it conflicts with the comprehensive regulatory scheme and purpose of a federal plan.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, 786, 62 S.Ct. 491, 86 L.Ed. 754. 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 pages 224 and 233, 67 S.Ct. at pages 1148, 1149, 1153, 91 L.Ed. 1447.

But the federal sedition laws are distinct criminal statutes that punish willful advocacy of the use of force 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:

'To interfere with the penal laws of a State, where they * * * have for their sole object the internal government of the country, is a very serious measure, which Congress cannot be supposed to adopt lightly, or inconsiderately. * * * It would be taken deliberately, and the intention would be clearly and unequivocally expressed.' Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 443, 5 L.Ed. 257.

Moreover, it is quite apparent that since 1940 Congress has been keenly aware of the magnitude of existing state legislation proscribing sedition. It may be validly assumed that in these circumstances this Court should not void state legislation without a clear mandate from Congress. ^[4]

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, 61 S.Ct. 399, 85 L.Ed. 581, in the Rice case, 331 U.S. at page 230, 67 S.Ct. at page 1152. 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]

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.' 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. State of Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287. In Gilbert the federal interest in raising armies did not keep this Court from permitting Minnesota to punish persons who interfered with enlistments (id., 254 U.S. at page 326, 41 S.Ct. 125), 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, 254 U.S. at page 331, 41 S.Ct. at page 127. Minnesota made it unlawful to advocate 'that men should not enlist in the military or naval forces of the United States.' It was contended, 254 U.S. at pages 327-328, 41 S.Ct. at page 126, that the power to punish such advocacy was "conferred upon Congress and withheld from the States." This Court ruled against the contention, saying:

'An army, of course, can only be raised and directed by Congress; in neither has the state power, but it has power to regulate the conduct of its citizens and to restrain the exertion of baleful influences against the promptings of patriotic duty to the detriment of the welfare of the nation and state. To do so is not to usurp a national power; it is only to render a service to its people, * * *.' Id., 254 U.S. at pages 330-331, 41 S.Ct. at page 127. ^[8]

Thirdly, the Court finds ground for abrogating Pennsylvania's antisedition statute because, in the Court's view, the State's administration of the Act may hamper the enforcement of the federal law. Quotations are inserted from statements of President Roosevelt and Mr. Hoover, the Director of the Federal Bureau of Investigation, to support the Court's position. But a reading of the quotations leads us to conclude that their purpose was to gain prompt knowledge of evidence of subversive activities so that the federal agency could be fully advised. We find no suggestion from any official source that state officials should be less alert to ferret out or punish subversion. The Court's attitude as to interference seems to us quite contrary to that of the Legislative and Executive Departments. Congress was advised of the existing state sedition legislation when the Smith Act was enacted and has been kept current with its spread. ^[9] No declaration of exclusiveness followed. In this every case the Executive appears by brief of the Department of Justice, amicus curiae. The brief summarizes this point:

'The administration of the various state laws has not, in the course of the fifteen years that the federal and state sedition laws have existed side by side, in fact interfered with, embarrassed, or impeded the enforcement of the Smith Act. The significance of this absence of conflict in administration or enforcement of the federal and state sedition laws will be appreciated when it is realized that this period has included the stress of wartime security requirements and the federal investigation and prosecution under the Smith Act of the principal national and regional Communist leaders.' ^[10] Id., at 30-31.

Mere fear by courts of possible difficulties does not seem to us in these circumstances a valid reason for ousting a State from exercise of its police power. Those are matters for legislative determination.

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, 18 U.S.C.A., which Title codifies the federal criminal laws. Section 3231 of that Title provides:

'Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.'

That declaration springs from the federal character of our Nation. It recognizes the fact that maintenance of order and fairness rests primarily with the States. The section was first enacted in 1825 and has appeared successively in the federal criminal laws since that time. ^[11] This Court has interpreted the section to mean that States may provide concurrent legislation in the absence of explicit congressional intent to the contrary. Sexton v. People of State of California, 189 U.S. 319, 324-325, 23 S.Ct. 543, 545, 47 L.Ed. 833. The majority's position in this case cannot be reconciled with that clear authorization of Congress.

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.

Notes

1. No problem of double punishment exists in this case. See the Court's opinion, 350 U.S. 500, 76 S.Ct. 479, and its last paragraph, 350 U.S. 509, 510, 76 S.Ct. 484. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314; The Federalist, No. 32. Cf. Houston v. Moore, 5 Wheat. 1, statement at page 22 with that at pages 44-45, 5 L.Ed. 19.
2. Hunt, Federal Supremacy and State Anti-Subversive Legislation, 53 Mich.L.Rev. 407, 427-428; Note, 55 Col.L.Rev. 83, 90.
3. Gilbert v. State of Minnesota, 254 U.S. 325, 328-333, 41 S.Ct. 125, 126-128, 65 L.Ed. 287; Reid v. State of Colorado, 187 U.S. 137, 148, 23 S.Ct. 92, 96, 47 L.Ed. 108; Sinnot v. Davenport, 22 How. 227, 243, 16 L.Ed. 243; Fox v. State of Ohio, 5 How. 410, 432-435, 12 L.Ed. 213.
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, 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, Penal Law, McK.Consol.Laws, c. 40, § 160 et seq. 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, and the New York Act may be read in Gitlow v. People of State of New York, 268 U.S. 652, 654-655, 45 S.Ct. 625, 626, 69 L.Ed. 1138. 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.
5. In Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers of America v. Wisconsin Employment Relations Board, 315 U.S. 740, 749, 62 S.Ct. 820, 825, 86 L.Ed. 1154, we said:
6. Such efforts may be punishable crimes. Dennis v. United States, 341 U.S. 494, 508-510, 71 S.Ct. 857, 866-868, 95 L.Ed. 1137.
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, D.C., 106 F.Supp. 635, 641.
8. Mr. Justice Brandeis, dissenting, emphasized the ruling here applicable thus:
9. See note 4, supra.
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.'
11. 4 Stat. 115, 122-123; 18 U.S.C.A. § 3231 (Historical and Revision Notes).