We eleven defendants will prove that the very time when we allegedly began this menacing conspiracy we were in fact advocating and organizing all-out support to the Government of the United States. We will prove that all of us taught the duty of upholding the United States Government and of intensifying the anti-Axis war effort and we defendants will put in evidence the honorable war record of the 15,000 American Communists who, in accord with what we taught and advocated, served with the armed forces in the military defense of our country.

We will show with what peaceful intent we taught and advocated, amongst other things, to oppose American support to the unjust and criminal war against the Chinese people waged by the miserable Chiang Kai-shek, to oppose the civil war against the Greeks, waged by the monarchist-fascist puppet of the American masters, with the American people footing the bill, to oppose the Anglo-American oil lords against the new State of Israel, and the people of Indonesia, and to oppose the restoration of the German and Japanese monopolies and war potential under the new management of the American cartelists.

You will see that our Communist Party Constitution acknowledges not only that we learn from Marx and Lenin but that we owe much to and learn from the teachings of men like Thomas Jefferson, Abraham Lincoln, Frederick Douglass, William Sylvis, and Eugene V. Debs.

The prosecution asks this jury for what amounts to a preventative conviction, in order that we Communist leaders may be put under what the Nazis called protective custody. I ask the jury to weigh the prosecution's case against the proof we defendants will offer to establish that we have taught and advocated the duty and necessity to prevent the force and violence of Fascism, imperialists of war and Iynching and anti-Semitism. I ask you to weigh carefully our sincere offer of proof which demonstrates that we Communists are second to none in our devotion to our people and to our country, and that we teach and advocate and practice a program of peace, of democracy, equality, economic security, and social progress.

The Communist Party bases itself upon so-called scientific socialism, the theory and practice of so-called scientific socialism as appears in the writings of Marx, Engels, Lenin, and Stalin, therefore as interpreted by Lenin and Stalin who have specifically interpreted scientific socialism to mean that socialism can only be attained by the violent shattering of the capitalist state, and the setting up of a dictatorship of the proletariat by force and violence in place of that state. In the United States this would mean that the Communist Party of the United States is basically committed to the overthrow of the Government of the United States as set up by the Constitution of the United States.

Judge Medina not only bore a marked resemblance to actor Adolphe Menjou; like Menjou, he was a consummate actor. From the outset he assumed the star role in the proceedings. Evidently believing that the prosecution could not produce any evidence to back up the charge on which we were indicted, he proceeded to prosecute us on a charge which he dreamed up himself: we and our lawyers were supposed to be conspiring to obstruct justice by dragging out the trial-a charge which the U.S. Supreme Court rejected.

Although our case was a hopeless one under the circumstances, the defendants made every mistake in the book. We permitted the trial to become a duel between judge and defense; it is difficult enough to get a federal jury to vote against the government prosecutor, it will never vote against the judge. Medina baited and provoked our lawyers and they fell into the trap. With the press solidly behind the judge and against us, no matter what we did was reported in a bad light, and our defense tactics often made a bad situation worse.

If the contents of the book and these other pamphlets and documents of one kind or another, that were handed around, and people were told to study them and to teach other people what to do, and how they were to go around and do the things that have been testified to here. I can scarcely believe that it is trying a book. it is trying those persons who used the book and other means to allegedly commit a crime, and that is part of the paraphernalia of the crime.

At the outset I want to emphasize what the crime involved in this case is, and what it is not. These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date. The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids.

But let us assume, contrary to all constitutional ideas of fair criminal procedure, that petitioners although not indicted for the crime of actual advocacy, may be punished for it. Even on this radical assumption, the other opinions in this case show that the only way to affirm these convictions is to repudiate directly or indirectly the established "clear and present danger" rule. This the Court does in a way which greatly restricts the protections afforded by the First Amendment. The opinions for affirmance indicate that the chief reason for jettisoning the rule is the expressed fear that advocacy of Communist doctrine endangers the safety of the Republic. Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers. To the Founders of this Nation, however, the benefits derived from free expression were worth the risk. I have always believed that the First Amendment is the keystone of our Government, that the freedoms it guarantees provide the best insurance against destruction of all freedom.

So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection.

Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions, and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.

Let's examine some of the implications of the verdict. The men were indicted under the Smith Act, which was passed in 1940. It went through the Senate without a roll call, and only four votes were registered against it in the House. The verdict in judge Medina's court will be tested before the Supreme Court, and that body will have to try to determine the constitutional limitations that may be placed upon advocacy of change through violence.

There are some things that can be concluded from the verdict: If you conspire, as these men were convicted of conspiring, then you face a prison sentence and possible fine. The verdict means that there will be a determined campaign by the Communists to try to sell to the country the issues that were lost in the trial. It means that the eleven Communist leaders aren't going to be available to direct the affairs of the party for some time. The question arises as to whether the men who replace them will also be guilty of breaking the law. They could not automatically be judged guilty by virtue of their membership or official position in the Communist Party. The government would have to produce evidence, witnesses, documents and bring them before a jury as they did in this case. The verdict undoubtedly means Russian propaganda efforts to discredit our system of justice. But the verdict proves that under that system of justice, the accused can get a nine months' trial, plus a jury to hear the case - even if they are, as Prosecutor McGohey stated, "professional revolutionists."

But there are some things that this verdict does not mean. It does not mean that membership in the Communist Party as such is illegal. The party is not outlawed. The verdict does not mean that you must read any specific books, talk as you will or peacefully assemble for any purpose other than to conspire to overthrow the government by force and violence. It does not mean that you are subject to legal action for saying things favourable to the Communist Party. Nothing in this verdict limits the citizen's right, by peaceful and lawful means, to advocate changes in the Constitution, to utter and publish praise of Russia, criticism of any of our political personalities or parties. You may, in short, engage in any action or agitation except that aimed at teaching or advocating the overthrow of the government by violence.

If this verdict is upheld by the Supreme Court, similar prosecutions may follow. But in each individual case it will be necessary for the government to prove, not only that the defendants were members of the Communist Party, but that they conspired to overthrow the government, and did so knowingly and wilfully.

One result of the verdict may be to convince a number of people that the Communists are not just another political party. In view of the mass of evidence produced in judge Medina's court, it will be pretty difficult in the future for anyone to maintain that he joined and worked for the Communist Party without really knowing that it advocated violent revolution. There have been many serious proposals to control, contain or outlaw the Communist Party in this country, efforts to hog-tie them without strangling our liberties with the loose end of the rope. It is both delicate and dangerous business. We can't legislate loyalty. But nevertheless the question of the control of subversion is one of the most important confronting this country.

That the jury made a mockery of the months of evidence and came to its verdict of guilty almost instantly tells more about the nature of this trial than a hundred pages of legal evidence. What fell to us - and by us, I mean those of us in the arts - was the question of what we could do in the new conditions of anti-Communist propaganda created by the trial. It was not only the twelve defendants in Foley Square who were under attack; in every trade union where the Communist Party had any influence, Communists and suspected Communists were being attacked and driven from their leadership positions, from the union, and from their jobs. In this, the anti-Communists (many of them in their jobs because of the work and courage of the Communist organizers) in the AFL and the CIO turned and led the hunt against the Communists.

Where did that leave us? I had an idea that I put to some of the leaders, but they brushed it aside. The party had no time or money for what they certainly regarded as the high jinks of the intellectuals, a group never too highly regarded by any Communist leaders at that time. My idea was to organize a great meeting of the arts in the cause of peace. My feeling was that the struggle for peace was paramount. If the march to war could be halted, other matters could be solved more easily. I laid out the details of what could be done to Lionel Berman of the Cultural Section, and he agreed with me that it was worth a try. The leadership of the party turned us down flat. They felt that every resource had to be directed toward fighting the repression and winning the trial. They had little faith in what we might do, and they had no money to spare for us.

The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. For his accusations were not impersonal. They concerned matters in which he personally was deeply engaged... No judge should sit in a case in which he is personally involved... At frequent intervals in the course of the trial his comments plainly reveal personal feelings against the lawyers.... Truth compels the observation, painful as it is to make it, that the fifteen volumes of oral testimony in the principal trial record numerous episodes involving the judge and defense counsel that are more suggestive of an undisciplined debating society than of the hush and solemnity of a court of justice. Too often counsel were encouraged to vie with the court in dialectic, in repartee and banter, in talk so copious as inevitably to arrest the momentum of the trial and to weaken the restraints of respect that a judge should engender in lawyers... Throughout the proceedings... he failed to exercise the moral authority of a court possessed of a great tradition.

I agree with Mr. Justice Frankfurter that one who reads the record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench fo whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly discussion and of ill will and hot tempers.