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decided: April 2, 1956.



Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan

Author: Warren

[ 350 U.S. Page 498]

 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

The respondent Steve Nelson, an acknowledged member of the Communist Party, was convicted in the Court of Quarter Sessions of Allegheny County, Pennsylvania, of a violation of the Pennsylvania Sedition Act*fn1 and sentenced to imprisonment for twenty years and to a fine of $10,000 and to costs of prosecution in the sum of $13,000. The Superior Court affirmed the conviction. 172 Pa. Super. 125, 92 A. 2d 431. The Supreme Court of Pennsylvania, recognizing but not reaching many alleged serious trial errors and conduct of the trial court infringing upon respondent's right to due process of law,*fn2 decided

[ 350 U.S. Page 499]

     the case on the narrow issue of supersession of the state law by the Federal Smith Act.*fn3 In its opinion, the court stated:

"And, while the Pennsylvania statute proscribes sedition against either the Government of the United States or the Government of Pennsylvania, it is only alleged sedition against the United States with which the instant case is concerned. Out of all the voluminous testimony, we have not found, nor has anyone pointed to, a single word indicating a seditious act or even utterance directed against the Government of Pennsylvania."*fn4

The precise holding of the court, and all that is before us for review, is that the Smith Act of 1940,*fn5 as amended in 1948,*fn6 which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act which proscribes the same conduct.

Many State Attorneys General and the Solicitor General of the United States appeared as amici curiae for petitioner, and several briefs were filed on behalf of the respondent. Because of the important question of federal-state relationship involved, we granted certiorari. 348 U.S. 814.

[ 350 U.S. Page 500]

     It should be said at the outset that the decision in this case does not affect the right of States to enforce their sedition laws at times when the Federal Government has not occupied the field and is not protecting the entire country from seditious conduct. The distinction between the two situations was clearly recognized by the court below.*fn7 Nor does it limit the jurisdiction of the States where the Constitution and Congress have specifically given them concurrent jurisdiction, as was done under the Eighteenth Amendment and the Volstead Act. United States v. Lanza, 260 U.S. 377. Neither does it limit the right of the State to protect itself at any time against sabotage or attempted violence of all kinds.*fn8 Nor does it prevent the State from prosecuting where the same act constitutes both a federal offense and a state offense under the police power, as was done in Fox v. Ohio, 5 How. 410, and Gilbert v. Minnesota, 254 U.S. 325, relied upon by petitioner as authority herein. In neither of those cases did the state statute impinge on

[ 350 U.S. Page 501]

     federal jurisdiction. In the Fox case, the federal offense was counterfeiting. The state offense was defrauding the person to whom the spurious money was passed. In the Gilbert case this Court, in upholding the enforcement of a state statute, proscribing conduct which would "interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota," treated it not as an act relating to "the raising of armies for the national defense, nor to rules and regulations for the government of those under arms [a constitutionally exclusive federal power]. It [was] simply a local police measure . . . ."*fn9

Where, as in the instant case, Congress has not stated specifically whether a federal statute has occupied a field in which the States are otherwise free to legislate,*fn10 different

[ 350 U.S. Page 502]

     criteria have furnished touchstones for decision. Thus,

"this Court, in considering the validity of state laws in the light of . . . federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula." Hines v. Davidowitz, 312 U.S. 52, 67.

And see Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230-231. In this case, we think that each of several tests of supersession is met.

First, "the scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Rice v. Santa Fe Elevator Corp., 331 U.S., at 230. The Congress determined in 1940 that it was necessary for it to re-enter the field of antisubversive legislation, which had been abandoned by it in 1921. In that year, it enacted the Smith Act which proscribes advocacy of the overthrow of any government -- federal, state or local -- by force and violence and organization of and knowing membership in a group which so advocates.*fn11 Conspiracy to commit any of these acts is punishable under the general criminal conspiracy provisions in 18 U. S. C. § 371. The Internal Security Act of 1950 is aimed more directly at Communist organizations.*fn12 It distinguishes between "Communist-action

[ 350 U.S. Page 503]

     organizations" and "Communist-front organizations,"*fn13 requiring such organizations to register and to file annual reports with the Attorney General giving complete details as to their officers and funds.*fn14 Members of Communist-action organizations who have not been registered by their organization must register as individuals.*fn15 Failure to register in accordance with the requirements of Sections 786-787 is punishable by a fine of not more than $10,000 for an offending organization and by a fine of not more than $10,000 or imprisonment for not more than five years or both for an individual offender -- each day of failure to register constituting a separate offense.*fn16 And the Act imposes certain sanctions upon both "action" and "front" organizations and their members.*fn17 The Communist Control Act of 1954 declares "that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States" and that "its role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States."*fn18 It also contains a legislative finding that the Communist Party is a "Communist-action organization" within the meaning of the Internal Security Act of 1950 and provides that "knowing" members of the Communist Party are "subject to all the provisions and penalties" of that Act.*fn19 It furthermore sets up a new classification of "Communist-infiltrated organizations"*fn20

[ 350 U.S. Page 504]

     and provides for the imposition of sanctions against them.

We examine these Acts only to determine the congressional plan. Looking to all of them in the aggregate, the conclusion is inescapable that Congress has intended to occupy the field of sedition. Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it. Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law. As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604:

"When Congress has taken the particular subject-matter in hand coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go."

Second, the federal statutes "touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U.S., at 230, citing Hines v. Davidowitz, supra.*fn21 Congress has devised an all-embracing program for resistance to the various forms of totalitarian aggression. Our external defenses have been strengthened, and a plan to

[ 350 U.S. Page 505]

     protect against internal subversion has been made by it. It has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world. It has charged the Federal Bureau of Investigation and the Central Intelligence Agency with responsibility for intelligence concerning Communist seditious activities against our Government, and has denominated such activities as part of a world conspiracy. It accordingly proscribed sedition against all government in the nation -- national, state and local. Congress declared that these steps were taken "to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government . . . ."*fn22 Congress having thus treated seditious conduct as a matter of vital national concern, it is in no sense a local enforcement problem. As was said in the court below:

"Sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts where this defendant has in fact been prosecuted and convicted and is now under sentence.*fn23 It is not only important but vital that such prosecutions should be exclusively within the control of the Federal Government . . . ."*fn24

Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Since 1939, in order to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions, the Federal Government has urged

[ 350 U.S. Page 506]

     local authorities not to intervene in such matters, but to turn over to the federal authorities immediately and unevaluated all information concerning subversive activities. The President made such a request on September 6, 1939, when he placed the ...

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