oregon criminal syndicalism law and dirk dejonge and harry h stein and multnomah county communist party

When Dirk DeJonge and three others were arrested at the meeting described in the previous essay, the charging instrument had to detail precisely which parts of the statute they were supposed to have violated. Here is the language of the indictment:

"The said Dirk De Jonge, Don Cluster, Edward R. Denny and Earl Stewart on the 27th day of July, A. D., 1934, in the county of Multnomah and State of Oregon, then and there being, did then and there unlawfully and feloniously preside at, conduct and assist in conducting an assemblage of persons, organization, society and group, to-wit: The Communist Party, a more particular description of which said assemblage of persons, organization, society and group is to this grand jury unknown, which said assemblage of persons, organization, society and group did then and there unlawfully and feloniously teach and advocate the doctrine of criminal syndicalism and sabotage, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

Note the first part of the sentence--"did then and there unlawfully and feloniously preside at, conduct and assist in conducting an assemblage of persons..." This is the heart of the indictment, which fits squarely under subsection [4], in my numbering, of the statute. He was not indicted for teaching Communist doctrine, but the wording near the end of the indictment appears to say that there was teaching "then and there" at the meeting the doctrine of criminal syndicalism. Ambiguity, however, reigns in the last part of the sentence, as will be shown below.

At trial DeJonge's attorney moved to have the charge of teaching criminal syndicalism dismissed. The indictment itself is a bit fuzzy on this point--was criminal syndicalism actually taught at this meeting or was criminal syndicalism the general teaching of the Communist Party of Multnomah County or, if it was taught at the meeting, was it taught by the specific defendants? In any case, the motion was denied by the court, and DeJonge was convicted of violating the statute. On appeal the Oregon Supreme Court separated out the issues and declared that the indictment only indicted DeJonge specifically on the "conducting of the meeting" prong of the statute and not on the teaching of criminal syndicalism. As the Oregon Supreme Court concluded:

"The indictment does not, however, charge the defendant, nor the assemblage at which he spoke, with teaching or advocating at said meeting at 68 Southwest Alder street, in the city of Portland, the doctrine of criminal syndicalism or sabotage. What the indictment does charge, in plain and concise language, is that the defendant presided at, conducted and assisted in conducting an assemblage of persons, organization, society and group, to-wit, the Communist party, which said assemblage of persons, organization, society and group was unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and sabotage."

This court affirmed DeJonge's seven-year sentence, with two dissenters.

The US Supreme Court Weighs In

Thus, the stage was set for an appeal to the US Supreme Court. Harry Stein lays out some of the procedural issues in his recent biography of US District Court Judge Gus J. Solomon, and they need not be repeated here. Suffice it to say that when the Supreme Court granted certiorari, it confined its consideration of the case to the fourth prong of the statute. DeJonge was indicted, in the words of Chief Justice Charles Evans Hughes, for the following:

"His sole offense as charged, and for which he was convicted and sentenced to imprisonment for seven years, was that he had assisted in the conduct of a public meeting, albeit otherwise lawful, which was held under the auspices of the Communist Party."

Now with the issue thus framed, the oral argument at the US Supreme Court, in December 1936, falls right into place. Questions from the conservative members of the Court (the so-called Four Horsemen), focused on whether anything said by such a person as DeJonge (the second speaker at the meeting) would violate the tenor of the statute. Suppose he introduced a memorial to remember Communist party members who had died. Would he have violated the statute? 'Yes, he would,' intoned the state prosecutor.

With the issue so framed, the US Supreme Court now easily decided the issue, on a 9-0 vote. The fourth subsection of Section 3 of the statute swept far too broadly. What it prohibited was assembly of people who may not have been advocating the overthrow of the government, even though the organization under whose auspices the meeting was held taught the doctrine of criminal syndicalism. Thus, the Court held that the Oregon statute, as applied, was unconstitutional. What this means is not that the statute itself, on its face, was unconstitutional but, rather, that its application to the facts of this case and the indictment of DeJonge, was an unconstitutional application of the statute. The DeJonge case became a landmark in US Supreme Court jurisprudence on the issue of the application of the right to peaceably assemble clause of the First Amendment to the States through the Fourteenth Amendment--a topic whic goes behond the scope of these essays.

Aftermath

Though the US Supreme Court didn't invalidate the statute, the fourth subsection of Section 3 looked questionable. And, when you take the time to think of it, indictment under the first three subsections of Section 3 might be very difficult to pull off. In the light of this uncertainty created by the US Supreme Court in their January 1937 DeJonge decision, the Oregon Legislature quietly repealed the criminal syndicalism statute on March 10, 1937 and replaced it with the following rather wimpy, from the perspective of the "assertive" syndicalism statute, conspiracy law.

Sec. 1: "If two or more persons conspire to commit any felony defined and made punishable by the laws of the state of Oregon and one or more of such parties do any act to effect the object of such conspiracy, each of the parties to such conspiracy, upon conviction thereof, shall be punished by imprisonment in the state penitentiary for a period of not more than three years or by a fine of not more than $1,000, or by both such fine and imprisonment.

Sec. 2: "That sections 14-3,110, 14-3,111 and 14-3,1112 [the Criminal Syndicalism Law] Oregon Code 1935 Supplement, be and the same hereby are repealed" (1937 Or Laws ch. 362).

Incredible, isn't it? Oregon's authorities tried to "press" the issue by adding a 1933 extension to the statute, but it blew up in their faces. While other states had criminal syndicalism laws on their books and continued prosecutions under them for decades to come, Oregon had a different experience. Ah...the cost of overreaching.

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