Petitioner was convicted of violating the so-called membership clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purpose thereof. Held: The judgment is reversed, because the evidence was insufficient to prove that the Communist Party presently advocated forcible overthrow of the Government, not as an abstract doctrine, but by the use of language reasonably and ordinarily calculated to incite persons to action, immediately or in the future. Pp. 291-300.

(a) In order to support a conviction under the membership clause of the Smith Act, there must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it. P. 298.

(b) It is present advocacy, not an intent to advocate in the future or a conspiracy to advocate in the future, which is an element of the crime under the membership clause of the Smith Act. P. 298.

(c) A defendant must be judged upon the evidence in his own trial, and not upon the evidence in some other trial or upon what may be supposed to be the tenets of the Communist Party. P. 299.

John J. Abt argued the cause and filed a brief for petitioner.

Kevin T. Maroney and John F. Davis argued the cause for the United States. With Mr. Maroney on the brief were Solicitor General Rankin and Assistant Attorney General Yeagley. [367 U.S. 290, 291]

MR. JUSTICE HARLAN delivered the opinion of the Court.

This case, like No. 1, Scales v. United States, ante, p. 203, was brought here to test the validity of a conviction under the membership clause of the Smith Act. 361 U.S. 813. The case comes to us from the Court of Appeals for the Second Circuit which affirmed petitioners conviction in the District Court for the Western District of New York, after a jury trial. 262 F.2d 501.

The only one of petitioners points we need consider is his attack on the sufficiency of the evidence, since his statutory and constitutional challenges to the conviction are disposed of by our opinion in Scales; and consideration of his other contentions is rendered unnecessary by the view we take of his evidentiary challenge.

In considering that challenge we start from the premise that Smith Act offenses require rigorous standards of proof. Scales, ante, p. 230. We find that the record in this case, which was tried before our opinion issued in Yates v. United States, 354 U.S. 298, bears much of the infirmity that we found in the Yates record, and requires us to conclude that the evidence of illegal Party advocacy was insufficient to support this conviction.

A large part of the evidence adduced by the Government on that issue came from the witness Lautner, and the reading of copious excerpts from the "communist classics." This evidence, to be sure, plentifully shows the Partys teaching of abstract doctrine that revolution is an inevitable product of the "proletarian" effort to achieve communism in a capitalist society, but testimony as to happenings which might have lent that evidence to an inference of "advocacy of action" to accomplish that end during the period of the indictment, 1946-1954, or itself supported such an inference, is sparse indeed. Moreover, such testimony as there is of that nature was not broadly based, but was limited almost exclusively to Party doings [367 U.S. 290, 292] in western New York, more especially in the cities of Rochester and Buffalo, the scene of petitioners principal Party activities. Further, the showing of i