Among the arguments offered by the Respondent in Error were the following:
· Crime of Assembling: “The crime of ‘assembling’ is an absolute novelty in American law. This is the only case of record in all our law books . . . in which the judgment depends solely on a charge of assembling with a society devoted to the propagation of a certain form of doctrine.” (emphasis in original) That is, the “act of ‘assembling’ takes its criminal quality from the antecedent character of the society with which the accused assembles, not from any actual advocacy of criminal syndicalism that is aided or instigated by his act of assembling.”
· Opinion vs. Incitement: “One may be an anarchist and give frequent expression to his anarchistic belief without running afoul of the Criminal Anarchy statute. An utterance without incitement-quality and incitement-intent is not criminally punishable.” Indeed, “[u]ntil opinion by its form and intent passes over this realm of incitement it is beyond the reach of the police power.”
· Conspiracy: The crime with which Ruthenberg was charged smacked of the more traditional crime of conspiracy, which the defense was quick to distinguish: “the charge laid out in this case and the evidence by which it is supported do not fall within the classification of conspiracy. It was not alleged or proved that the plaintiff in error, at the time and place of the supposed felony, entered into a certain plan and agreement with other persons to undertake the future dissemination in some form of the doctrine of criminal syndicalism.” If the idea of conspiracy can be detached from the logic of the state syndicalism law, what then is the purpose of such a law other than to penalize beliefs?
