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 petitioner's conviction in the District Court for the Western District of New York, after a jury trial. 262 F. 2d 501.

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This appeal draws into question the constitutionality of § 5 (a) (1) (D) of the Subversive Activities Control Act of 1950, 64 Stat. 992, 50 U. S. C. § 784 (a) (1) (D),[1]*260 which provides that, when a Communist-action organization[2] is under a final order to register, it shall be unlawful for any member of the organization "to engage in any employment in any defense facility." In Communist Party v. Subversive Activities Control Board, 367 U. S. 1 (1961), this Court sustained an order of the SACB requiring the Communist Party of the United States to register as a Communist-action organization under the Act. The Board's order became final on October 20, 1961. At that time appellee, a member of the Communist Party, was employed as a machinist at the Seattle, Washington, shipyard of Todd Shipyards Corporation. On August 20, 1962, the Secretary of Defense, acting under authority delegated by § 5 (b) of the Act, designated that shipyard a "defense facility." Appellee's continued employment at the shipyard after that date subjected him to prosecution under § 5 (a) (1) (D), and on May 21, 1963, an indictment was filed charging him with a violation of that section. The indictment alleged in substance that appellee had "unlawfully and willfully engage[d] in employment" at the shipyard with knowledge of the outstanding order against the Party and with knowledge and notice of the shipyard's designation as *261 a defense facility by the Secretary of Defense. The United States District Court for the Western District of Washington granted appellee's motion to dismiss the indictment on October 4, 1965. To overcome what it viewed as a "likely constitutional infirmity" in § 5 (a) (1) (D), the District Court read into that section "the requirements of active membership and specific intent." Because the indictment failed to allege that appellee's Communist Party membership was of that quality, the indictment was dismissed. The Government, unwilling to accept that narrow construction of § 5 (a) (1) (D) and insisting on the broadest possible application of the statute,[3] initially took its appeal to the Court of Appeals for the Ninth Circuit. On the Government's motion, the case was certified here as properly a direct appeal to this Court under 18 U. S. C. § 3731. We noted probable jurisdiction. 384 U. S. 937.[4] We affirm the judgment of the District Court, but on the ground that § 5 (a) (1) (D) is an unconstitutional abridgment of the right of association protected by the First Amendment.[5]

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The petitioner was convicted for having unlawfully refused to answer a question pertinent to a matter under inquiry before a subcommittee of the House Committee on Un-American Activities at a hearing in Atlanta, *401 Georgia, on July 30, 1958.[1] His conviction was affirmed by the Court of Appeals, which held that our decision in Barenblatt v. United States, 360 U. S. 109, was "controlling." 272 F. 2d 783. We granted certiorari, 362 U. S. 926, to consider the petitioner's claim that the Court of Appeals had misconceived the meaning of the Barenblatt decision. For the reasons that follow, we are of the view that the Court of Appeals was correct, and that its judgment must be affirmed.

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