concurring.
I wish to add a few words emphasizing certain reasons, among others, which prompt me to concur in the Court’s reversal of these judgments on the ground that the evidence was insufficient to support conviction of the defendants.
The prosecution tried to prove that the defendants counseled the members of the Bund to evade the Selec-tice Service Act. Its case necessarily rested upon the assumption that members of the Bund were subject to the draft under that Act. It follows that- if Bund members were not lawfully subject to draft under the Act, no person could be convicted for advising Bund members to this effect. Bund Command No. 37, an indispensable element in the government’s case, took the position that Bund members were not subject to draft because “in the Selective Service Law the citizenship rights of the Bund members . . . are unconstitutionally severed.” This same crucial question was seasonably raised and urged in the courts below, and is argued here. Since I think the evidence inadequate to support the judgments, I am not compelled to pass on this grave constitutional challenge.
*496Nevertheless, these defendants’ conduct cannot fairly be appraised without an understanding of the statutory provisions against which they vehemently protested. For testimony as to these protests was a vital part of the evidence against them — without that part of the evidence they could not possibly have been convicted. It is necessary to distinguish between honest objections directed at legitimate wrongs, and sham protests which only obscure the real purpose. Language and actions of these defendants which is crucial to their convictions must be judged in the light of the fact that it followed passage of the Selective Service Act which contained the following provisions.
Sections 8 (a) (b) of the Selective Service Act, 54 Stat. 885, 890, provides that persons who have been drafted into and honorably discharged from military and naval service shall be accorded high preferential rights in regard to their reemployment by public or by private employers. Congress declared in these sections that such an ex-service man must be restored to his former position as though he had “been on furlough or leave of absence during his period of training and service in the land or naval forces,” and that he should be so restored to his former job without loss of seniority or other privileges accorded regular employees. Section 308 (i) of the Act, however, declared that
“It is the expressed policy of the Congress that whenever a vacancy is caused in the employment rolls of any business or industry by reason of induction into the service of the United States of an employee pursuant to the provisions of this Act such vacancy shall not be filled by any person who is a member of the Communist Party or the German-American Bund.”
After the passage of this Act, these defendants found themselves in this position. It was announced that Bund members were subject to draft to serve on the battlefront *497where they might be seriously injured or lose their lives. They found that the law under which they were said to be subject to draft, commanded employers to reemploy other citizens who had been honorably discharged from the service, but the same law provided that when a Bund member came back after an honorable service, with an honorable discharge, no person anywhere could give him reemployment without violating the express policy of Congress.
It has been argued that these defendants had no legitimate reason to protest against these provisions because they were obviously unconstitutional and amounted to no more than an admonition; but they were an admonition sounded by the highest legislative body of the nation. It has also been suggested that these defendants should have known both that the protested proscriptive provision of the Act was unconstitutional and that Courts would sever it from other parts of the Act leaving Bund members constitutionally subject to draft. But this Court has said that
“The legislature could not thus impose upon laymen, at the peril of criminal prosecution, the duty of severing the statutory provisions and of thus resolving important constitutional questions with respect to the scope of a field of regulation as to which even courts are not yet in accord.” Smith v. Cahoon, 283 U. S. 553, 564.
When we view the conduct of these defendants in all of this setting, their vigorous language appears to have been little, if any, more condemnatory of the discriminatory section of the Selective Service Act than language previously used by this Court with reference to legislation of a similar pattern. The whole tone of their protest was sounded graphically by their expression:
“No Civil Rights — No Military Duty! Draft Exempts Bund Members!” Cf. Inglis v. Trustees of the Sailors *498Snug Harbour, 3 Pet. 99, 125, 168, 169. As to legislation having a similar setting, this Court has said:
“. . . in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and . . . in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined. ... A bill of attainder is a legislative act which inflicts punishment without a judicial trial. . . . These bills are generally directed against individuals by name; but they may be directed against a whole class.” Cummings v. Missouri, 4 Wall. 277, 321-323. See also Ex parte Garland, 4 Wall. 333.
I cannot agree that the convictions of these defendants can be sustained on the basis of the evidence presented by the prosecution, weighed along with that section of the Selective Service Act which would stigmatize honorably discharged soldiers as unworthy to hold a job and earn a living.