Scales v. United States

Scales v. United States, 367 U.S. 203 (1961), reargued 10 Oct. 1960, decided 5 June 1961 by vote of 5 to 4; Harlan for the Court, Brennan, Warren, Douglas, and black in dissent. The Supreme Court had dealt with the conspiracy provisions of the Smith Act in two previous cases: Dennis v. United States (1951) and Yates v. United States (1957). In Scales, as well as in Noto v. United States (1961), the Court considered the Smith Act's membership clause. The Court upheld Scales's conviction by interpreting the membership clause as requiring proof of “active” as distinguished from merely “nominal” or “passive” membership in the Communist party.

The Court found in the language of the statute clear warrant for requiring “not only knowing membership, but active and purposive membership, purposive that is as to the organization's criminal ends” (p. 210). As thus construed, it held that the membership clause did not violate the Due Process Clause of the Fifth Amendment nor the free speech guarantee of the First Amendment. Since the Communist party was considered an organization that engaged in criminal activity, the Court saw no constitutional obstacle to the prosecution of a person who actively and knowingly works in its ranks with intent to contribute to the success of its illegal objectives. Even though the evidence disclosed no advocacy for immediate overthrow of the government, the Court held that present advocacy of future action satisfied statutory and constitutional requirements no less than advocacy of immediate action.

See also Communism and Cold War; Speech and the Press.

Milton R. Konvitz