Scales v. United States

Petitioner
Junius Irving Scales
Respondent
United States
Petitioner's Claim
That the membership clause of the Smith Act, which makes it a crime to belong"knowingly" to an organization advocating overthrow of the government, violates the rights of free speech and association, as well as due process.
Chief Lawyer for Petitioner
Telford Taylor
Chief Lawyer for Respondent
John F. Davis
Justices for the Court
Tom C. Clark, Felix Frankfurter, John Marshall Harlan II (writing for the Court), Potter Stewart, Charles Evans Whittaker
Justices Dissenting
Hugo Lafayette Black, William J. Brennan, Jr., William O. Douglas, Earl Warren
Place
Washington, D.C.
Date of Decision
5 June 1961
Decision
The Supreme Court upheld the constitutionality of the membership clause of the Smith Act and Scales's conviction under its terms.
Significance
In the 1960s, the federal courts were still prosecuting members of the Communist Party. In Scales, the Supreme Court distinguished between Scales's"active" membership in the party and merely belonging.
In the wake of World War II, the United States became concerned about Sovietdomination of Central and Eastern Europe. Policy makers in Washington, D.C. were determined to contain the growth of Soviet imperialism, both abroad and at home. The American Communist party in fact posed little threat to the federal government, but Congress passed many laws aimed at removing party membersnot just from government, but from American society at large. The anti-communist movement reached fever pitch when the political opportunist, Senator Joseph McCarthy, and the notorious House Committee on Un-American Activities began holding public hearings in an effort to root out domestic subversivism.
The Smith Act, a product of pre-war anxiety, became part of the Cold War on communism. Adopted in 1940 before the U.S. had actually entered World War II,the legislation--properly called Title I of the Alien Registration Act--was decidedly xenophobic, requiring the fingerprinting of all aliens in the country. Its true aim, however, was to check subversive activity. It imposed penalties on anyone attempting to disrupt the morale of the armed forces or advocating violent overthrow of the government. It also outlawed membership in any organization dedicated to this goal.
The Smith Act was rarely invoked during the war. After World War II ended, though, it saw active use as a tool for prosecuting domestic communists. Afterthe Supreme Court upheld the convictions of 12 Communist Party Central Committee members under the act in Dennis v. United States (1951), the act helped to secure indictments of state party leaders all over the country. After the Korean War ended in 1953 and Senator McCarthy was publicly discreditedin 1954, the communist witch hunt abated somewhat. The Supreme Court led by Chief Justice Warren began to back away from the government prosecution of communists. On what became known as "Red Monday," 17 June 1957, the Court ruledagainst the government in several cases involving alleged subversiveness, including a number of California communist leaders who had been convicted underthe Smith Act.
A backlash followed. Conservative members of Congress mounted a campaign to take jurisdiction in subversion cases away from the Supreme Court. The effortfailed, but it did move the Court back towards the right politically--if onlytemporarily. One of the cases resulting from this switch in orientation wasScales v. United States.
Supreme Court Reverses Course on Communism
Junius Scales was a Communist Party activist who was convicted in the U.S. District Court for the Middle District of North Carolina of having violated theSmith Act's membership clause. His appeal of this felony conviction failed,and Scales took his case to the U.S. Supreme Court. Writing for the 5-4 majority that upheld Scales's conviction, Justice Harlan explained that it was the"active" nature of Scales's involvement that violated the law:

[None] of the criminal provisions [of the Smith Act] shall be construedso as to make "membership" in a Communist organization "per se a violation.". . . Although we think that the membership clause on its face goes beyond making mere Party membership a violation, in that it requires a showing both ofillegal Party purposes and of a member's knowledge of such purposes, we regard the first sentence . . . as a clear warrant for construing the clause as requiring not only knowing membership, but active and purposive membership, purposive that is as to the organization's criminal ends.

By interpreting the membership clause this way, the Court was able to get around Scales's First and Fifth Amendment objections. If membership in a subversive organization was not by itself a crime, then the Smith Act could not robScales of his right to speak his mind and associate with whomever he pleased."Active" membership in an organization that plotted the violent overthrow ofthe government, however, crossed the line into criminality--and pursuing criminals cannot be construed as a violation of due process.
Scales involved some very fancy footwork. The same day that the Courtdecided this case, in Noto v. United States (1961) it also overturnedthe Smith Act conviction of a Communist Party member who was apparently lessactive than Junius Scales had been. The coalition of conservative opinion that produced Scales was an unstable one. After the retirement of JusticeFrankfurter in 1962, Justice Harlan--and the other members of the Court--turned once again to their civil rights orientation, invalidating many legal leftovers from the Cold War.
Related Cases

• Schenck v. United States, 249 U.S. 47 (1919).
  
• Dennis v. United States, 341 U.S. 494 (1951).
  
• Yates v. United States, 354 U.S. 298 (1957).
  
• Noto v. United States, 367 U.S. 290 (1961).

The Smith Act
The Smith Act, properly known as the Alien Registration Act, became famous for its use during the anti-Communist campaigns of the late 1940s and 1950s. Yet like the House Un-American Activities Committee (HUAC), another fixture ofthe era, the Smith Act began life at a time when fascism and Nazism were viable systems, and it was designed to counteract these threats as much as Communism.
The Smith Act forbade the printing or display of materials that called for the overthrow of the federal government, and outlawed teaching or organizing ofactivities aimed toward overthrow. Likewise it made it illegal to belong toan organization which supported such overthrow. The first major prosecution of Communists under the Smith Act occurred in 1943, when a group that supported Leon Trotsky (a leader of the Russian Revolution murdered by Stalin in 1940) was convicted in Minneapolis; but the full-scale use of the act against Communists began in the late 1940s. A number of Supreme Court rulings during the1950s and early 1960s, including Scales, greatly restricted the scopeof the Smith Act.
Sources
Levy, Leonard W., ed. Encyclopedia of the American Constitution. New York: Macmillan, 1986.