367 U.S. 203 (1961)
Junius Scales was indicted on November 18, 1954, in the Middle District of North Carolina for violating the membership clause of the Smith Act, 18 U.S.C. § 2385, by holding knowing membership in the Communist Party of the United States from January 1946 through the date of the indictment, with knowledge of the Party's purpose to advocate the overthrow of the United States government by force and violence and with the specific intent to accomplish that overthrow as speedily as circumstances would permit.1
The indictment followed Scales' service as chairman of the Party's Carolina District, during which he recruited members, arranged attendance at Party schools, and directed instruction on Marxist-Leninist doctrine.2 The first trial ended in conviction in 1955; the Court of Appeals affirmed, but the Supreme Court reversed on the authority of Jencks v. United States and remanded for a new trial.3
After Congress enacted the Jencks statute, 18 U.S.C. § 3500, Scales was retried in 1958, again convicted by a jury, and sentenced to six years' imprisonment.4 The Court of Appeals affirmed the second conviction in 260 F.2d 21.5
At the second trial the government introduced testimony from former Party members and an FBI informant who had infiltrated the organization under Scales' direction.6 Witnesses described instruction at national and regional Party schools in 1945, 1947, 1950, 1951, and 1952 that taught the inevitability of violent proletarian revolution, the necessity of smashing the bourgeois state apparatus, the formation of coalitions between the working class and the Negro population in the South to prepare for that revolution, and techniques such as underground organization and readiness for action when objective conditions ripened.7
Scales personally instructed the informant on the Party's strategy of combining the proletariat and the Negro nation to achieve forcible overthrow, arranged his attendance at the Jefferson School of Social Science, and directed him to infiltrate labor and defense-related organizations while remaining undercover.8 The three-year limitations period narrowed the government's proof to events between November 1951 and November 1954, although earlier events were admitted to establish the continuing character of the Party's advocacy.9 The Supreme Court granted certiorari to review the statutory, constitutional, evidentiary, and procedural claims.10
Whether section 4(f) of the Internal Security Act of 1950 constitutes a pro tanto repeal of the membership clause of the Smith Act?11
Section 4(f) provides that membership in a Communist organization shall not constitute per se a violation of any criminal statute.12 The fact of registration shall not be received in evidence.13 Its language and legislative history clarify that mere membership does not violate the Smith Act.14 They do not repeal the membership clause when the prosecution requires proof of knowing and active membership with specific intent to further the organization's illegal advocacy.15
No. The first sentence of section 4(f) mandates construction of criminal statutes so that membership alone is not an offense.16 The second sentence limits only the evidentiary use of registration.17 Both the statutory text and the history of the Mundt-Nixon and Wood bills demonstrate that Congress intended clarification rather than repeal.18 Applied to the established facts, the indictment charged Scales with knowing membership accompanied by specific intent to accomplish overthrow as speedily as circumstances would permit, not with membership per se.19
The prosecution proceeded on that basis without relying on registration.20
Section 4(f) does not bar the prosecution under the membership clause of the Smith Act.21
Related opinions on this issue
Justice Brennan dissented on the ground that the first sentence of section 4(f) grants immunity from prosecution under the membership clause whenever membership is shown.22 He did not distinguish between nominal and active membership.23 Congress faced a dilemma between compulsory registration and the privilege against self-incrimination.24
It resolved the dilemma by extending immunity to all forms of membership so that the registration provisions could survive constitutional challenge.25 Brennan concluded that a fair reading of section 4(f) requires dismissal of the indictment because the immunity extends to the active and purposive membership for which Scales was convicted.26
Whether the membership clause of the Smith Act, as construed to require active membership with knowledge of the organization's illegal advocacy and specific intent to accomplish violent overthrow, violates the Fifth Amendment?27
The Fifth Amendment requires that guilt be personal.28 Punishment for membership in an organization engaged in illegal advocacy must rest on a sufficiently substantial relationship between the individual's status and concrete criminal conduct.29 The clause satisfies due process when it reaches only active members who know of the organization's advocacy and specifically intend to further its criminal ends.30 Such membership constitutes a form of complicity analogous to conspiracy or aiding and abetting.31
No. The statute as construed demands proof of active participation, knowledge of illegal advocacy, and specific intent to bring about violent overthrow.32 This prevents conviction on the basis of mere sympathy or nominal affiliation.33 Applied to the established facts, Scales served as chairman of the Carolina District.34 He recruited members and arranged attendance at Party schools where violent revolution was taught as a rule of action.35
He personally instructed an informant on combining the proletariat and the Negro nation to achieve forcible overthrow.36 These facts establish the personal involvement required by due process.37
The membership clause, as construed, does not violate the Fifth Amendment.38
Whether the membership clause of the Smith Act, as construed, violates the First Amendment by infringing free political expression and association?39
The First Amendment does not protect advocacy of violent overthrow of the government.40 It does not protect purposeful complicity in an organization engaged in such advocacy.41 The membership clause, limited to active members who know of and specifically intend to further the organization's illegal ends, does not cut deeper into protected association than necessary.42 It leaves untouched members who pursue only lawful aims.43
No. Advocacy of violent overthrow is not constitutionally protected speech.44 Knowing membership with specific intent to further that advocacy is not protected association.45 The statute requires clear proof of specific intent to accomplish overthrow by resort to violence.46 Therefore it does not punish those who join for legitimate purposes.47
Applied to the established facts, Scales' direction of underground organization, instruction on smashing the bourgeois state apparatus, and arrangement of training in revolutionary techniques demonstrated the purposeful complicity that removes his membership from First Amendment protection.48
The membership clause, as construed, does not violate the First Amendment.49
Related opinions on this issue
Justice Black dissented on the ground that the Court's construction of the membership clause effectively rewrote the statute by implying requirements of activity and specific intent that the text does not contain.50 This rendered the law unconstitutionally vague or ex post facto as applied to Scales.51 He further argued that the balancing test employed by the majority permits direct abridgment of speech and assembly whenever the government interest is deemed sufficient.52
This threatens the core protections of the First Amendment.53
Justice Douglas dissented on the ground that the prosecution punished Scales solely for belief in the principle of revolution and membership in a political party.54 There was no charge of conspiracy, overt act, or other criminal conduct.55 He maintained that the First Amendment forbids criminalizing ideas or dogmas.56
The right of revolution is part of the American tradition.57 Punishing belief in the necessity of forcible overthrow at some future time violates the fundamental guarantee of freedom of thought and association.58
Whether the evidence was sufficient to establish that the Communist Party engaged in advocacy of violent overthrow within the meaning of the Smith Act and that petitioner was an active member with the requisite knowledge and intent?59
Under the strict standards established in Yates v. United States, evidence is sufficient to show illegal advocacy when it demonstrates systematic teaching of forceful overthrow accompanied by directions for concrete action or a contemporary course of conduct undertaken to render later illegal activity effective.60 Such advocacy may be attributed to the Party when it is sufficiently frequent, authorized by high officials, and consistent with the principle of democratic centralism.61
Yes. The testimony of former Party members and the FBI informant established that at multiple schools between 1945 and 1952 instructors taught the inevitability of violent revolution.62 They taught the necessity of smashing the bourgeois state machine in the course of seizing power.63 They taught the formation of coalitions with the Negro population in the South.64
They taught techniques such as underground organization and readiness for action when objective conditions ripened.65 Applied to the established facts, these teachings were imputable to the Party because they were delivered by high officials.66 They conformed to democratic centralism.67 They were echoed in Scales' own instructions to the informant on combining the proletariat and the Negro nation to achieve forcible overthrow.68
Scales' chairmanship, recruitment, and direction of training schools further established his active membership, knowledge, and specific intent.69
The evidence was sufficient to support the conviction.70
Whether admission of evidence relating to Party purposes, limitations on production of witness statements under the Jencks statute, or other trial procedures deprived petitioner of a fair trial?71
Evidentiary rulings rest in the sound discretion of the trial judge and will not be reversed absent abuse.72 The Jencks statute is constitutional because it limits production to statements that relate to the subject matter of the witness's testimony and permits full appellate review.73 Other procedural claims such as challenges to grand-jury selection are waived if not timely raised under Rule 12 of the Federal Rules of Criminal Procedure.74
No. The trial court acted within its discretion in admitting evidence of the Party's Black Belt program and the pamphlet on alleged American atrocities in Korea.75 Both were relevant to the issue of whether the Party's program constituted a call to stand in readiness for violent action.76 Applied to the established facts, the Jencks statute was properly applied without constitutional violation.77 The petitioner showed no prejudice from its limitations.78
Any challenge to the method of selecting grand jurors was waived by failure to comply with Rule 12.79 The Court of Appeals correctly found no reversible error in the remaining procedural claims.80
Petitioner was not deprived of a fair trial.