Scales v. United States, 367 U.S. 203 (1961)

In Scales v. United States, the Court, in an opinion by Justice Harlan, affirmed a conviction for membership in the Communist Party under the Smith Act. The Court still turns to Scales to resolve issues of membership and free speech or association. Because the Act treaded ‘‘so closely upon protected rights,’’ the Court narrowly construed it to apply only to active membership accompanied by knowledge of the Party’s unlawful objectives and a specific intent to further those objectives. As so limited, prosecution did not impose vicarious guilt inconsistent with due process under the Fifth Amendment, nor did it violate free speech or association under the First Amendment. The Court followed precedents upholding prosecutions for advocacy of the overthrow of the government by force or violence. Chief Justice Warren and Justices Black, Douglas, and Brennan dissented. Black vigorously argued that the Court lacked power to rewrite a vague statute to impose limitations not enacted by Congress, and a prosecution under such a rewritten statute was ex post facto; he also reiterated his long-standing objection to balancing free speech and association against other interests. Accordingly, the prosecution was unconstitutional, because it suppressed belief and advocacy, not unlawful conduct. Douglas canvassed the history of writings on free speech and association; he, too, argued that the prosecution was an unconstitutional suppression of belief and advocacy. Brennan dissented for himself the Chief Justice and Justices Black and Douglas on statutory grounds. The Scales’ standards remain good law.

G. ROBERT BLAKEY

References and Further Reading

• Chafee, Zecharia Jr. Freedom of Speech. 1st Ed. 1920.
• de Secondat Montesquieu, Charles. 1 Spirit of the Laws. 1949, pp. 192–193.
• Gellhorn, Walter. American Rights: The Constitution in Action. 1960, pp. 82–83.

Cases and Statutes Cited

• Dennis v. United States, 341 U.S. 494 (1951)
• Yates v. United States, 354 U.S. 298 (1956)
• Smith Act, 18 U.S.C.} 2385