Scales v. U.S. Case Brief

Summary of Scales v. U.S., 367 U.S. 203 (1961)

Facts: Pet is the Chairman of N and S Carolina Communist Party.

Issue(s): Whether mere membership in an organization that advocates and teaches overthrowing of US Govt by force and violence can be prohibited by criminal sanction; and whether the jury could find that evid supported an inference that the Party’s advocacy of eventual forcible overthrow constituted the type of advocacy condemned by Dennis and attached liability to Pet?

Holding: Yes

Procedure: Pet convicted by jury of violating membership clause of Smith Act making it a crime to become a member of Org advocating overthrowing the US Govt by force or violence, knowing the purposes of the Org. USSCt Affirmed.

Rule(s): 1st Amend; Smith Act 18 U.S.C. 2385

Rationale: As far as membership alone is concerned, must first distinguish between a person who merely becomes a member of an illegal Org and by that act assents to the Org’s purposes, from those who join and provide moral encouragement. to others, in what the Org is doing.

The statutory test is satisfied when “active" members also possess guilty knowledge and intent.

There is no reason why complicit membership that has the same purposefulness as the group or Org to engage in the same forbidden advocacy does not rec’v more 1st Amend protection.


Yates controls this issue which calls for strict standards in assessing the adequacy of proof needed to establish illegal advocacy for Smith Act offenses. Yates makes clear what type of Evid is insufficient to prove illegal advocacy, but which may be useful in conjunction with other evid., as well as what type of evid would be sufficient. Yates also indicated what quantum and type of evid is required to attach liability to individual for illegal advocacy with the Party–conspiratorial nexus theory. Yates imposes a Strict Standard of Proof.

Dennis and Yates hold that present advocacy of future action for violent overthrow satisfies statutory and Const’l requirements, equally as advocacy of immediate action to that end.

DISSENT: The Pet is being sent to jail for associating with people who have entertained unlawful ideas and said unlawful things–abridges 1st Amend speech and assembly.

Whether the Pet was an active or inactive member should not control b/c none of the activity is criminal in nature. Not one single illegal act is charged to the Pet. Belief in a revolution becomes the crime.

Df’s A: The Evid was insufficient to establish that the Communist Party was engaged in present advocacy of violent overthrow of the Govt as required by the Act–“advocacy of action" to accomplish the overthrow in a present or immediate sense and uttered in terms Rbly likely to incite such action. There was no prohibited advocacy by the Communist Party, therefore a material element of the charge was not proven.


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