Scales v. United States

PETITIONER: Scales
RESPONDENT: United States
LOCATION: Illinois General Assembly

DOCKET NO.: 3
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 355 US 1 (1957)
ARGUED: Oct 10, 1956 / Oct 11, 1956
DECIDED: Oct 14, 1957

ADVOCATES:
J. Lee Rankin - Solicitor General, Department of Justice, for the United States
Telford Taylor - for the petitioner

Facts of the case

Question

Media for Scales v. United States

Audio Transcription for Oral Argument - October 11, 1956 in Scales v. United States

Audio Transcription for Oral Argument - October 10, 1956 in Scales v. United States

Earl Warren:

Number 29, Junius Irving Scales, Petitioner, versus United States of America.

General Taylor.

Telford Taylor:

Mr. Chief Justice, members of the Court.

This case comes up here from the Court of Appeals for the Fourth Circuit.

It's also a Smith Act case, but it is not a conspiracy case.

And it comes up here under a provision of the Smith Act that has not hitherto then before this Court for review and consideration.

Perhaps, the Court would like to look at it right at the outset and my brief in the appendix of page 48 sets forth the language of the Smith Act showing this clause and its context.

The Court will recall that there are three basic paragraphs in the Smith Act, one prohibiting advocacy, one on the distribution of literature, and one on organizing groups.

And the conspiracy cases that have hitherto come here have been for conspiracy to violate the first and third paragraphs on advocacy and organizing.

The clause for this action that this case comes under is the last clause of the third paragraph.And eliminating the part about organizing, which is not relevant here.

It reads, "Whoever becomes or is a member of or affiliates with any such society, group or assembly of persons, knowing the purposes thereof shall be fined, imprisoned and so forth."

And to such group refers back to the same groups that the other provisions of the Act is concerned, group of persons who advocate the overthrow of the Government by force or violence.

In short, this clause prescribes being a member of a group, the members of which advocate violent overthrow with knowledge that that is the purpose.

Now, Your Honors, this case involves some of the same questions that you have heard discussed in the preceding cases, questions such as the sufficiency of the evidence about the Communist Party, the sufficiency of the evidence about an individual's connection with it.

But the Court has heard considerable argument on these points.

In the last two days, though not quite as much as I expected this morning when I came to Court, and for that reason it seems to me that it might be best for me to go immediately to the new questions in this case that are not presented in the prior cases because there are new constitutional and statutory problems arising here that I plan to focus my argument upon.

There is the question of the constitutionality of this membership clause on its space and as applied in this case.

The -- to state very briefly, the question of constitutionality arises because this contains no prohibition of advocacy or incitement or organizing or conspiring, this is a prohibition of status plus state of mind.

Now the Court may not reach that question.

The Court may not reach it because there is a statutory question here too, which maybe governing and the Court may prefer to approach constitutional questions last and not first as has been said.

And that question is whether the indictment here states an offense against the laws of the United States.

It arises because in 1950, 10 years after the Smith Act was passed, Congress enacted the Internal Security Act of 1950 including Section 4 (f) of that Act which you will find in the Appendix to my brief at page 49.

Section 4 (f) declares that neither the holding of office nor membership in any Communist organization, by any person, shall constitute per se a violation of subsection (a), or subsection (c) of this Section or of any other criminal statute.

Now, that extension of the bar, whatever the bar is, to any other criminal statute, it is my argument that that presently bars the prosecution of Communists under the membership clause which is the clause that this case comes up under.

Whatever might be its effect on conspiracy cases that has an effect on the membership clause is to cut off the prosecution for Communists.

Now, after stating the case, I propose to focus my argument on these two questions, the statutory and the constitutional.

There are also these evidentiary questions which are raised in Yates and -- and were raised in Mesarosh.

And if time permits, I will say a few words about those as well as about the points relating to fair trial.

Felix Frankfurter:

Can you take a minute to state the -- what you call statutory question.

That isn't a question of criminal pleading, is it?