SUPREME COURT OF THE UNITED STATES
367 U.S. 203
Scales v. United States
Argued: October 10, 1960
Decided: June 5, 1961
See 366 U.S. 978, 81 S.Ct. 1912.
[Syllabus from pages 203-204 intentionally omitted]
Mr. Telford Taylor, New York City, for petitioner.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
Mr. Justice BLACK, dissenting.
Petitioner was convicted for violation of the ‘membership clause’ of the Smith Act which imposes a penalty of up to twenty years’ imprisonment together with a fine of $20,000 upon anyone who ‘becomes or is a member of, or affiliates with, any * * * society, group, or assembly of persons (who teach, advocate, or encourage the overthrow of the existing government by force or violence), knowing the purposes thereof * * *.’  Rejecting numerous contentions urged for reversal, the Court upholds a six-year sentence imposed upon petitioner under the authority of its prior decisions in Dennis v. United States  and Yates v. United States.  My reasons for dissenting from this decision are primarily those set out by Mr. Justice BRENNAN-that § 4(f) of the Subversive Activities Control Act  bars prosecutions under the membership clause of the Smith Act-and Mr. Justice DOUGLAS-that the First Amendment absolutely forbids Congress to outlaw membership in a political party or similar association merely because one of the philosophical tenets of that group is that the existing government should be overthrown by force at some distant time in the future when circumstances may permit. There are, however, two additional points that I think should also be mentioned.
In an attempt to bring the issue of the constitutionality of the membership clause of the Smith Act within the authority of the Dennis and Yates cases, the Court has practically rewritten the statute under which petitioner stands convicted by treating the requirements of ‘activity’ and ‘specific intent’ as implicit in words that plainly do not include them. Petitioner’s conviction is upheld just as though the membership clause had always contained these requirements. It seems clear to me that neither petitioner nor anyone else could ever have guessed that this law would be held to mean what this Court now holds it does mean. For that reason, it appears that petitioner has been convicted under a law that is, at best, unconstitutionally vague and, at worst, ex post facto.  He has therefore been deprived of his right to be tried under a clearly defined, pre-existing ‘law of the land’ as guaranteed by the Due Process Clause and I think his conviction should be reversed on that ground. 
Secondly, I think it is important to point out the manner in which this case re-emphasizes the freedom-destroying nature of the ‘balancing test’ presently in use by the Court to justify its refusal to apply specific constitutional protections of the Bill of Rights. In some of the recent cases in which it has ‘balanced’ away the protections of the First Amendment, the Court has suggested that it was justified in the application of this ‘test’ because no direct abridgment of First Amendment freedoms was involved, the abridgment in each of these cases being, in the Court’s opinion, nothing more than ‘an incident of the informed exercise of a valid governmental function.’  A possible implication of the suggestion was that if the Court were confronted with what it would call a direct abridgment of speech, it would not apply the ‘balancing test’ but would enforce the protections of the First Amendment according to its own terms. This case causes me to doubt that such an implication is justified. Petitioner is being sent to jail for the express reason that he has associated with people who have entertained unlawful ideas and said unlawful things, and that of course is a direct abridgment of his freedoms of speech and assembly-under any definition that has ever been used for that term. Nevertheless, even as to this admittedly direct abridgment, the Court relies upon its prior decisions to the effect that the Government has power to abridge speech and assembly if its interest in doing so is sufficient to outweigh the interest in protecting these First Amendment freedoms. 
This, I think, demonstrates the unlimited breadth and danger of the ‘balancing test’ as it is currently being applied by a majority of this Court. Under that ‘test,’ the question in every case in which a First Amendment right is asserted is not whether there has been an abridgment of that right, not whether the abridgment of that right was intentional on the part of the Government, and not whether there is any other way in which the Government o uld accomplish a lawful aim without an invasion of the constitutionally guaranteed rights of the people. It is, rather, simply whether the Government has an interest in abridging the right involved and, if so, whether that interest is of sufficient importance, in the opinion of a majority of this Court, to justify the Government’s action in doing so. This doctrine, to say the very least, is capable of being used to justify almost any action Government may wish to take to suppress First Amendment freedoms.
^1 18 U.S.C. § 2385, 18 U.S.C.A. § 2385.
^2 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
^3 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356.
^4 50 U.S.C. § 783(f), 50 U.S.C.A. § 783(f).
^5 The fact that the Court’s rewriting of the statute, has in this case, narrowed the statute rather than broadened it does not change this conclusion. Petitioner has a right to have the constitutionality of the statute considered on the basis upon which it was originally written, for that was the condition of the statute when he violated it. The danger of the practice in which the Court is engaging is pointed up by its decision in the companion case, communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, in which it imposes the burden upon the members of that Party to guess as to what sections of the Subversive Activities Control Act will be held unconstitutional. The difficulty of that burden is tremendously increased by the decision in this case for they cannot know how many and what kind of additional requirements will be found to be ‘implied’ and placed into the ‘balance’ by which the constitutionality of questionable provisions of that Act will be determined.
^6 Cohen v. Hurley, 366 U.S. 117, 131, 81 S.Ct. 954, 972, 6 L.Ed.2d 156 (dissenting opinion). See also Konigsberg v. State Bar of California, 366 U.S. 36, 56, 81 S.Ct. 997, 1010, 6 L.Ed.2d 105 (dissenting opinion).
^7 Konigsberg v. State Bar of California, 366 U.S. 36, 51, 81 S.Ct. 997, 1007, 6 L.Ed.2d 105. See also Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653; In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. In each of these cases, I disagreed, as I still do, with the majority’s characterization of the abridgment involved as ‘incidental,’ as I understand that term to have significance in First Amendment cases. See particularly my dissenting opinion in the Konigsberg case, supra, 366 U.S. at pages 68-71, 81 S.Ct. at pages 1016-1018.
^8 The decisions in both of the cases upon which the Court here relies were rested on the ‘balancing test.’ See Dennis v. United States, supra, 341 U.S. at pages 506-511, 71 S.Ct. at pages 865-868; Yates v. United States, supra, 354 U.S. at page 321, 77 S.Ct. at page 1078.