Whitney and freedom of association

California law allows punishment of membership in an organization
that advocated criminal syndicalism.

Raises the question:
 What degree of involvement with a subversive organization is
necessary before state can punish an individual for the illegal
speech of others in the organization?
 What did Whitney do? Was that enough to support
punishment?
 What is the SCT’s answer?

What kind of activity and/or mental state should be required to
punish someone in this circumstances?
Value of protecting association
 Why does this debate matter? What happens when officials go after
“members” of organizations with legal/illegal ends even if the
members didn’t advocate the illegal ends?
 Why is it important to protect association with others for expressive
purposes?
Dennis v. US – rejecting Gitlow deference
“Although no case subsequent to Whitney & Gitlow has expressly
overruled the majority opinions in those cases, there is little doubt
that subsequent opinions have inclined toward the Holmes-Brandeis
rationale.”
 What version of c&pd was SCT using by the time of Dennis?
 Holmes/Brandeis “ C&PD ” : There must be a clear & present
danger of immediate & serious harm to justify punishing speech
 What version of the test does the SCT in Dennis use?
Dennis & clear & present danger
 SCT Test:
“Whether the gravity of the evil, discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid the
danger.“
 What are government officials’ incentives under this test?
 What limits does Dennis’s version of the test put on judicial
discretion?
 Are judges incapable of protecting civil liberties in times of emergency?
 Would it be better to let Congress make the decision as to whether
speech is dangerous?
(Frankfurter)
Yates v. US – cutting back on Dennis
 Same issues as Dennis but lesser party leaders. Yates SCT
overturned Ds convictions. Justice Harlan:
 Interpreted
Smith Act to distinguish between punishing present
advocacy of action (urging someone to do something) and present
advocacy of doctrine (advocating belief in something).
 Claimed Smith Act didn’t allow punishment of the latter and that Yates
Ds advocated belief of violent overthrow
 Harlan contrasted Yates w/ Dennis Ds who urged people to action
Harlan’s Problem – Yates D’s were charged with same crimes/
tried on same evidence as Dennis D’s. All Ds were part of same
“conspiracy” and engaged in the same actions.
 By focusing on “content” & “facts” Harlan’s test moves away from
Dennis’s “clear & present danger” approach.
Scales v. United States – freedom of association revisited
 Yates made it so difficult to convict people under advocacy
portions of Smith Act, gov’t pursued people under membership
prong. Scales is the SCT’s last pronouncement on when gov’t can
punish people for membership in an organization w/ both legal
and illegal ends.
 A person can be punished for membership in an organization with
both legal and illegal ends if:



they are an active member
with knowledge of the organization's illegal activity,
and intent to further the organization's illegal ends.
 SCT interpreted Smith Act to comply with these requirements;
otherwise it would have punished association and not “personal
guilt.”