The infamous “membership clause” of the Smith Act makes it a criminal offense to be a “knowing” member of any organization which “advocates” the violent overthrow of the government. Evidence of specific actions aimed at revolution is not required for prosecution; belief is the crime. While other sections of the Smith Act have been freely used in the legal assault upon the Communist party, this clause has lain dormant for two decades. Last year it claimed its first victim.
In June, 1960, a bitterly divided Supreme Court upheld the conviction of Junius Scales, once a Communist functionary in North Carolina. On the same day, taking back with its left hand the permission it gave with its right, the Court ordered the release of John F. Noto, another one-time Communist at the bar for the same offense. The display of legalistic legerdemain with which the justices distinguished the two cases was bewildering. But the effect of the Noto decision, which spelled out exceedingly strict requirements concerning the type of evidence admissible in “membership clause” cases, was clear. The Department of Justice quickly abandoned its plans for further prosecutions, complaining that it was unable to furnish the kind of evidence demanded by the Court. For the time being, at least, the “membership clause” appears to be a dead letter....
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