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Vol. VI, No. 4
July, 1961

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This issue reports 30 recent decisions of the U.S. Supreme Court, 16 significant decisions of lower courts, 13 new cases raising new constitutional questions, as well as other decisions and new cases.

All of these cannot be highlighted here. (See list, next page.) Each reader is urged to scan these important cases and to analyze for himself what they may do to the U.S. Constitution and Bill of Rights.


June 5, 1961, the U.S. Supreme Court (5-4) held that the Communist Party, its officers and members, must register under the 1950 Internal Security Act, and can be sent to jail under the 1940 Smith Act. The C.P. decision was based on testimony on the character of the Party adduced at hearings before S.A.C.B. Apr. 1951 to July 1952. No additional testimony has been taken; some has been stricken as perjurious.

The 1961 decision in effect requires the Communist Party of July 1, 1952 to register, or go to jail.

Queries: Can this 1952 organization register in 1961? Can it be sent to jail and subjected to other penalties of the Act?

If it cannot, what must the Communist Party of 1961, with its post-1952 constitution and officers, do as a result of the decision?

Can a constitutional purpose be achieved by sending Scales to jail for six years in 1961 for "knowing membership in the Communist Party" several years after his membership ceased and after policy and personnel changes in the Party?

Can political concepts or organizations be jailed — or even accurately registered?

The World of Mr. Chief Justice Warren

"At this point, it should be observed that the vast bulk of the evidence introduced by the Government at the hearing before the Board related to the Party's activities prior to its disaffiliation from the Communist International in 1940. In order to link this stale evidence to the Party's current activities, with which the Act is concerned, the Board indulged in a presumption of continuity, whereby it reasoned that since the Party was under Soviet control prior to 1940, and since the Party still adheres to the principles of Soviet Communism, it must be presumed that the Party is still controlled by the Soviet Union. The validity of such a presumption is certainly dubious". . . .

". . . If the Court would remand on any one of the four errors which I have discussed, and I think each warrants a remand, the resolution of the difficult constitutional issues presented by this case would certainly be postponed, and perhaps made totally unnecessary. For, if further cross-examination of Gitlow based on the memoranda discredited his testimony, or if all of Budenz' testimony were stricken, or if the Board were required to find that the petitioner actually engaged in advocacy aimed at inciting action, or if the secrecy finding were stricken, the Government's case might be so weakened that it would be impossible for the Board to conclude, on the basis of the present record, that the petitioner is a Communist-action organization, as that is used in the statute". . . .

dissenting in C.P. v. S.A.C.B., 211.1)

The World of Mr. Justice Black

Balancing The First Amendment

"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 the Government could 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".

(dissenting in Scales v. U.S., 242.2)


"The Government is being told, in effect, that if it wishes to get convictions under the Smith Act, it must maintain a permanent staff of informers who are prepared to give up-to-date information with respect to the present policies of the Communist Party. Given the fact that such prosecutions are to be permitted at all, I do not disagree with the wisdom of the Court's decision to compel the Government to come forward with evidence to prove its charges in each particular case. But I think that it is also important to realize the overriding pre-eminence that such a system of laws gives to the perpetuation and encouragement of the practice of informing — a practice which, I think it is fair to say, has not always been considered the sort of system to which a wise government would entrust the security of a Nation. I have always thought, as I still do think, that this Government was built upon a foundation strong enough to assure its endurance without resort to practices which most of us think of as being associated only with totalitarian governments".

(dissenting in Noto v. U.S., 242.4)

The Worlds of Mr. Justice Frankfurter

Trade Union Political Action

"The Court-devised precept against avoidable conflict with Congress through unnecessary constitutional adjudication is not a requirement to distort an enactment in order to escape such adjudication. . . .

"This is too fine-spun a claim for constitutional recognition. The framers of the Bill of Rights lived in an era when overhanging threats to conduct deemed 'seditious' and lettres de cachet were current issues. Their concern was in protecting the right of the individual freely to himself — especially his political beliefs — in a public forum, untrammeled by fear of punishment or of governmental censure . . .

". . . we are asked by union members who oppose these expenditures [of union funds for political purposes] to protect their right to free speech — although they are as free to speak as ever — against governmental action which has permitted a union selected by democratic process to bargain for a union shop and to expend the funds thereby collected for purposes which are controlled by internal union choice. To do so would be to mutilate a scheme designed by Congress for the purpose of equitably sharing the cost of securing the benefits of union exertions;" . . .

(dissenting in I.A.M. v. Street, 56.3)

Communist Party Political Action

". . . It is wholly speculative now to foreshadow whether, or under what conditions, a member of the [Communist] Party may in the future apply for a passport, or seek government or defense-facility or labor-union employment, or, being an alien, become a party to a naturalization or a denaturalization proceeding. None of these things may happen. . . .

". . . The record here does not show that any present members, affiliates, or contributors of the Party have withdrawn under the . . . Act, or that any prospective members, affiliates, or contributors have been deterred from joining the Party or giving it their support. . . . It is thus impossible to say now what effect the provision of the Act affecting members of a registered organization will have on the Party". . . .

"We find that the self-incrimination challenge to §7(a) and (d), . . . is also premature at this time. . . . We cannot know now that the Party's officers will ever claim the privilege". . . .

(for the majority in C.P. v. S.A.C.B., 211.1)

The Worlds of Mr. Justice Douglas

"Belief in the principle of revolution is deep in our traditions. The Declaration of Independence proclaims it: . . . This right of revolution has been and is a part of the fabric of our institutions".

(dissenting in Scales v. U.S., 242.2)

". . . These are the reasons why, in my view, the bare requirement that the Communist Party register and disclose the names of its officers and directors is in line with the most exacting adjudication touching First Amendment activities".

(dissenting in C.P. v. S.A.C.B., 211.1)

U.S. Supreme Court Decisions Reported*

Important Lower Court Decisions*

Important New Cases