Whitney and freedom of association

1. Whitney and freedom of association • California law allowed punishment of membership in an organization that advocated criminal syndicalism. • Raises the question: • What degree of involvement with a subversive organization is necessary before an individual who does not actually commit a crime can be criminally guilty for the illegal speech of others in the organization? • Whitney was an active officer and clearly had knowledge of the organization’s support of violence. • SCT said “knowledge” and “membership” are enough • Can we extrapolate – why not punish someone if they were “reckless” or “negligent”? How active a member does one have to be?

2. 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?

3. 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 “Clear & Present Danger”: There must be a clear & present danger of immediate & serious harm • Is this the version of c&pd that SCT adopts? • No – that would be way too easy.

4. 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)

5. Yates v. US – cutting back on Dennis • Involved the same issues as Dennis but lesser party leaders. SCT overturned Ds convictions in Yates. Justice Harlan did this by: • Interpreting Smith Act to distinguish between punishing present advocacy of action(urging someone to do something) and present advocacy of doctrine (advocating belief in something). • Arguing that 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 Evidentiary Problem – Yates D’s were charged with same crimes & tried on same evidence as Dennis D’s. Yates and Dennis 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.

6. 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 activemember • 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.”