367 U.S. 290 (1961), argued 10–11 Oct. 1960, decided 5 June 1961 by vote of 9 to 0; Harlan for the Court, Brennan, Warren, Black, and Douglas concurring. Like its companion case Scales v. United States (1961), Noto involved the constitutionality of the membership clause of the Smith Act. In this case, however, the Court unanimously reversed the judgment of conviction. Five of the justices rested the decision on the ground that the evidence at the trial was insufficient to show that the Communist party, of which Noto was a member, engaged in advocacy of the doctrine of forcible overthrow of the government and in advocacy of action to that end, as distinguished from advocacy of mere abstract doctrine. There must be substantial evidence, direct or circumstantial, of a call to violence “now or in the future” that is both “sufficiently strong and sufficiently persuasive” to lend color to the “ambiguous theoretical material” regarding Communist party teaching (p. 298) and also substantial evidence to justify the reasonable inference that the call to violence may fairly be imputed to the party as a whole and not merely to a narrow segment of it.
Justice William Brennan and Chief Justice Earl Warren would have directed the trial court to dismiss the indictment under the terms of the Internal Security Act, which they interpreted as granting immunity from prosecution under the membership clause of the Smith Act—an immunity, they said, that extends to “active and purposive membership” no less than to membership that is merely passive or nominal. Justices Hugo Black and William O. Douglas found the conviction invalid as a violation of the First Amendment.
Milton R. Konvitz