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.”