Shariah’s Black Box

The Court delivered its answer by not even addressing the First Amendment issue. What the Court did do was to limit the Smith Act to cases where the advocacy for the overthrow of the government was more than merely theoretical and to require a real nexus between the advocacy and some action that was being urged to achieve the treasonous goal.

In Scales v. US, 367 U.S. 203 (1961), the Court took another look at the Smith Act. In this case, the defendant sought to have his conviction for being a member of the Communist Party set aside on statutory, constitutional, and procedural grounds. While the procedural aspects are not relevant to this discussion, the statutory and constitutional parts of the case are. The first argument raised by the defendant-petitioner was based on the claim that another federal statute had been enacted that provided that mere office holding or membership in the Communist Party would not constitute a per se violation of any federal statute.[234] From this, the petitioner concocted the argument that the Smith Act’s membership clause had been repealed pro tanto. The Court rejected this argument on several grounds but importantly because the Court found that the petitioner’s Smith Act conviction was for being a member of an organization which called for the violent overthrow of theU.S. There was nothing unique about the Communist Party except its doctrine for violent overthrow; the Smith Act applied to any organization, not just to the Communist Party.

The petitioner also challenged his Smith Act conviction on per se constitutional grounds.[235] The petitioner argued that the membership clause of the Smith Act violated his Fifth and First Amendment rights. The Fifth Amendment claim essentially boiled down to this: Although the trial court instructed the jury that the defendant had to be an “active member” of the criminal group, in accord with the earlier decision in Yates which required a nexus between advocacy and action, the trial court did not require that the defendant actually participate in the criminal activity. It was enough that the defendant knew of the criminal designs of the group at large and that the defendant was an active member, even if such activity was wholly legal. As such, the petitioner argued that this violated his Fifth Amendment rights to due process because it convicts a person for mere association and not some overt criminal act. The First Amendment claim was similarly an argument that his right to freedom of association was unconstitutionally infringed by virtue of the threat of criminal prosecution for mere non-criminal membership.

The Court rejected the argument holding as it should have under conspiracy doctrine:

Any thought that due process puts beyond the reach of the criminal law all individual associational relationships, unless accompanied by the commission of specific acts of criminality, is dispelled by familiar concepts of the law of conspiracy and complicity. While both are commonplace in the landscape of the criminal law, they are not natural features. Rather they are particular legal concepts manifesting the more general principle that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior. The fact that Congress has not resorted to either of these familiar concepts means only that the enquiry here must direct itself to an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability.  In this instance it is an organization which engages in criminal activity, and we can perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act.[236]

Thus, the Court concluded that a Smith Act membership conviction will stand when (a) the defendant knows (b) that the group to which the membership attaches intends criminal purposes and (c) that the defendant’s membership evidences a specific intent to promote the criminal goals of the organization (d) even if the defendant’s membership and involvement is not itself criminal activity.

About David Yerushalmi

Mr. Yerushalmi is a lawyer specializing in litigation and risk analysis, especially as it relates to geo-strategic policy, national security, international business relations, securities law, disclosure and due diligence requirements for domestic and international concerns. David Yerushalmi has been involved in international legal and constitutional matters for over 25 years. David Yerushalmi is today considered an expert on Islamic law and its intersection with Islamic terrorism and national security. In this capacity, he has published widely on the subject including the principle critical scholarship on Shariah-compliant finance published in the Utah Law Review (2008, Issue 3). This work and the empirical investigation known as the Mapping Shariah project in America was the focus of a recent monograph published by the McCormack Foundation and the Center for Security Policy.