The Supreme Court decision in Noto v. United States, 367 U.S. 290 (1961) stands for the principle that the First Amendment’s right to free speech prohibits convicting individuals for the mere abstract teaching of the moral propriety of violence.

Noto was convicted under the membership clause of the Smith Act

The Court’s unanimous decision reversed the conviction of Buffalo-area communist John F. Noto, finding insufficient evidence to convict him for violations of the Smith Act of 1940. Arrested in August 1955, Noto became the first person in New York state tried under the membership clause of the Smith Act, which prohibits any person from organizing “any society, group or assembly of persons who teach, advocate or encourage the overthrow or destruction of . . . government by force or violence or becomes or is a member of, or affiliates with, any such society, group or assembly of persons.” In April 1956, a federal jury convicted Noto, who did not deny he was an active member of the Communist Party. After the Second Circuit Court of Appeals affirmed his conviction, Noto appealed to the Supreme Court.

Court ruled in favor of Noto; said abstract teaching was protected by First Amendment

On June 5, 1961, the Court issued its decisions in Communist Party of the United States v. Subversive Activities Control Board, Scales v. United States, and Noto. The Court upheld the Subversive Activities Control Act of 1950 in Subversive Activities Control Board and upheld the constitutionality of the membership clause of the Smith Act in Scales. However, the Court unanimously ruled in favor of John Noto.

Writing for the majority, Justice John Marshall Harlan II reasoned that there was insufficient evidence of present advocacy of illegal conduct to convict Noto. Citing Yates v. United States (1957), Harlan wrote: “[W]e reiterate now, that the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future. . . .”

Justice William J. Brennan Jr. and Chief Justice Earl Warren indicated that the prosecution was barred by a provision in the Internal Security Act, a position Brennan advocated in his dissent in Scales. Justices Hugo L. Black and William O. Douglas each wrote concurrences, indicating the prosecutions infringed on core First Amendment freedoms.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.‚Äč

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