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But not all of them. Last week the court let stand the 1955 conviction of Junius Irving Scales, onetime Communist chief in the Carolinas, who had been sentenced to six years in prison. It also set aside the five-year sentence of John Francis Noto, chairman of the western New York subdistrict of the party. There was a fine distinction. Scales had been convicted of actively intending to bring off a revolution; but the Government had not proved that Noto was actually inciting anyone to violent action.
Justice John Marshall Harlan, writing for the majority in the Scales case, stated that a Communist may indeed be convicted—but only if he is an "active and purposive" party member. Thus the Justice Department must prove that the individual Communist has demonstrated "specific intent to accomplish overthrow." The job will not always be easy or even possible. But where it is, the U.S. will be able to throw U.S. Communists, of all degree and pecking order, into jail.