Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Preservation of the security of the Nation from its enemies, foreign and domestic, is the obligation of government and one of the foremost reasons for government to exist. Pursuit of this goal may lead government officials at times to trespass in areas protected by the guarantees of speech and press and may require the balancing away of rights that might be preserved inviolate at other times. The drawing of the line is committed, not exclusively but finally, to the Supreme Court. In this section, we consider a number of areas in which the necessity to draw lines has arisen.
Punishment of Advocacy
Criminal punishment for the advocacy of illegal or of merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Enactment of and prosecutions under the Sedition Act of 1798 1 and prosecutions under the federal espionage laws 2 and state sedition and criminal syndicalism laws 3 in the 1920s and early 1930s have been alluded to earlier. 4 But it was in the 1950s and the 1960s that the Supreme Court confronted First Amendment concepts fully in determining the degree to which government could proceed against persons and organizations that it believed were plotting and conspiring both to advocate the overthrow of government and to accomplish that goal.
The Smith Act of 1940 5 made it a criminal offense to knowingly or willfully to advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the government of the United States or of any state by force or violence, or to organize any association that teaches, advises, or encourages such an overthrow, or to become a member of or to affiliate with any such association. No case involving prosecution under this law was reviewed by the Supreme Court until, in Dennis v. United States, 6 it considered the convictions of eleven Communist Party leaders on charges of conspiracy to violate the advocacy and organizing sections of the statute. Chief Justice Vinson’s plurality opinion applied a revised clear and present danger test 7 and concluded that the evil sought to be prevented was serious enough to justify suppression of speech.
If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase ‘clear and present danger’ of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required. 8
The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. 9
Justice Frankfurter in concurrence developed a balancing test, which, however, he deferred to the congressional judgment in applying, concluding that
there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security. 10 Justice Jackson’s concurrence was based on his reading of the case as involving
a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. Here the government was dealing with
permanently organized, well-financed, semi-secret, and highly disciplined organizations plotting to overthrow the Government; under the First Amendment
it is not forbidden to put down force and violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose. 11 Justices Black and Douglas dissented separately, the former viewing the Smith Act as an invalid prior restraint and calling for reversal of the convictions for lack of a clear and present danger, the latter applying the Holmes-Brandeis formula of clear and present danger to conclude that
[t]o believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible. 12
In Yates v. United States, 13 the convictions of several second-string Communist Party leaders were set aside, a number ordered acquitted, and others remanded for retrial. The decision was based upon construction of the statute and appraisal of the evidence rather than on First Amendment claims, although each prong of the ruling seems to have been informed with First Amendment considerations. Thus, Justice Harlan for the Court wrote that the trial judge had given faulty instructions to the jury in advising that all advocacy and teaching of forcible overthrow was punishable, whether it was language of incitement or not, so long as it was done with an intent to accomplish that purpose. But the statute, the Justice continued, prohibited
advocacy of action, not merely
advocacy in the realm of ideas.
The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something. 14 Second, the Court found the evidence insufficient to establish that the Communist Party had engaged in the required advocacy of action, requiring the Government to prove such advocacy in each instance rather than presenting evidence generally about the Party. Additionally, the Court found the evidence insufficient to link five of the defendants to advocacy of action, but sufficient with regard to the other nine. 15
Compelled Registration of Communist Party
The Internal Security Act of 1950 provided for a comprehensive regulatory scheme by which
Communist-action organizations and
Communist-front organizations could be curbed. 16 Organizations found to fall within one or the other of these designations were required to register and to provide for public inspection membership lists, accountings of all money received and expended, and listings of all printing presses and duplicating machines; members of organizations which failed to register were required to register and members were subject to comprehensive restrictions and criminal sanctions. After a lengthy series of proceedings, a challenge to the registration provisions reached the Supreme Court, which sustained the constitutionality of the section under the First Amendment, only Justice Black dissenting on this ground. 17 Employing the balancing test, Justice Frankfurter for himself and four other Justices concluded that the threat to national security posed by the Communist conspiracy outweighed considerations of individual liberty, the impact of the registration provision in this area in any event being limited to whatever
public opprobrium and obloquy might attach. 18 Three Justices based their conclusion on findings that the Communist Party was an anti-democratic, secret organization that was subservient to a foreign power and that used more than speech in attempting to achieve its ends, and was therefore subject to extensive governmental regulation. 19
Punishment for Membership in an Organization that Engages in Proscribed Advocacy
The Smith Act provision making it a crime to organize or become a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence was used by the government against Communist Party members. In Scales v. United States, 20 the Court affirmed a conviction under this section and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course,
[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy. 21 Only an
active member of the Party – one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization – was to be punished, the Court said, not a
nominal, passive, inactive or purely technical member. 22
Disabilities Attaching to Membership in Proscribed Organizations
The consequences of being or becoming a member of a proscribed organization can be severe. Aliens are subject to deportation for such membership. 23 Congress made it unlawful for any member of an organization required to register as a
Communist-action or a
Communist-front organization to apply for a passport or to use a passport. 24 A now-repealed statute required as a condition of access to NLRB processes by any union that each of its officers must file affidavits that he was not a member of the Communist Party or affiliated with it. 25 The Court has sustained state bar associations in their efforts to probe into applicants’ membership in the Communist Party in order to determine whether there was knowing membership on the part of one sharing a specific intent to further the illegal goals of the organization. 26 A section of the Communist Control Act of 1954 was designed to keep the Communist Party off the ballot in all elections. 27 The most recent interpretation of this type of disability is United States v. Robel, 28 in which the Court held unconstitutional under the First Amendment a section of the Internal Security Act that made it unlawful for any member of an organization compelled to register as a
Communist-front organization to work in any defense facility. For the Court, Chief Justice Warren wrote that a statute that so infringed upon freedom of association must be much more narrowly drawn to take precise account of the evils at which it permissibly could be aimed. One could be disqualified from holding sensitive positions on the basis of active, knowing membership with a specific intent to further the unlawful goals of an organization, but that membership that was passive or inactive, or by a person unaware of the organization’s unlawful aims, or by one who disagreed with those aims, could not be grounds for disqualification, certainly not for a non-sensitive position. 29
A somewhat different matter is disqualifying a person for public benefits of some sort because of membership in a proscribed organization or because of some other basis ascribable to doubts about his loyalty. The First Amendment was raised only in dissent when in Flemming v. Nestor 30 the Court sustained a statute that required the termination of Social Security old-age benefits to an alien who was deported on grounds of membership in the Communist Party. Proceeding on the basis that no one was
entitled to Social Security benefits, Justice Harlan for the Court concluded that a rational justification for the law might be the deportee’s inability to aid the domestic economy by spending the benefits locally, although a passage in the opinion could be read to suggest that termination was permissible because alien Communists are undeserving of benefits. 31 Of considerable significance in First Amendment jurisprudence is Speiser v. Randall, 32 in which the Court struck down a state scheme for denying veterans’ property tax exemptions to
disloyal persons. The system, as interpreted by the state courts, denied the exemption only to persons who engaged in speech that could be criminally punished consistently with the First Amendment, but the Court found the vice of the provision to be that, after each claimant had executed an oath disclaiming his engagement in unlawful speech, the tax assessor could disbelieve the oath taker and deny the exemption, thereby placing on the claimant the burden of proving that he was loyal.
The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken fact-finding – inherent in all litigation – will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens . . . . In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free. 33
Employment Restrictions and Loyalty Oaths
An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates, unlawful or disloyal action. The Federal Government’s security investigation program has been tested numerous times and First Amendment issues raised, but the Supreme Court has never squarely confronted the substantive constitutional issues, and it has not dealt with the loyalty oath features of the federal program. 34 The Court has, however, had a long running encounter with state loyalty oath programs. 35
First encountered 36 was a loyalty oath for candidates for public office rather than one for public employees. Accepting the state court construction that the law required each candidate to
make oath that he is not a person who is engaged ‘in one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt, the Court unanimously sustained the provision in a one-paragraph per curiam opinion. 37 Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party. 38 For the Court, Justice Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason. 39 With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization’s purpose during their affiliation, or persons who had severed their associations upon knowledge of an organization’s purposes, or persons who had been members of an organization at a time when it was not unlawfully engaged. 40 Otherwise, the oath requirement was valid as
a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty and as being
reasonably designed to protect the integrity and competency of the service. 41
In the following Term, the Court sustained a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated; the statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification. 42 Justice Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state’s reasonable terms.
If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. 43 A state could deny employment based on a person’s advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy. 44 With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership. 45
Invalidated the same year was an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment
solely on the basis of organizational membership. Stressing that membership might be innocent, that one might be unaware of an organization’s aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims. 46 But subsequent cases firmly reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions. 47 In Shelton v. Tucker, 48 however, a five-to-four majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state’s interests, and had a considerable potential for abuse.
The Court relied on vagueness when loyalty oaths aimed at
subversives next came before it. In Cramp v. Board of Public Instruction, 49 it unanimously held an oath too vague that required one to swear, inter alia, that
I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party. Similarly, in Baggett v. Bullitt, 50 the Court struck down two oaths, one requiring teachers to swear that they
will by precept and example promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government, and the other requiring all state employees to swear, inter alia, that they would not
aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration of government. Although couched in vagueness terms, the Court’s opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the state could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow. 51
More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell 52 involved an oath that as supplemented would have been violated by one who
knowingly and willfully becomes or remains a member of the communist party . . . or any other organization having for its purposes the overthrow by force or violence of the government with
knowledge of said unlawful purpose of said organization. The law’s blanketing in of
knowing but guiltless membership was invalid, wrote Justice Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied. 53 Next, in Keyishian v. Board of Regents, 54 the oath provisions sustained in Adler 55 were declared unconstitutional. A number of provisions were voided as vague, 56 but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But
legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations. 57 Similarly, in Whitehill v. Elkins, 58 an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.
More recent cases do not illuminate whether membership changes in the Court presage a change in view with regard to the loyalty-oath question. In Connell v. Higginbotham 59 an oath provision reading
that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence was invalidated because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson 60 upheld a clause in an oath
that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method upon the construction that this clause was mere
repetition, whether for emphasis or cadence, of the first part of the oath, which was a valid
uphold and defend positive oath.
Legislative Investigations and the First Amendment
The power of inquiry by congressional and state legislative committees in order to develop information as a basis for legislation 61 is subject to some uncertain limitation when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. Although the Court initially indicated that it would scrutinize closely such inquiries in order to curb First Amendment infringement, 62 later cases balanced the interests of the legislative bodies in inquiring about both protected and unprotected associations and conduct against what were perceived to be limited restraints upon the speech and association rights of witnesses, and upheld wide-ranging committee investigations. 63 Later, the Court placed the balance somewhat differently and required that the investigating agency show
a subordinating interest which is compelling to justify the restraint on First Amendment rights that the Court found would result from the inquiry. 64 The issues in this field, thus, remain unsettled.
Interference with Vietnam War Effort
Possibly the most celebrated governmental action in response to dissent to the Vietnam War – the prosecution of Dr. Benjamin Spock and four others for conspiring to counsel, aid, and abet persons to evade the draft – failed to reach the Supreme Court. 65 Aside from a comparatively minor case, 66 the Court’s sole encounter with a Vietnam War protest allegedly involving protected
symbolic conduct was United States v. O’Brien. 67 That case affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his draft card.
We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. 68 Finding that the government's interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a
passive enforcement policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others. 69
Suppression of Communist Propaganda in the Mails
A 1962 statute authorizing the Post Office Department to retain all mail from abroad that was determined to be
communist political propaganda and to forward it to an addressee only upon his request was held unconstitutional in Lamont v. Postmaster General. 70 The Court held that to require anyone to request receipt of mail determined to be undesirable by the government was certain to deter and inhibit the exercise of First Amendment rights to receive information. 71 Distinguishing Lamont, the Court in 1987 upheld statutory classification as
political propaganda of communications or expressions by or on behalf of foreign governments, foreign
principals, or their agents, and reasonably adapted or intended to influence United States foreign policy. 72
The physical detention of materials, not their mere designation as ‘communist political propaganda,’ was the offending element of the statutory scheme [in Lamont]. 73
Exclusion of Certain Aliens as a First Amendment Problem
Although a nonresident alien might be able to present no claim, based on the First Amendment or on any other constitutional provision, to overcome a governmental decision to exclude him from the country, it was arguable that United States citizens who could assert a First Amendment interest in hearing the alien and receiving information from him, such as the right recognized in Lamont, could be able to contest such exclusion. 74 But the Court declined to reach the First Amendment issue and to place it in balance when it found that a governmental refusal to waive a statutory exclusion 75 was on facially legitimate and neutral grounds; the Court’s emphasis, however, upon the
plenary power of Congress over admission or exclusion of aliens seemed to indicate where such a balance might be drawn. 76