Sunday, February 10, 2008 5:22:15 PM
# 6,,,1992 CONSTITUTION OF THE UNITED STATES]
[Page 1020-1187]
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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Provisions of the Federal Election Campaign Act requiring the
reporting and disclosure of contributions and expenditures to and by
political organizations, including the maintenance by such organizations
of records of everyone contributing more than $10 and the reporting by
individuals and groups that are not candidates or political committees
who contribute or expend more than $100 a year for the purpose of
advocating the election or defeat of an identified candidate, were
sustained.\233\ ``[C]ompelled disclosure, in itself, can seriously
infringe on privacy of association and belief guaranteed by the First
Amendment. . . . We long have recognized
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the significant encroachments on First Amendment rights of the sort that
compelled disclosure imposes cannot be justified by a mere showing of
some legitimate governmental interest. . . . We have required that the
subordinating interests of the State must survive exacting scrutiny. We
have also insisted that there be a `relevant correlation' or
`substantial relation' between the governmental interest and the
information required to be disclosed.'\234\ The governmental interests
effectuated by these requirements--providing the electorate with
information, deterring corruption and the appearance of corruption, and
gathering data necessary to detect violations--were found to be of
sufficient magnitude to be validated even though they might incidentally
deter some persons from contributing.\235\ A claim that contributions to
minor parties and independents should have a blanket exemption from
disclosure was rejected inasmuch as an injury was highly speculative;
but any such party making a showing of a reasonable probability that
compelled disclosure of contributors' names would subject them to
threats or reprisals could obtain an exemption from the courts.\236\ The
Buckley Court also narrowly construed the requirement of reporting
independent contributions and expenditures in order to avoid
constitutional problems.\237
\233\Buckley v. Valeo, 424 U.S. 1, 60-84 (1976).
\234\Id. at 64 (footnote citations omitted).
\235\Id. at 66-68.
\236\Id. at 68-74. Such a showing, based on past governmental
and private hostility and harassment, was made in Brown v. Socialist
Wrokers '74 Campaign Comm., 459 U.S. 87 (1982).
\237\424 U.S. at 74-84.
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Conflict Between Organization and Members.--It is to be expected
that disputes will arise between an organization and some of its
members, and that First Amendment principles may be implicated. Of
course, unless there is some governmental connection, there will be no
federal constitutional application to any such controversy.\238\ But at
least in some instances, when government compels membership in an
organization or in some manner lends its authority to such compulsion,
there may well be constitutional limitations. Disputes implicating such
limitations can arise in connection with union shop labor agreements
permissible under the National Labor Relations Act and the Railway Labor
Act.\239
\238\The Labor Management Reporting and Disclosure Act of 1959,
73 Stat. 537, 29 U.S.C. Sec. Sec. 411-413, enacted a bill of rights for
union members, designed to protect, inter alia, freedom of speech and
assembly and the right to participate in union meetings on political and
economic subjects.
\239\Sec. 8(a)(3) of the Labor-Management Relations Act of 1947,
61 Stat. 140, 29 U.S.C. Sec. 158(a)(3), permits the negotiation of union
shop but not closed shop agreements, which, however, may be outlawed by
contrary state laws. Sec. 14(b), 61 Stat. 151, 29 U.S.C. Sec. 164(b).
See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335
U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949).
In industries covered by the Railway Labor Act, union shop agreements
may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45
U.S.C. Sec. 152, Eleventh; Railway Employees Dept. v. Hanson, 351 U.S.
225 (1956).
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Initially, the Court avoided constitutional issues in resolving
a challenge by union shop employees to use of their dues money for
political causes. Acknowledging ``the utmost gravity' of the
constitutional issues, the Court determined that Congress had intended
that dues money obtained through union shop agreements should be used
only to support collective bargaining and not in support of other
causes.\240\ Justices Black and Douglas, in separate opinions, would
have held that Congress could not constitutionally provide for
compulsory membership in an organization which could exact from members
money which the organization would then spend on causes which the
members opposed; Justices Frankfurter and Harlan, also reaching the
constitutional issue, would have held that the First Amendment was not
violated when government did not compel membership but merely permitted
private parties to enter into such agreements and that in any event so
long as members were free to espouse their own political views the use
by a union of dues money to support political causes which some members
opposed did not violate the First Amendment.\241
\240\International Ass'n of Machinists v. Street, 367 U.S. 740
(1961). The quoted phrase is at 749.
\241\Id. at 775 (Justice Douglas concurring), 780 (Justice Black
dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the
same day, a majority of the Court declined, in Lathrop v. Donohue, 367
U.S. 820 (1961), to reach the constitutional issues presented by roughly
the same fact situation in a suit by lawyers compelled to join an
``integrated bar.' These issues were faced squarely in Keller v. State
Bar of California, 496 U.S. 1 (1990). An integrated state bar may not,
against a members' wishes, devote compulsory dues to ideological or
other political activities not ``necessarily or reasonably incurred for
the purpose of regulating the legal profession or improving the quality
of legal service available to the people of the State.' Id. at 14.
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In Abood v. Detroit Board of Education,\242\ the Court applied
Hanson and Street to the public employment context. Recognizing that
employee associational rights were clearly restricted by any system of
compelled support, because the employees had a right not to associate,
not to support, the Court nonetheless found the governmental interests
served by the agency shop provision--the promotion of labor peace and
stability of employer-employee relations--to be of overriding importance
and to justify the impact upon employee freedom.\243\ But a different
balance was drawn
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when the Court considered whether employees compelled to support the
union were constitutionally entitled to object to the use of those
exacted funds to support political candidates or to advance ideological
causes not germane to the union's duties as collective-bargaining
representative. To compel one to expend funds in such a way is to
violate his freedom of belief and the right to act on those beliefs just
as much as if government prohibited him from acting to further his own
beliefs.\244\ However, the remedy was not to restrain the union from
making non-collective bargaining related expenditures but to require
that those funds come only from employees who do not object. Therefore,
the lower courts were directed to oversee development of a system
whereby employees could object generally to such use of union funds and
could obtain either a proportionate refund or reduction of future
exactions.\245\ Later, the Court further tightened the requirements. A
proportionate refund is inadequate because ``even then the union obtains
an involuntary loan for purposes to which the employee objects;'\246\
an advance reduction of dues corrects the problem only if accompanied by
sufficient information by which employees may gauge the propriety of the
union's fee.\247\ Therefore, the union procedure must also ``provide for
a reasonably prompt decision by an impartial decisionmaker.'\248
\242\431 U.S. 209 (1977). That a public entity was the employer
and the employees consequently were public employees was deemed
constitutionally immaterial for the application of the principles of
Hanson and Street, id. at 226-32, but Justice Powell found the
distinction between public and private employment crucial. Id. at 244.
\243\Id. at 217-23. The compelled support was through the agency
shop device. Id. at 211, 217 n. 10. Justice Powell, joined by Chief
Justice Burger and Justice Blackmun, would have held that compelled
support by public employees of unions violated their First Amendment
rights. Id. at 244. For an argument over the issue of corporate
political contributions and shareholder rights, see First National Bank
v. Bellotti, 435 U.S. 765, 792-95 (1978), and id. at 802, 812-21
(Justice White dissenting).
\244\431 U.S. at 232-37.
\245\Id. at 237-42. On the other hand, nonmembers may be charged
for such general union expenses as contributions to state and national
affiliates, expenses of sending delegates to state and national union
conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty
Ass'n, 500 U.S. 507 (1991).
\246\Ellis v. Brotherhood of Railway, Airline & Steamship
Clerks, 466 U.S. 435 (1984).
\247\Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
\248\Id. at 309.
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On a related matter, the Court held that a labor relations body
could not prevent a union member or employee represented exclusively by
a union from speaking out at a public meeting on an issue of public
concern, simply because the issue was a subject of collective bargaining
between the union and the employer.\249
\249\Madison School Dist. v. WERC, 429 U.S. 167 (1977).
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Maintenance of National Security and the First Amendment
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
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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 which 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 of ideas did not originate in
the United States in 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 1920's and early 1930's have been
alluded to earlier.\4\ But it was in the 1950's and the 1960's that the
Supreme Court confronted First Amendment concepts fully in determining
the degree to which government could proceed against persons and
organizations which it believed were plotting and conspiring both to
advocate the overthrow of government and to accomplish that goal.
\1\Supra, p.1022.
\2\Supra, pp.1022-24, 1036-38. The cases included Schenck v.
United States, 249 U.S. 47 (1919) (affirming conviction for attempting
to disrupt conscription by circulation of leaflets bitterly condemning
the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming
conviction for attempting to create insubordination in armed forces
based on one speech advocating socialism and opposition to war, and
praising resistance to the draft); Abrams v. United States, 250 U.S. 616
(1919) (affirming convictions based on two leaflets, one of which
attacked President Wilson as a coward and hypocrite for sending troops
into Russia and the other of which urged workers not to produce
materials to be used against their brothers).
\3\Supra, p.1039. The cases included Gitlow v. New York, 268
U.S. 652 (1925) (affirming conviction based on publication of
``manifesto' calling for the furthering of the ``class struggle'
through mass strikes and other mass action); Whitney v. California, 274
U.S. 357 (1927) (affirming conviction based upon adherence to party
which had platform rejecting parliamentary methods and urging a
``revolutionary class struggle,' the adoption of which defendant had
opposed).
\4\See also Taylor v. Mississippi, 319 U.S. 583 (1943), setting
aside convictions of three Jehovah's Witnesses under a statute which
prohibited teaching or advocacy intended to encourage violence,
sabotage, or disloyalty to the government after the defendants had said
that it was wrong for the President ``to send our boys across in uniform
to fight our enemies' and that boys were being killed ``for no purpose
at all.' The Court found no evil or sinister purpose, no advocacy of or
incitement to subversive action, and no threat of clear and present
danger to government.
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The Smith Act of 1940\5\ made it a criminal offense for anyone
to knowingly or willfully 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 for anyone to
organize any association which teaches, advises, or encourages such an
overthrow, or for anyone to become a member of or to affiliate with any
such association. No case involving pros
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ecution 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 for the Court 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
\5\Ch. 439, 54 Stat. 670, 18 U.S.C. Sec. 2385.
\6\341 U.S. 494 (1951).
\7\Id. at 510, quoted supra, p. 1023.
\8\Id. at 509.
\9\Id. at 510-11.
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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
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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
\10\Id. at 517, 542
\11\Id. at 561, 572, 575.
\12\Id. at 579 (Justice Black dissenting), 581, 589 (Justice
Douglas dissenting).
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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
\13\354 U.S. 298 (1957).
\14\Id. at 314, 315-16, 320, 324-25.
\15\Id. at 330-31, 332. Justices Black and Douglas would have
held the Smith Act unconstitutional. Id. at 339. Justice Harlan's
formulation of the standard by which certain advocacy could be punished
was noticeably stiffened in Brandenburg v. Ohio, 395 U.S. 444 (1969).
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Compelled Registration of Communist Party.--The Internal
Security Act of 1950 provided for a comprehensive regulatory scheme by
which ``Communist-action organizations' and ``Com
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munist-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 the premise that the Communist Party
was an anti-democratic, secret organization, subservient to a foreign
power, utilizing speech-plus in attempting to achieve its ends and
therefore subject to extensive governmental regulation.\19
\16\Ch. 1024, 64 Stat. 987. Sections of the Act requiring
registration of Communist-action and Communist-front organizations and
their members were repealed in 1968. Pub. L. 90-237, Sec. 5, 81 Stat.
766.
\17\Communist Party v. SACB, 367 U.S. 1 (1961). The Court
reserved decision on the self-incrimination claims raised by the Party.
The registration provisions ultimately floundered on this claim.
Albertson v. SACB, 382 U.S. 70 (1965).
\18\Id. at 88-105. The quoted phrase is id. at 102.
\19\Id. at 170-175 (Justice Douglas dissenting on other
grounds), 191 (Justice Brennan and Chief Justice Warren dissenting on
other grounds). Justice Black's dissent on First Amendment grounds
argued that ``Congress has [no] power to outlaw an association, group or
party either on the ground that it advocates a policy of violent
overthrow of the existing Government at some time in the distant future
or on the ground that it is ideologically subservient to some foreign
country.' Id. at 147.
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Punishment for Membership in an Organization Which Engages in
Proscribed Advocacy.--It was noted above that the Smith Act also
contained a provision making it a crime to organize or become a member
of an organization which teaches, advocates, or encourages the overthrow
of government by force or violence.\20\ The Government used this
authority to proceed against Communist Party members. In Scales v.
United States,\21\ the Court affirmed a conviction under this section
and held it constitutional against First Amendment attack. Advocacy such
as the Communist Party
\20\Supra, p.1067.
\21\367 U.S. 203 (1961). Justices Black and Douglas dissented on
First Amendment grounds, id. at 259, 262, while Justice Brennan and
Chief Justice Warren dissented on statutory grounds. Id. at 278
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engaged in, Justice Harlan wrote for the Court, was unprotected
under Dennis, and he could see no reason why membership which
constituted a purposeful form of complicity in a group engaging in
such advocacy should be a protected form of association. Of course,
``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 . . . [t]he clause does not make criminal all
association with an organization which has been shown to engage in
illegal advocacy.' 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
\22\Id. 228-30. In Noto v. United States, 367 U.S. 290 (1961),
the Court reversed a conviction under the membership clause because the
evidence was insufficient to prove that the Party had engaged in
unlawful advocacy. ``[T]he 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 which is both sufficiently strong and sufficiently
pervasive to lend color to the otherwise ambiguous theoretical material
regarding Communist Party teaching, and to justify the inference that
such a call to violence may fairly be imputed to the Party as a whole,
and not merely to some narrow segment of it.' Id. at 297-98.
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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
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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 which made it unlawful for any member of an organization
compelled to register as a ``Communist-action' or ``Communist-front'
organization to work thereafter in any defense facility. For the Court,
Chief Justice Warren wrote that a statute which 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 which 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
\23\Supra, pp.280-81. See 66 Stat. 205 (1952), 8 U.S.C.
Sec. 1251(a)(6). ``Innocent' membership in an organization which
advocates violent overthrow of the government is apparently insufficient
to save an alien from deportation. Galvan v. Press, 347 U.S. 522 (1954).
More recent cases, however, seem to impose a high standard of proof on
the Government to show a ``meaningful association,' as a matter of
statutory interpretation. Rowoldt v. Perfetto, 355 U.S. 115 (1957);
Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963).
\24\Subversive Activities Control Act of 1950, Sec. 6, ch. 1024,
64 Stat. 993, 50 U.S.C. Sec. 785. The section was declared
unconstitutional in Aptheker v. Secretary of State, 378 U.S. 500 (1964),
as an infringement of the right to travel, a liberty protected by the
due process clause of the Fifth Amendment. But the Court considered the
case as well in terms of its restrictions on ``freedom of association,'
emphasizing that the statute reached membership whether it was with
knowledge of the organization's illegal aims or not, whether it was
active or not, and whether the member intended to further the
organization's illegal aims. Id. at 507-14. But see Zemel v. Rusk, 381
U.S. 1, 16-17 (1965), in which the Court denied that State Department
area restrictions in its passport policies violated the First Amendment,
because the policy inhibited action rather than expression, a
distinction the Court continued in Haig v. Agee, 453 U.S. 280, 304-10
(1981).
\25\This part of the oath was sustained in American
Communications Ass'n v. Douds, 339 U.S. 382 (1950), and Osman v. Douds,
339 U.S. 846 (1950). With regard to another part of the required oath,
see supra, p.1055.
\26\Konigsberg v. State Bar of California, 366 U.S. 36 (1961);
In re Anastaplo, 366 U.S. 82 (1961); Law Students Civil Rights Research
Council v. Wadmond, 401 U.S. 154 (1971). Membership alone, however,
appears to be an inadequate basis on which to deny admission. Id. at
165-66; Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Schware v.
Board of Bar Examiners, 353 U.S. 232 (1957).
\27\Ch. 886, Sec. 3, 68 Stat. 775, 50 U.S.C. Sec. 842. The
section was at issue without a ruling on the merits in Mitchell v.
Donovan, 290 F. Supp. 642 (D. Minn. 1968) (ordering names of Communist
Party candidates put on ballot); 300 F. Supp. 1145 (D. Minn. 1969)
(dismissing action as moot); 398 U.S. 427 (1970) (dismissing appeal for
lack of jurisdiction).
\28\389 U.S. 258 (1967).
\29\Id. at 265-66. See also Schneider v. Smith, 390 U.S. 17
(1968).
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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 which required the termination
of Social Security old age benefits to an
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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 which could be criminally punished consistent 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, thus placing on the claimant the burden of proof of
showing 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
\30\363 U.S. 603 (1960). Justice Black argued the applicability
of the First Amendment. Id. at 628 (dissenting). Chief Justice Warren
and Justices Douglas and Brennan also dissented. Id. at 628, 634.
\31\Id. at 612. The suggestive passage reads: ``Nor . . . can it
be deemed irrational for Congress to have concluded that the public
purse should not be utilized to contribute to the support of those
deported on the grounds specified in the statute.' Ibid. But see
Sherbert v. Verner, 374 U.S. 398, 404-05, 409 n.9 (1963). While the
right-privilege distinction is all but moribund, Flemming has been
strongly reaffirmed in recent cases by emphasis on the noncontractual
nature of such benefits. Richardson v. Belcher, 404 U.S. 78, 80-81
(1971); United States Railroad Retirement Board v. Fritz, 449 U.S. 166,
174 (1980).
\32\357 U.S. 513 (1958).
\33\Id. at 526. For a possible limiting application of the
principle, see Law Students Civil Rights Research Council v. Wadmond,
401 U.S. 154, 162-64 (1971), and id. at 176-78 (Justices Black and
Douglas dissenting), id. at 189 n.5 (Justices Marshall and Brennan
dissenting).
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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 com
[[Page 1074]]
bine 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 which 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
\34\The federal program is primarily grounded in two Executive
Orders by President Truman and President Eisenhower, E.O. 9835, 12 Fed.
Reg. 1935 (1947), and E.O. 10450, 18 Fed. Reg. 2489 (1953), and a
significant amendatory Order issued by President Nixon, E.O. 11605, 36
Fed. Reg. 12831 (1971). Statutory bases include 5 U.S.C. Sec. Sec. 7311,
7531-32. Cases involving the program were decided either on lack of
authority for the action being reviewed, e.g., Cole v. Young, 351 U.S.
536 (1956); and Peters v. Hobby, 349 U.S. 331 (1955), or on procedural
due process grounds, Greene v. McElroy, 360 U.S. 474 (1959); Cafeteria &
Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). But cf. United
States v. Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17
(1968). A series of three-judge district court decisions, however,
invalidated federal loyalty oaths and inquiries. Soltar v. Postmaster
General, 277 F. Supp. 579 (N.D. Calif. 1967); Haskett v. Washington, 294
F. Supp. 912 (D.D.C. 1968); Stewart v. Washington, 301 F. Supp. 610
(D.D.C. 1969); National Ass'n of Letter Carriers v. Blount, 305 F. Supp.
546 (D.D.C. 1969) (no-strike oath).
\35\So-called negative oaths or test oaths are dealt with in
this section; for the positive oaths, see supra, pp.1055-56.
---------------------------------------------------------------------------
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
did uphold 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
[[Page 1075]]
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
\36\Test oaths had first reached the Court in the period
following the Civil War, at which time they were voided as ex post facto
laws and bills of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277
(1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867)
\37\Gerende v. Board of Supervisors of Elections, 341 U.S. 56
(1951) (emphasis original). In Indiana Communist Party v. Whitcomb, 414
U.S. 411 (1974), a requirement that parties and candidates seeking
ballot space subscribe to a similar oath was voided because the oath's
language did not comport with the advocacy standards of Brandenburg v.
Ohio, 395 U.S. 444 (1969). Four Justices concurred more narrowly. 414
U.S. at 452 n.3. See also Whitcomb v. Communist Party of Indiana, 410
U.S. 976 (1973).
\38\Garner v. Board of Public Works, 341 U.S. 716 (1951).
Justice Frankfurter dissented in part on First Amendment grounds, id. at
724, Justice Burton dissented in part, id. at 729, and Justices Black
and Douglas dissented completely, on bill of attainder grounds, id. at
731.
\39\Id. at 720. Justices Frankfurter and Burton agreed with this
ruling. Id. at 725-26, 729-30.
\40\Id. at 723-24.
\41\Id. at 720-21. Justice Frankfurter objected that the oath
placed upon the takers the burden of assuring themselves that every
organization to which they belonged or had been affiliated with for a
substantial period of time had not engaged in forbidden advocacy.
---------------------------------------------------------------------------
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 which so advocated; the statute had been supplemented
by a provision applicable to teachers calling for the drawing up of a
list of organizations which 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?
[[Page 1076]]
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
\42\Adler v. Board of Education, 342 U.S. 485 (1952). Justice
Frankfurter dissented because he thought no party had standing. Id. at
497. Justices Black and Douglas dissented on First Amendment grounds.
Id. at 508.
\43\Id. at 492.
\44\Ibid.
\45\Id. at 494-96.
---------------------------------------------------------------------------
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, while 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.
\46\Wieman v. Updegraff, 344 U.S. 183 (1952).
\47\Beilan v. Board of Education, 357 U.S. 399 (1958); Lerner v.
Casey, 357 U.S. 458 (1958); Nelson v. County of Los Angeles, 362 U.S. 1
(1960). Compare Slochower v. Board of Higher Education, 350 U.S. 551
(1956). The self-incrimination aspects of these cases are considered
infra, under analysis of the Fifth Amendment.
\48\364 U.S. 479 (1960). ``It is not disputed that to compel a
teacher to disclose his every associational tie is to impair that
teacher's right of free association, a right closely allied to freedom
of speech and a right which, like free speech, lies at the foundation of
a free society.' Id. at 485-86. Justices Frankfurter, Clark, Harlan,
and Whittaker dissented. Id. at 490, 496.
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[Page 1020-1187]
[[Page 1020]]
FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Provisions of the Federal Election Campaign Act requiring the
reporting and disclosure of contributions and expenditures to and by
political organizations, including the maintenance by such organizations
of records of everyone contributing more than $10 and the reporting by
individuals and groups that are not candidates or political committees
who contribute or expend more than $100 a year for the purpose of
advocating the election or defeat of an identified candidate, were
sustained.\233\ ``[C]ompelled disclosure, in itself, can seriously
infringe on privacy of association and belief guaranteed by the First
Amendment. . . . We long have recognized
[[Page 1064]]
the significant encroachments on First Amendment rights of the sort that
compelled disclosure imposes cannot be justified by a mere showing of
some legitimate governmental interest. . . . We have required that the
subordinating interests of the State must survive exacting scrutiny. We
have also insisted that there be a `relevant correlation' or
`substantial relation' between the governmental interest and the
information required to be disclosed.'\234\ The governmental interests
effectuated by these requirements--providing the electorate with
information, deterring corruption and the appearance of corruption, and
gathering data necessary to detect violations--were found to be of
sufficient magnitude to be validated even though they might incidentally
deter some persons from contributing.\235\ A claim that contributions to
minor parties and independents should have a blanket exemption from
disclosure was rejected inasmuch as an injury was highly speculative;
but any such party making a showing of a reasonable probability that
compelled disclosure of contributors' names would subject them to
threats or reprisals could obtain an exemption from the courts.\236\ The
Buckley Court also narrowly construed the requirement of reporting
independent contributions and expenditures in order to avoid
constitutional problems.\237
\233\Buckley v. Valeo, 424 U.S. 1, 60-84 (1976).
\234\Id. at 64 (footnote citations omitted).
\235\Id. at 66-68.
\236\Id. at 68-74. Such a showing, based on past governmental
and private hostility and harassment, was made in Brown v. Socialist
Wrokers '74 Campaign Comm., 459 U.S. 87 (1982).
\237\424 U.S. at 74-84.
---------------------------------------------------------------------------
Conflict Between Organization and Members.--It is to be expected
that disputes will arise between an organization and some of its
members, and that First Amendment principles may be implicated. Of
course, unless there is some governmental connection, there will be no
federal constitutional application to any such controversy.\238\ But at
least in some instances, when government compels membership in an
organization or in some manner lends its authority to such compulsion,
there may well be constitutional limitations. Disputes implicating such
limitations can arise in connection with union shop labor agreements
permissible under the National Labor Relations Act and the Railway Labor
Act.\239
\238\The Labor Management Reporting and Disclosure Act of 1959,
73 Stat. 537, 29 U.S.C. Sec. Sec. 411-413, enacted a bill of rights for
union members, designed to protect, inter alia, freedom of speech and
assembly and the right to participate in union meetings on political and
economic subjects.
\239\Sec. 8(a)(3) of the Labor-Management Relations Act of 1947,
61 Stat. 140, 29 U.S.C. Sec. 158(a)(3), permits the negotiation of union
shop but not closed shop agreements, which, however, may be outlawed by
contrary state laws. Sec. 14(b), 61 Stat. 151, 29 U.S.C. Sec. 164(b).
See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335
U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949).
In industries covered by the Railway Labor Act, union shop agreements
may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45
U.S.C. Sec. 152, Eleventh; Railway Employees Dept. v. Hanson, 351 U.S.
225 (1956).
---------------------------------------------------------------------------
[[Page 1065]]
Initially, the Court avoided constitutional issues in resolving
a challenge by union shop employees to use of their dues money for
political causes. Acknowledging ``the utmost gravity' of the
constitutional issues, the Court determined that Congress had intended
that dues money obtained through union shop agreements should be used
only to support collective bargaining and not in support of other
causes.\240\ Justices Black and Douglas, in separate opinions, would
have held that Congress could not constitutionally provide for
compulsory membership in an organization which could exact from members
money which the organization would then spend on causes which the
members opposed; Justices Frankfurter and Harlan, also reaching the
constitutional issue, would have held that the First Amendment was not
violated when government did not compel membership but merely permitted
private parties to enter into such agreements and that in any event so
long as members were free to espouse their own political views the use
by a union of dues money to support political causes which some members
opposed did not violate the First Amendment.\241
\240\International Ass'n of Machinists v. Street, 367 U.S. 740
(1961). The quoted phrase is at 749.
\241\Id. at 775 (Justice Douglas concurring), 780 (Justice Black
dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the
same day, a majority of the Court declined, in Lathrop v. Donohue, 367
U.S. 820 (1961), to reach the constitutional issues presented by roughly
the same fact situation in a suit by lawyers compelled to join an
``integrated bar.' These issues were faced squarely in Keller v. State
Bar of California, 496 U.S. 1 (1990). An integrated state bar may not,
against a members' wishes, devote compulsory dues to ideological or
other political activities not ``necessarily or reasonably incurred for
the purpose of regulating the legal profession or improving the quality
of legal service available to the people of the State.' Id. at 14.
---------------------------------------------------------------------------
In Abood v. Detroit Board of Education,\242\ the Court applied
Hanson and Street to the public employment context. Recognizing that
employee associational rights were clearly restricted by any system of
compelled support, because the employees had a right not to associate,
not to support, the Court nonetheless found the governmental interests
served by the agency shop provision--the promotion of labor peace and
stability of employer-employee relations--to be of overriding importance
and to justify the impact upon employee freedom.\243\ But a different
balance was drawn
[[Page 1066]]
when the Court considered whether employees compelled to support the
union were constitutionally entitled to object to the use of those
exacted funds to support political candidates or to advance ideological
causes not germane to the union's duties as collective-bargaining
representative. To compel one to expend funds in such a way is to
violate his freedom of belief and the right to act on those beliefs just
as much as if government prohibited him from acting to further his own
beliefs.\244\ However, the remedy was not to restrain the union from
making non-collective bargaining related expenditures but to require
that those funds come only from employees who do not object. Therefore,
the lower courts were directed to oversee development of a system
whereby employees could object generally to such use of union funds and
could obtain either a proportionate refund or reduction of future
exactions.\245\ Later, the Court further tightened the requirements. A
proportionate refund is inadequate because ``even then the union obtains
an involuntary loan for purposes to which the employee objects;'\246\
an advance reduction of dues corrects the problem only if accompanied by
sufficient information by which employees may gauge the propriety of the
union's fee.\247\ Therefore, the union procedure must also ``provide for
a reasonably prompt decision by an impartial decisionmaker.'\248
\242\431 U.S. 209 (1977). That a public entity was the employer
and the employees consequently were public employees was deemed
constitutionally immaterial for the application of the principles of
Hanson and Street, id. at 226-32, but Justice Powell found the
distinction between public and private employment crucial. Id. at 244.
\243\Id. at 217-23. The compelled support was through the agency
shop device. Id. at 211, 217 n. 10. Justice Powell, joined by Chief
Justice Burger and Justice Blackmun, would have held that compelled
support by public employees of unions violated their First Amendment
rights. Id. at 244. For an argument over the issue of corporate
political contributions and shareholder rights, see First National Bank
v. Bellotti, 435 U.S. 765, 792-95 (1978), and id. at 802, 812-21
(Justice White dissenting).
\244\431 U.S. at 232-37.
\245\Id. at 237-42. On the other hand, nonmembers may be charged
for such general union expenses as contributions to state and national
affiliates, expenses of sending delegates to state and national union
conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty
Ass'n, 500 U.S. 507 (1991).
\246\Ellis v. Brotherhood of Railway, Airline & Steamship
Clerks, 466 U.S. 435 (1984).
\247\Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
\248\Id. at 309.
---------------------------------------------------------------------------
On a related matter, the Court held that a labor relations body
could not prevent a union member or employee represented exclusively by
a union from speaking out at a public meeting on an issue of public
concern, simply because the issue was a subject of collective bargaining
between the union and the employer.\249
\249\Madison School Dist. v. WERC, 429 U.S. 167 (1977).
---------------------------------------------------------------------------
Maintenance of National Security and the First Amendment
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
[[Page 1067]]
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 which 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 of ideas did not originate in
the United States in 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 1920's and early 1930's have been
alluded to earlier.\4\ But it was in the 1950's and the 1960's that the
Supreme Court confronted First Amendment concepts fully in determining
the degree to which government could proceed against persons and
organizations which it believed were plotting and conspiring both to
advocate the overthrow of government and to accomplish that goal.
\1\Supra, p.1022.
\2\Supra, pp.1022-24, 1036-38. The cases included Schenck v.
United States, 249 U.S. 47 (1919) (affirming conviction for attempting
to disrupt conscription by circulation of leaflets bitterly condemning
the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming
conviction for attempting to create insubordination in armed forces
based on one speech advocating socialism and opposition to war, and
praising resistance to the draft); Abrams v. United States, 250 U.S. 616
(1919) (affirming convictions based on two leaflets, one of which
attacked President Wilson as a coward and hypocrite for sending troops
into Russia and the other of which urged workers not to produce
materials to be used against their brothers).
\3\Supra, p.1039. The cases included Gitlow v. New York, 268
U.S. 652 (1925) (affirming conviction based on publication of
``manifesto' calling for the furthering of the ``class struggle'
through mass strikes and other mass action); Whitney v. California, 274
U.S. 357 (1927) (affirming conviction based upon adherence to party
which had platform rejecting parliamentary methods and urging a
``revolutionary class struggle,' the adoption of which defendant had
opposed).
\4\See also Taylor v. Mississippi, 319 U.S. 583 (1943), setting
aside convictions of three Jehovah's Witnesses under a statute which
prohibited teaching or advocacy intended to encourage violence,
sabotage, or disloyalty to the government after the defendants had said
that it was wrong for the President ``to send our boys across in uniform
to fight our enemies' and that boys were being killed ``for no purpose
at all.' The Court found no evil or sinister purpose, no advocacy of or
incitement to subversive action, and no threat of clear and present
danger to government.
---------------------------------------------------------------------------
The Smith Act of 1940\5\ made it a criminal offense for anyone
to knowingly or willfully 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 for anyone to
organize any association which teaches, advises, or encourages such an
overthrow, or for anyone to become a member of or to affiliate with any
such association. No case involving pros
[[Page 1068]]
ecution 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 for the Court 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
\5\Ch. 439, 54 Stat. 670, 18 U.S.C. Sec. 2385.
\6\341 U.S. 494 (1951).
\7\Id. at 510, quoted supra, p. 1023.
\8\Id. at 509.
\9\Id. at 510-11.
---------------------------------------------------------------------------
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
[[Page 1069]]
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
\10\Id. at 517, 542
\11\Id. at 561, 572, 575.
\12\Id. at 579 (Justice Black dissenting), 581, 589 (Justice
Douglas dissenting).
---------------------------------------------------------------------------
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
\13\354 U.S. 298 (1957).
\14\Id. at 314, 315-16, 320, 324-25.
\15\Id. at 330-31, 332. Justices Black and Douglas would have
held the Smith Act unconstitutional. Id. at 339. Justice Harlan's
formulation of the standard by which certain advocacy could be punished
was noticeably stiffened in Brandenburg v. Ohio, 395 U.S. 444 (1969).
---------------------------------------------------------------------------
Compelled Registration of Communist Party.--The Internal
Security Act of 1950 provided for a comprehensive regulatory scheme by
which ``Communist-action organizations' and ``Com
[[Page 1070]]
munist-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 the premise that the Communist Party
was an anti-democratic, secret organization, subservient to a foreign
power, utilizing speech-plus in attempting to achieve its ends and
therefore subject to extensive governmental regulation.\19
\16\Ch. 1024, 64 Stat. 987. Sections of the Act requiring
registration of Communist-action and Communist-front organizations and
their members were repealed in 1968. Pub. L. 90-237, Sec. 5, 81 Stat.
766.
\17\Communist Party v. SACB, 367 U.S. 1 (1961). The Court
reserved decision on the self-incrimination claims raised by the Party.
The registration provisions ultimately floundered on this claim.
Albertson v. SACB, 382 U.S. 70 (1965).
\18\Id. at 88-105. The quoted phrase is id. at 102.
\19\Id. at 170-175 (Justice Douglas dissenting on other
grounds), 191 (Justice Brennan and Chief Justice Warren dissenting on
other grounds). Justice Black's dissent on First Amendment grounds
argued that ``Congress has [no] power to outlaw an association, group or
party either on the ground that it advocates a policy of violent
overthrow of the existing Government at some time in the distant future
or on the ground that it is ideologically subservient to some foreign
country.' Id. at 147.
---------------------------------------------------------------------------
Punishment for Membership in an Organization Which Engages in
Proscribed Advocacy.--It was noted above that the Smith Act also
contained a provision making it a crime to organize or become a member
of an organization which teaches, advocates, or encourages the overthrow
of government by force or violence.\20\ The Government used this
authority to proceed against Communist Party members. In Scales v.
United States,\21\ the Court affirmed a conviction under this section
and held it constitutional against First Amendment attack. Advocacy such
as the Communist Party
\20\Supra, p.1067.
\21\367 U.S. 203 (1961). Justices Black and Douglas dissented on
First Amendment grounds, id. at 259, 262, while Justice Brennan and
Chief Justice Warren dissented on statutory grounds. Id. at 278
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[[Page 1071]]
engaged in, Justice Harlan wrote for the Court, was unprotected
under Dennis, and he could see no reason why membership which
constituted a purposeful form of complicity in a group engaging in
such advocacy should be a protected form of association. Of course,
``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 . . . [t]he clause does not make criminal all
association with an organization which has been shown to engage in
illegal advocacy.' 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
\22\Id. 228-30. In Noto v. United States, 367 U.S. 290 (1961),
the Court reversed a conviction under the membership clause because the
evidence was insufficient to prove that the Party had engaged in
unlawful advocacy. ``[T]he 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 which is both sufficiently strong and sufficiently
pervasive to lend color to the otherwise ambiguous theoretical material
regarding Communist Party teaching, and to justify the inference that
such a call to violence may fairly be imputed to the Party as a whole,
and not merely to some narrow segment of it.' Id. at 297-98.
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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
[[Page 1072]]
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 which made it unlawful for any member of an organization
compelled to register as a ``Communist-action' or ``Communist-front'
organization to work thereafter in any defense facility. For the Court,
Chief Justice Warren wrote that a statute which 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 which 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
\23\Supra, pp.280-81. See 66 Stat. 205 (1952), 8 U.S.C.
Sec. 1251(a)(6). ``Innocent' membership in an organization which
advocates violent overthrow of the government is apparently insufficient
to save an alien from deportation. Galvan v. Press, 347 U.S. 522 (1954).
More recent cases, however, seem to impose a high standard of proof on
the Government to show a ``meaningful association,' as a matter of
statutory interpretation. Rowoldt v. Perfetto, 355 U.S. 115 (1957);
Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963).
\24\Subversive Activities Control Act of 1950, Sec. 6, ch. 1024,
64 Stat. 993, 50 U.S.C. Sec. 785. The section was declared
unconstitutional in Aptheker v. Secretary of State, 378 U.S. 500 (1964),
as an infringement of the right to travel, a liberty protected by the
due process clause of the Fifth Amendment. But the Court considered the
case as well in terms of its restrictions on ``freedom of association,'
emphasizing that the statute reached membership whether it was with
knowledge of the organization's illegal aims or not, whether it was
active or not, and whether the member intended to further the
organization's illegal aims. Id. at 507-14. But see Zemel v. Rusk, 381
U.S. 1, 16-17 (1965), in which the Court denied that State Department
area restrictions in its passport policies violated the First Amendment,
because the policy inhibited action rather than expression, a
distinction the Court continued in Haig v. Agee, 453 U.S. 280, 304-10
(1981).
\25\This part of the oath was sustained in American
Communications Ass'n v. Douds, 339 U.S. 382 (1950), and Osman v. Douds,
339 U.S. 846 (1950). With regard to another part of the required oath,
see supra, p.1055.
\26\Konigsberg v. State Bar of California, 366 U.S. 36 (1961);
In re Anastaplo, 366 U.S. 82 (1961); Law Students Civil Rights Research
Council v. Wadmond, 401 U.S. 154 (1971). Membership alone, however,
appears to be an inadequate basis on which to deny admission. Id. at
165-66; Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Schware v.
Board of Bar Examiners, 353 U.S. 232 (1957).
\27\Ch. 886, Sec. 3, 68 Stat. 775, 50 U.S.C. Sec. 842. The
section was at issue without a ruling on the merits in Mitchell v.
Donovan, 290 F. Supp. 642 (D. Minn. 1968) (ordering names of Communist
Party candidates put on ballot); 300 F. Supp. 1145 (D. Minn. 1969)
(dismissing action as moot); 398 U.S. 427 (1970) (dismissing appeal for
lack of jurisdiction).
\28\389 U.S. 258 (1967).
\29\Id. at 265-66. See also Schneider v. Smith, 390 U.S. 17
(1968).
---------------------------------------------------------------------------
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 which required the termination
of Social Security old age benefits to an
[[Page 1073]]
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 which could be criminally punished consistent 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, thus placing on the claimant the burden of proof of
showing 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
\30\363 U.S. 603 (1960). Justice Black argued the applicability
of the First Amendment. Id. at 628 (dissenting). Chief Justice Warren
and Justices Douglas and Brennan also dissented. Id. at 628, 634.
\31\Id. at 612. The suggestive passage reads: ``Nor . . . can it
be deemed irrational for Congress to have concluded that the public
purse should not be utilized to contribute to the support of those
deported on the grounds specified in the statute.' Ibid. But see
Sherbert v. Verner, 374 U.S. 398, 404-05, 409 n.9 (1963). While the
right-privilege distinction is all but moribund, Flemming has been
strongly reaffirmed in recent cases by emphasis on the noncontractual
nature of such benefits. Richardson v. Belcher, 404 U.S. 78, 80-81
(1971); United States Railroad Retirement Board v. Fritz, 449 U.S. 166,
174 (1980).
\32\357 U.S. 513 (1958).
\33\Id. at 526. For a possible limiting application of the
principle, see Law Students Civil Rights Research Council v. Wadmond,
401 U.S. 154, 162-64 (1971), and id. at 176-78 (Justices Black and
Douglas dissenting), id. at 189 n.5 (Justices Marshall and Brennan
dissenting).
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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 com
[[Page 1074]]
bine 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 which 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
\34\The federal program is primarily grounded in two Executive
Orders by President Truman and President Eisenhower, E.O. 9835, 12 Fed.
Reg. 1935 (1947), and E.O. 10450, 18 Fed. Reg. 2489 (1953), and a
significant amendatory Order issued by President Nixon, E.O. 11605, 36
Fed. Reg. 12831 (1971). Statutory bases include 5 U.S.C. Sec. Sec. 7311,
7531-32. Cases involving the program were decided either on lack of
authority for the action being reviewed, e.g., Cole v. Young, 351 U.S.
536 (1956); and Peters v. Hobby, 349 U.S. 331 (1955), or on procedural
due process grounds, Greene v. McElroy, 360 U.S. 474 (1959); Cafeteria &
Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). But cf. United
States v. Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17
(1968). A series of three-judge district court decisions, however,
invalidated federal loyalty oaths and inquiries. Soltar v. Postmaster
General, 277 F. Supp. 579 (N.D. Calif. 1967); Haskett v. Washington, 294
F. Supp. 912 (D.D.C. 1968); Stewart v. Washington, 301 F. Supp. 610
(D.D.C. 1969); National Ass'n of Letter Carriers v. Blount, 305 F. Supp.
546 (D.D.C. 1969) (no-strike oath).
\35\So-called negative oaths or test oaths are dealt with in
this section; for the positive oaths, see supra, pp.1055-56.
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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
did uphold 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
[[Page 1075]]
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
\36\Test oaths had first reached the Court in the period
following the Civil War, at which time they were voided as ex post facto
laws and bills of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277
(1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867)
\37\Gerende v. Board of Supervisors of Elections, 341 U.S. 56
(1951) (emphasis original). In Indiana Communist Party v. Whitcomb, 414
U.S. 411 (1974), a requirement that parties and candidates seeking
ballot space subscribe to a similar oath was voided because the oath's
language did not comport with the advocacy standards of Brandenburg v.
Ohio, 395 U.S. 444 (1969). Four Justices concurred more narrowly. 414
U.S. at 452 n.3. See also Whitcomb v. Communist Party of Indiana, 410
U.S. 976 (1973).
\38\Garner v. Board of Public Works, 341 U.S. 716 (1951).
Justice Frankfurter dissented in part on First Amendment grounds, id. at
724, Justice Burton dissented in part, id. at 729, and Justices Black
and Douglas dissented completely, on bill of attainder grounds, id. at
731.
\39\Id. at 720. Justices Frankfurter and Burton agreed with this
ruling. Id. at 725-26, 729-30.
\40\Id. at 723-24.
\41\Id. at 720-21. Justice Frankfurter objected that the oath
placed upon the takers the burden of assuring themselves that every
organization to which they belonged or had been affiliated with for a
substantial period of time had not engaged in forbidden advocacy.
---------------------------------------------------------------------------
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 which so advocated; the statute had been supplemented
by a provision applicable to teachers calling for the drawing up of a
list of organizations which 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?
[[Page 1076]]
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
\42\Adler v. Board of Education, 342 U.S. 485 (1952). Justice
Frankfurter dissented because he thought no party had standing. Id. at
497. Justices Black and Douglas dissented on First Amendment grounds.
Id. at 508.
\43\Id. at 492.
\44\Ibid.
\45\Id. at 494-96.
---------------------------------------------------------------------------
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, while 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.
\46\Wieman v. Updegraff, 344 U.S. 183 (1952).
\47\Beilan v. Board of Education, 357 U.S. 399 (1958); Lerner v.
Casey, 357 U.S. 458 (1958); Nelson v. County of Los Angeles, 362 U.S. 1
(1960). Compare Slochower v. Board of Higher Education, 350 U.S. 551
(1956). The self-incrimination aspects of these cases are considered
infra, under analysis of the Fifth Amendment.
\48\364 U.S. 479 (1960). ``It is not disputed that to compel a
teacher to disclose his every associational tie is to impair that
teacher's right of free association, a right closely allied to freedom
of speech and a right which, like free speech, lies at the foundation of
a free society.' Id. at 485-86. Justices Frankfurter, Clark, Harlan,
and Whittaker dissented. Id. at 490, 496.
---------------------------------------------------------------------------
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