|Communist Party of the United States v. Subversive Activities Control Board No 12
100 U.S. 1
107 U.S. App.D.C. 279, 277 F.2d 78, affirmed.
[ Frankfurter ]
[ Warren ]
[ Black ]
[ Douglas ]
[ Brennan ]
Communist Party of the United States v. Subversive Activities Control Board No 12
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. JUSTICE BLACK, dissenting.
I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish. The first banning of an association because it advocates hated ideas -- whether that association be called a political party or not -- marks a fateful moment in the history of a free country. That moment seems to have arrived for this country.
The Subversive Activities Control Act of 1950 [n1] here involved defines "Communist action" organizations and requires them to register with the Attorney General giving much information of every kind with regard to their property, income, activities and members. The Communist Party has been ordered to register under that Act by the Subversive Activities Control Board, and has challenged the validity of that order on the ground, among others, that the Act is unconstitutional in that it amounts to a complete outlawry of the Communist Party. The contention is that this Act, considered as a whole and in its relation to existing laws which affect members of the Party, imposes such overhanging threats of disgrace, [p138] humiliation, fines, forfeitures and lengthy imprisonments upon registered organizations and their members, most of which burdens become effective automatically upon registration, that it will be impossible for the Party to continue to function if the registration order is upheld.
The Court's opinion is devoted chiefly to the task of explaining why it will not decide any of the substantial issues raised by this attack upon the constitutionality of the Act as it is actually written and will actually operate, and why it must decide the case just as though none of these other burdens existed and we were dealing with an Act that required nothing more than the registration of an organization. I cannot agree to decide the case on any such hypothetical basis. If registration were the only issue in the case, I would agree at once that Congress has power to require every "person" acting as an agent of a foreign principal to file registration statements comprehensively showing his agency activities as is required, for example, by the Foreign Agents Registration Act. [n2] That Act requires the registration of any "person" -- including an individual, partnership, association, corporation, organization, or other combination of individuals --
who acts or agrees to act, within the United States, as . . . a public relations counsel, publicity agent, information service employee, servant, agent, representative, or attorney for a foreign principal. . . . [n3]
Referring to that Act, I said in Viereck v. United States:
Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes [p139] from a disinterested source. Such legislation implements, rather than detracts from the prized freedoms guaranteed by the First Amendment. [n4]
The Act before us now, however, unlike the Foreign Agents Registration Act involved in the Viereck case, is not based on the principle that "our people, adequately informed, may be trusted to distinguish between the true and the false." Instead, the present Act, like many other pieces of current legislation, is based on the precisely contrary principle that "our people [even when] adequately informed may [not] be trusted to distinguish between the true and the false." In this regard, the principle upon which Congress acted in passing the Subversive Activities Control Act is identical to that upon which it acted in making membership in the Communist Party a crime in the Smith Act, [n5] a provision under which the Court has today sustained the conviction and imprisonment for six years of a person for being a mere member of the Communist Party with knowledge of its purposes. [n6] Statutes based upon such a principle, which really amounts to nothing more than the idea that the Government must act as a paternal guardian to protect American voters from hearing public policies discussed, do not implement "the prized freedoms guaranteed by the First Amendment" -- they are designed to and do directly detract from those freedoms.
The difference between the Subversive Activities Control Act and the Foreign Agents Registration Act is strikingly illustrated by the reasons Congress has itself given for the enactment of the statute now before us. When Viereck registered under the earlier and genuine registration statute, he was not thereby branded as being engaged [p140] in an evil, despicable undertaking bent on destroying this Nation. But that is precisely the effect of the present Act. Registration as a "Communist action organization" under the Subversive Activities Control Act means, according to the express provisions of the Act, that the Party and its members who register are under the control of a foreign dictatorship, [n7] that they have devised "clever and ruthless espionage and sabotage tactics," [n8] and that they are a part of a
worldwide revolutionary movement whose purpose it is, by treachery, deceit, infiltration . . . terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world. [n9]
A registrant organization is declared, by a finding of Congress, to be "an organization numbering thousands of adherents, rigidly and ruthlessly disciplined," merely awaiting a chance to overthrow this Government by force. [n10] And the members of such an [p141] organization are declared by the Act to have
repudiate[d] their allegiance to the United States, and in effect transfer[red] their allegiance to the foreign country in which is vested the direction and control of the world Communist movement. [n11]
This difference, standing alone, would be sufficient to establish the essential dissimilarity of the Subversive Activities Control Act from genuine registration statutes such as the Foreign Agents Registration Act. For the need of Government to provide means by which the people can obtain useful information -- the basis of every genuine registration statute -- can certainly be accomplished without resort to official legislative pronouncements as to the treasonable nature of those compelled to register. But this difference does not stand alone in the case of the Subversive Activities Control Act -- indeed, there are so many other differences of so much greater magnitude that the recitals of the Act branding those who register under it pale almost into insignificance.
The plan of the Act is to make it impossible for an organization to continue to function once a registration order is issued against it. To this end, the Act first provides crushing penalties to insure complete compliance with the disclosure requirements of registration. Thus, if the Party or its members fail to register within the time required by the Act, or if they fail to make annual reports as required, or to keep records as required, each individual guilty of such failure can be punished [p142] by a fine of $10,000, by imprisonment for five years, or both, for each offense [n12] -- and each offense means "each day of failure to register" [n13] or "each listing of the name or address of any one individual" [n14] either by the organization or by an individual. Thus, for a delay of thirty days in filing required reports, a fine of $300,000 and imprisonment for 150 years could be imposed by a trial judge.
Having thus made it mandatory that Communist organizations and individual Communists make a full disclosure of their identities and activities, the Act then proceeds to heap burden after burden upon those so exposed. Certain tax deductions allowed to others are denied to a registered organization. [n15] Mail matter must be stamped before the organization sends it out to show that it was disseminated by a "Communist action" organization, [n16] with all the treasonable connotations given that term by the recitals of "fact" in the Act. Members of a registered organization cannot hold certain jobs with the Government, or any jobs with private businesses engaged in doing certain work for the Government. [n17] Members cannot use or attempt to use a passport, and cannot even make application for a passport without being subject to a penalty of five years in the penitentiary. [n18] The Act thus makes it extremely difficult for a member of the Communist Party to live in this country and, at the same time, makes it a crime for him to try to get a passport to get out.
In addition to these burdens imposed directly by the Act itself, the registration requirement must also be considered in the context of the other laws now existing [p143] which affect the Communist Party. The Act requires that the information obtained upon registration be given wide publicity, [n19] thus insuring that those identified as members of the Party will be subjected to all the civil disabilities, [n20] criminal prosecutions, [n21] and public harassments [n22] that have become common in recent years. I agree with MR. JUSTICE DOUGLAS that this aspect of the Act is alone sufficient to establish its invalidity under the self-incrimination provision of the Fifth Amendment. But I think the interrelationship between the present Act and these other laws goes deeper than that, for I think that interrelationship establishes all but conclusively that the present Act cannot be upheld as a mere registration statute. The information elicited by the Act must be considered not, as in the Viereck case, an aid to the exercise of individual judgment by the people, but rather a part of a pattern of suppression by the Government, for that is certainly the inevitable effect of any system that requires registration, on the one hand, and imposes pains and penalties upon those registering, on the other. [p144]
All of these enormous burdens, which are necessarily imposed upon the Party and its members by the act of registration, are dismissed by the Court on the basis of an alleged conflict with the Court-created rule that constitutional questions should be avoided whenever possible. Thus, the Court engages in extended discussions as to whether the people involved will ever want to do the things the Act says they cannot do and whether they will ever object to doing the things the Act says they must do, suggesting, among other things, that the members of the Communist Party may never object to providing the evidence needed to send them to prison for violating the Smith Act; that they may never protest because they are forced to give up the tax deductions that other people receive; that they may be willing to stamp all the Party's mail as coming from an evil organization; that they may never want to hold the jobs from which the Act disqualifies them, and that they may never want to get a passport to get out of the country. On the basis of all these "uncertainties," the Court seems to consider its hands tied because, it says, these are as yet only potential impairments of constitutional rights. In its view, there is no "justiciable" issue at all between the United States and the Communist Party except the bare requirement of registration.
In the context of this case, I can find no justification for the Court's refusal to pass upon the serious constitutional questions raised. The Court of Appeals met its responsibility by deciding the questions. The Government has not asked that the Court refrain from giving a full decision on these important matters. Assuming that the Act is wholly valid aside from registration, and that Congress does have power to outlaw groups advocating dangerous ideas, it seems to me unfair to Congress for this Court to refuse to decide whether its Act can be fully enforced. And assuming that the Act is not wholly valid [p145] because of some limitation upon that power, it seems to me that we should say so now. By refusing to do so, the Court in effect allows this serious question to be decided by default. For the Party can no more continue to function with all of these tremendous burdens of undetermined constitutional validity overhanging it and its members than it could if the burdens were considered and upheld. The only sense in which the Court has avoided a constitutional issue is by permitting the destruction of a group seeking to raise the issue of the constitutionality of its destruction. [n23]
This whole Act, with its pains and penalties, embarks this country, for the first time, on the dangerous adventure of outlawing groups that preach doctrines nearly all Americans detest. When the practice of outlawing parties and various public groups begins, no one can say where it will end. In most countries, such a practice, once begun, ends with a one-party government. There is something of tragic irony in the fact that this Act, expressly designed to protect this Nation from becoming a "totalitarian dictatorship" with "a single political party," has adopted to achieve its laudable purpose the policy of outlawing a party -- a policy indispensable to totalitarian dictatorships. I think we should meet and decide this whole question now in the administration of a sound judicial policy that carries out our responsibilities both to Congress and to the American people. [p146]
In my judgment, the Act here under consideration is unconstitutional on at least three grounds in addition to its direct conflict with the self-incrimination provisions of the Fifth Amendment. It is, in the first instance, a classical bill of attainder, which our Constitution in two places prohibits, for it is a legislative Act that inflicts pains, penalties and punishments in a number of ways without a judicial trial. [n24] The legislative factfindings as to Communist activities, which the Court -- despite the constitutional command for trial of such facts by a court and jury -- accepts as facts, supply practically all of the proof needed to bring the Communist Party within the proscriptions of the Act. The Act points unerringly to the members of that Party as guilty people who must be penalized as the Act provides. At the same time, these legislative factfindings fall little short of being adequate in themselves to justify a finding of guilt against any person who can be identified, however faintly, by any informer, as ever having been a member of the Communist Party. Most of whatever is lacking in the legislative factfindings is later supplied by administrative factfindings of an agency which is not a court, which is not manned by independent judges, and which does not have to observe the constitutional right to trial by jury and other trial safeguards unequivocally commanded by the Bill of Rights. Yet, after this agency has made its finding and its conclusions, neither its findings of fact nor the findings of fact of the legislative body can subsequently be challenged in court by any individual who may later be brought up on a charge that he failed to register as required by the Act and the Board. The Act thus not only is a legislative bill of attainder, but also violates due process by shortcutting practically all of the Bill of Rights, leaving no [p147] hope for anyone entangled in this legislative-administrative web except what has proved in this case to be one of the most truncated judicial reviews that the history of this Court can afford. [n25]
I think also that this outlawry of the Communist Party and imprisonment of its members violate the First Amendment. The question under that Amendment is whether Congress has 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. In my judgment, neither of these factors justifies an invasion of rights protected by the First Amendment. Talk about the desirability of revolution has a long and honorable history, not only in other parts of the world, but also in our own country. This kind of talk, like any other, can be used at the wrong time and for the wrong purpose. But, under our system of Government, the remedy for this danger must be the same remedy that is applied to the danger that comes from any other erroneous talk -- education and contrary argument. [n26] If that remedy is not sufficient, the only meaning of free speech [p148] must be that the revolutionary ideas will be allowed to prevail. [n27]
This conclusion is not affected by the fact that those advocating a policy of revolution are in sympathy with a foreign government. If there is one thing certain about the First Amendment, it is that this Amendment was designed to guarantee the freest interchange of ideas about all public matters, and that, of course, means the interchange of all ideas, however such ideas may be viewed in other countries and whatever change in the existing structure of government it may be hoped that these ideas will bring about. Now, when this country is trying to spread the high ideals of democracy all over the world -- ideals that are revolutionary in many countries -- seems to be a particularly inappropriate time to stifle First Amendment freedoms in this country. The same arguments that are used to justify the outlawry of Communist ideas here could be used to justify an outlawry of the ideas of democracy in other countries.
The freedom to advocate ideas about public matters through associations of the nature of political parties and societies was contemplated and protected by the First Amendment. The existence of such groups is now, and for centuries has been, a necessary part of any effective promulgation of beliefs about governmental policies. And the destruction of such groups is now and always has been one of the first steps totalitarian governments take. Within recent months, we have learned of such practices in other countries. Only a few weeks ago, an executive edict outlawing all parties, groups and associations all the way down through Rotary Clubs was issued in a country where [p149] the government is largely in the hands of a single man. Indeed, our own ancestors were not unfamiliar with this practice. Men and women belonging to dissenting religious, political or social groups in England before the colonization of this country were sometimes imprisoned, mutilated, degraded by humiliating pillories, exiled and even killed for their views.
A typical example of the type of legislation under which this sort of persecution was carried on is provided by a statute enacted in 1593 to destroy dissenting religious sects and force all the people of England to become regular attendants at the established church. [n28] The basic premise upon which its commands rested was not at all unlike that upon which the Act here proceeds:
For the better discovering and avoiding of such traiterous and most dangerous Conspiracies and Attempts as are daily devised and practised against our most gracious Sovereign Lady the Queen's Majesty and the happy Estate of this common Weal, by sundry wicked and seditious Persons, who terming themselves Catholicks, and being indeed Spies and Intelligencers not only for her Majesty's foreign Enemies, but also for rebellious and traiterous Subjects born within her Highness Realms and Dominions, and hiding their most detestable and devilish Purposes under a false Pretext of Religion and Conscience, do secretly wander and shift from Place to Place within this Realm, to corrupt and seduce her Majesty's Subjects and to stir them to Sedition and Rebellion. . . .
These attainted Catholics were not permitted to go "above five Miles" from their homes. For violation of this command, they could be sentenced to prison and have [p150] all their goods, lands and other possessions forfeited "to the Queen's Majesty." One has only to read this statute to see how thoroughgoing government can be in making life miserable for groups whose beliefs have fallen into disfavor.
That statute also has peculiar relevance to the consideration of the Subversive Activities Control Act, because it too used disclosure as a lever to secure effective enforcement of its provisions. Thus, one section of the statute provided:
And be it further enacted and ordained by the Authority aforesaid, That if any Person which shall be suspected to be a Jesuit, Seminary or Massing Priest, being examined by any Person having lawful Authority in that Behalf to examine such Person which shall be so suspected, shall refuse to answer directly and truly whether he be a Jesuit, or a Seminary or Massing Priest, as is aforesaid, every such Person so refusing to answer shall, for his Disobedience and Contempt in that Behalf, be committed to Prison by such as shall examine him as is aforesaid, and thereupon shall remain and continue in Prison without Bail or Mainprise until he shall make direct and true Answer to the said Questions whereupon he shall be so examined.
(Emphasis supplied.) One cannot help but wonder whether this Court, were it called upon to consider the constitutionality of a provision of that kind in this country, would pass it off as involving nothing more than potential impairments of religious freedoms and a right to travel which the attainted persons might never want to exercise.
There were many other statutes of this kind passed in England before our Revolutionary War. [n29] By no means [p151] all of them were aimed at the Catholics. Indeed, during the times when the Catholics were themselves in power, almost identical repressive measures were adopted in an attempt to curb the rise of Protestantism. [n30] And the persecution of Puritans in England, dramatized by some of the most famous writers of the time, is a story that is, I hope, familiar to most Americans. [n31] It is a matter of history that not one of these laws achieved its purpose. Many men died, suffered and were driven from their country. And, in a sense, it might be said that our own country profited from these laws because it was largely founded by refugees from English oppression. But England itself gained little if any profit from its policies of repression. The outlawed groups were not destroyed. Many people have thought that these repressive measures were more effective to bring about revolutions than to stop them. Be that as it may, it cannot be denied that the most tranquil period of English history, from an internal standpoint, has been the period since England abandoned these practices of trying to inculcate belief by oaths and force.
Even after the American Revolution, England continued to pass statutes outlawing groups and punishing their members. One that is of particular interest here because of the many similarities between it and the Act involved in this case was passed in 1799 under the title
An Act for the more effectual Suppression of Societies established for Seditious and Treasonable Purposes, and for better preventing Treasonable and Seditious Practices. [n32]
The premise upon which this Act was passed [p152] was also similar to that used here --
a traitorous Conspiracy has long been carried on, in conjunction with the Persons from Time to Time exercising the Powers of Government in France, to overturn the Laws, Constitution, and Government, and every existing Establishment, Civil and Ecclesiastical, both in Great Britain and Ireland. . . .
The Act broadly provided for the suppression and prohibition "as unlawful Combinations and Confederacies" of all such societies, "particularly . . . Societies of United Englishmen, United Scotsmen, United Britons, United Irishmen, and The London Corresponding Society. . . ." This 1799 English Act, like the Subversive Activities Control Act here, comprehensively provided for fines, forfeitures, penalties and imprisonments. It went on to outlaw places where debates could take place or lectures be given or books be gathered and read unless, under very restrictive standards, licenses had been granted by Justices of the Peace. Great emphasis was laid upon the fact that unlicensed gatherings should be treated as nuisances and disorderly houses. Following the course that such repressive measures always must, and indeed precisely the course that is here being followed by our own Government with respect to the Communist Party, [n33] the English Act placed printing [p153] presses, type and everything else useful for publishing discussion of public matters under strict regulations.
The parliamentary debates underlying the enactment of this 1799 English statute indicate plainly the close parallel between it and the Act here under consideration. The chief fear of the English rulers that brought on the 1799 Act was that the people of England would be seduced away from their loyalty to their government if societies were left free to discuss public matters and if the common people were left free to read and hear arguments. William Pitt, the Younger, in offering the bill which provided the basis for the Act, expressed his fear that debating societies and other such manifestations of liberty of press and speech might call
the attention of the lower orders of the people to objects of discussion of the most mischievous tendency, objects which are not calculated for their understandings, and which are, of all others, the most liable to be attended with dreadful effects. [n34]
He thought these "dreadful effects" could be averted, in large part, by making individual authors sign everything they wrote. But he then went on to urge that,
in order to make the measure effectual, and prevent the press from becoming an engine of corruption and innovation in the hands of factions who are ready to circulate cheap publications, adapted to inflame and pervert the public mind, it will be necessary to keep a general register not only of the presses used by printers, but of those in the possession of private persons. [n35]
All of this, Mr. Pitt explained, was necessary in order to render "more effectual" an Act passed at the previous session of Parliament entitled "An Act to empower his majesty to secure and detain such persons as his majesty shall suspect are conspiring against his person and government." [n36] [p154]
The debates on the English statute also show the true nature of the "revolutionary" principles advocated by the various societies named which were being used to justify their outlawry. These principles were chiefly parliamentary reform providing for annual sessions of Parliament, universal suffrage and fair parliamentary representation, and repeal of the right of the King to veto measures passed by Parliament. [n37] It is, of course, true that Congress has no power to outlaw political parties advocating such measures in this country. But I wonder how this Court could ever reach the question in view of its holding today. And if the Court is, as it holds, truly bound by legislative findings as to the nature of political parties and their involvement with foreign powers, how could it strike down the very statute I have just described? For that statute purported to establish, as a matter of fact, that the named societies were a part of a "traitorous Conspiracy" acting "in conjunction with the Persons from Time to Time exercising the Powers of Government in France."
At the very time England was going through its era of terror about the "Jacobins," a heated political struggle involving many of the same issues was going on in this country between the two chief political parties. One of those parties, the Federalists, wanted to outlaw the party of Jefferson on the ground that they too were "Jacobins," and therefore a threat to our security. The Jeffersonians, quite naturally, opposed such outlawry, and, in fact, opposed any measure which would restrict the freedoms of speech, press, petition and assembly. The difference between the two parties was expressed by Jefferson in this way:
Both of our political parties, at least the honest part of them, agree conscientiously in the same object, the public good. . . . One fears most the [p155] ignorance of the people; the other, the selfishness of rulers independent of them. Which is right, time and experience will prove. [n38]
This conflict of ideals and policies was temporarily resolved in favor of the Federalists, and the result was the infamous era of the Alien and Sedition Acts. [n39] These laws, passed over vigorous Jeffersonian opposition, declared that it was necessary in order to protect the security of the Nation to give the President the broadest of powers over aliens and to make substantial inroads upon the freedoms of speech, press and assembly.
The enforcement of these statutes, particularly the Sedition Act, constitutes one of the greatest blots on our country's record of freedom. [n40] Publishers were sent to jail for writing their own views and for publishing the views of others. The slightest criticism of Government or policies of government officials was enough to cause biased federal prosecutors to put the machinery of Government to work to crush and imprison the critic. Rumors which filled the air pointed the finger of suspicion at good men and bad men alike, sometimes causing the social ostracism of people who loved their free country with a deathless devotion. [n41] Members of the [p156] Jeffersonian Party were picked out as special targets so that they could be illustrious examples of what could happen to people who failed to sing paeans of praise for current federal officials and their policies. Matthew Lyon, a Congressman of the Jeffersonian Party, was prosecuted, convicted and forced to serve a prison sentence in a disreputable jailhouse because of criticisms he made of governmental officials and their activities. This was a particularly egregious example of the repressive nature of the Sedition Act, for Lyon's conviction could not possibly have been upheld under even the most niggardly interpretation of the First Amendment. [n42] [p157] Lyon was but one of many who had to go to jail, be fined, or otherwise be made to suffer for the expression of his public views. Carpenters, preachers, lawyers, and many others furnished grist for the prosecutor's biased political activities in the "administration of justice." Unfortunately, our federal courts did not emerge from this fever of hysteria with the kind of reputations that shed lustre on the business of judging. Although the Founders had provided for federal judges to be appointed for life, thus intending to give them the independence necessary for the higher responsibility they had, some federal judges, even including members of the highest courts, presided [p158] over grand juries and trials in a way that is sad to be recalled even at this late date. [n43]
All the governmental activities set out above designed to suppress the freedom of American citizens to think their own views and speak their own thoughts and read their own selections, and even more, occurred under the 1798 Sedition Act. And all these things happened despite the fact that the promoters of that legislation were unable to make it as strong as their philosophical and political brethren in England had made their Act for the complete suppression of all kinds of societies. But even this comparatively less repressive law and its enforcement were too much of an infringement upon personal liberty to stand the test of public opinion among the plain, sturdy pioneers of America. In the very next election following its enactment, Jefferson was elected President on a platform which contained, as its principal plank, a promise to abandon the Sedition Act and the policy of repression behind it. [n44] Members of Congress and the Senate were elected to help him carry out his pledge. The pledge was carried out, and, in order to try to make amends to those who had suffered under this obnoxious [p159] law, Congress was busy for many years indemnifying those who had been prosecuted under its provisions, and even their descendants. [n45] The superior judgment of the people over that of their legislators who passed the Act in the first place was graphically illustrated when Matthew Lyon, who had been sent to jail for refusing to refrain from criticizing Federalist officeholders, was triumphantly reelected by the people of Vermont while still in jail.
I regret, exceedingly regret, that I feel impelled to recount this history of the Federalist Sedition Act because, in all truth, it must be pointed out that this law -- which has since been almost universally condemned as unconstitutional [n46] -- did not go as far in suppressing [p160] the First Amendment freedoms of Americans as do the Smith Act and the Subversive Activities Control Act. All the fervor and all the eloquence and all the emotionalism and all the prejudice and all the parades of horrors about letting the people hear arguments for themselves were not sufficient in 1798 to persuade the members of Congress to pass a law which would directly and unequivocally outlaw the party of Jefferson, at which the law was undoubtedly aimed. [n47] The same arguments were made then about the "Jacobins," meaning the Jeffersonians, with regard to their alleged subservience to France, that are made today about the Communists with regard to their subservience to Russia. Even the language of the charges that were hurled was substantially the same as that used in the charges made today. The Jacobins were "trained, officered, regimented, and formed to subordination, in a manner that our militia have never yet equalled", and "it is as certain as any [p161] future event can be that they [the Jeffersonians] will take arms against the laws as soon as they dare. . . ." [n48]
These charges echoed fears that were expressed time and time again during the congressional debate on the Alien and Sedition Acts. The very same fears are again being voiced today as a justification for curtailing the liberties of the people of America. Thus, § 2(15) of the Subversive Activities Control Act under consideration says that
[t]he Communist movement in the United States is an organization numbering thousands of adherents, [p162] rigidly and ruthlessly disciplined
only awaiting "a moment when . . . overthrow of the Government of the United States by force and violence may seem possible of achievement. . . ."
This excuse for repression is, of course, not a distinctively American creation. It is the same excuse that was used for the 1799 English Act described above. Thus, Charles Abbot, a member of Parliament, urged as one of the justifications for outlawing the societies named in that Act
The malignancy of their character is distinguishable by the restless spirit which it infuses into the lowest orders of the people, encouraging them to take up arms, and teaching them that they have great and powerful partisans and leaders who are secretly prepared to seize the favorable moment for showing themselves openly at their head, when they can hope to do so with impunity. [n49]
The truth is that this statutory outlawry of the Communist Party is not at all novel when considered in the perspective of history. Quite the contrary, it represents nothing more than the adoption by this country, in part at least, of one of the two conflicting views that have emerged from a longstanding and widespread dispute among political philosophers as to what kind of Government will best serve the welfare of the people. That view is that Governments should have almost unlimited powers. The other view is that governmental power should be very strictly limited. Both the Smith Act and the Subversive Activities Control Act are based upon the view that officials of the Government should have power to suppress and crush by force critics and criticisms [p163] of governmental officials and their policies. The contrary view, which Congress necessarily rejected in passing these laws, is that current public officials should never be granted power to use governmental force to keep people from hearing, speaking or publishing such criticisms of Government or from assembling together to petition their Government to make changes in governmental policies, however basic the majority may deem these policies to be.
It is my belief that our Constitution, with its Bill of Rights, was expressly intended to make our Government one of strictly limited powers. The Founders were intimately familiar with the restrictions upon liberty which inevitably flow from a Government of unlimited powers. By and large, they had found this experience a painful one. Many of them were descended from families that had left England and had come to this country in order to escape laws that could send them to jail or penalize them in various ways for criticizing laws and policies which they thought bore too heavily and unfairly upon them. Others had personally felt the brunt of such repressive measures. Only after they won the Revolutionary War did these people have an opportunity to set up a Government to their liking. To that end, they finally settled upon the Constitution, which very clearly adopted the policy of limiting the powers of the Federal Government. Even then, the people of this country were not completely satisfied. They demanded more precise and unequivocal limitations upon the powers of Government and obtained the Bill of Rights, the central provisions of which were the First Amendment guarantees of complete religious and political freedom. [n50] [p164]
In the very face of the provisions of the First Amendment, however, the Court today upholds laws which ignore the wisdom of the Founders' decision to set up a limited Government and adopt the policy of force to crush views about public matters entertained by a small minority in this country. This, to me, marks a major break in the wall designed by the First Amendment to keep this country free by leaving the people free to talk about any kind of change in basic governmental policies they desire to talk about. I see no possible way to escape the fateful consequences of a return to the era in which all governmental critics had to face the probability of being sent to jail except for this Court to abandon what I consider to be the dangerous constitutional doctrine of "balancing" to which the Court is at present adhering. That doctrine is not a new one. In fact, history shows that it has been the excuse for practically every repressive measure that Government has ever seen fit to adopt. Mr. Pitt proved, in 1799, that he was a master of the concept and language of "balancing" in his speech urging the passage of laws to muzzle the press of England in order to prevent the dissemination of the "revolutionary" ideas that England should have parliamentary reform:
We cannot too highly prize that sacred liberty [of the press] when we consider that it has been instrumental in bringing our constitution to that envied perfection which it possesses. Yet it must also be admitted that, when abused, the most fatal consequences have ever resulted from it. It has been the great principle of the constitution that the liberty of the press should flourish, but it is also clear from the nature of the principle itself, and for the security of the press, that the author or publisher of every work should be amenable to the laws of his country. [n51] [p165] And there certainly was no shortage of "balancers" in our own Congress when the Alien and Sedition Acts of 1798 were passed. [n52]
The "balancing test" of First Amendment freedoms is said to justify laws aimed at the advocacy of overthrow of the Government "as speedily as circumstances would permit." [n53] Thus, the "test" being used here is identical to the arguments used to justify the Alien and Sedition Acts of 1798 in this country and the 1799 Sedition Act in England. The unprecedented incorporation into our constitutional law of this time-worn justification for tyranny has been used to break down even the minimal protections [n54] of [p166] the First Amendment forged by Mr. Justice Holmes and Mr. Justice Brandeis which would bar prosecution for speech or writings in all cases except those in which the words used
so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. [n55]
I realize that these laws are aimed only at the Communist Party. No one need console himself, however, that the policy of using governmental force to crush dissident groups upon which they are based can or will be stopped at that point. The weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears. Only eleven years ago, this Court upheld a governmental penalty directed at Communists on the ground that "only a relative handful" would be affected by the penalty involved in that case. [n56] Today, it upholds statutes which I think totally outlaw that Party, claiming nonetheless that
[n]othing which we decide here remotely carries . . . [the] implication . . . [that] Congress may impose similar requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology.
I am very much afraid that we will see the day when the very implication which the Court now denies is found. [p167]
I am ready to admit that strong arguments can be made for saying that Governments in general should have power to suppress the freedoms of speech, press, petition and assembly. These arguments are particularly strong in countries where the existing Government does not represent the will of the people, because history shows that people have a way of not being willing to bear oppressive grievances without protest. Such protests, when bottomed upon facts, lead almost inevitably to an irresistible popular demand for either a redress of those grievances or a change in the Government. It is plain that there are Governments in the world today that desperately need to suppress such protests. for they probably could not survive a week or even a day if they were deprived of the power to use their informers to intimidate, their jails to imprison and their firing squads to shoot their critics. In countries of that kind, repressive measures like the Smith Act and the Subversive Activities Control Act are absolutely necessary to protect the ruling tyrants from the spread of information about their misdeeds. But in a democracy like ours, such laws are not only unnecessary, but also constitute a baseless insult to the patriotism of our people.
I believe with the Framers of the First Amendment that the internal security of a nation like ours does not and cannot be made to depend upon the use of force by Government to make all the beliefs and opinions of the people fit into a common mold on any single subject. Such enforced conformity of thought would tend only to deprive our people of the bold spirit of adventure and progress which has brought this Nation to its present greatness. The creation of public opinion by groups, organizations, societies, clubs, and parties has been and is a necessary part of our democratic society. Such groups, like the Sons of Liberty and the American Corresponding Societies, played a large part in creating sentiment in this country that led the people of the Colonies to want a nation of [p168] their own. The Father of the Constitution -- James Madison -- said, in speaking of the Sedition Act aimed at crushing the Jeffersonian Party, that had that law been in effect during the period before the Revolution, the United States might well have continued to be "miserable colonies, groaning under a foreign yoke." [n57]
In my judgment, this country's internal security can better be served by depending upon the affection of the people than by attempting to instill them with fear and dread of the power of Government. The Communist Party has never been more than a small group in this country. And its numbers had been dwindling even before the Government began its campaign to destroy the Party by force of law. This was because a vast majority of the American people were against the Party's policies and overwhelmingly reflected its candidates year after year. That is the true American way of securing this Nation against dangerous ideas. Of course, that is not the way to protect the Nation against actions of violence and treason. The Founders drew a distinction in our Constitution which we would be wise to follow. They gave the Government the fullest power to prosecute overt actions in violation of valid laws, but withheld any power to punish people for nothing more than advocacy of their views.
I am compelled to say in closing that I fear that all the arguments and urgings the Communists and their sympathizers can use in trying to convert Americans to an ideology wholly foreign to our habits and our instincts are far less dangerous to the security of this Nation than laws which embark us upon a policy of repression by the outlawry of minority parties because they advocate radical changes in the structure of Government. This widespread program for punishing ideas on the ground that [p169] they might impair the internal security of the Nation not only sadly fails to protect that security, but also diverts our energies and thoughts from the many far more important problems that face us as a Nation in this troubled world.
I would reverse this case and leave the Communists free to advocate their beliefs in proletarian dictatorship publicly and openly among the people of this country with full confidence that the people will remain loyal to any democratic Government truly dedicated to freedom and justice -- the kind of Government which some of us still think of as being "the last best hope of earth."
1. 64 Stat. 987, as amended, 50 U.S.C. §§ 781-798.
2. 52 Stat. 631, as amended, 22 U.S.C. §§ 611-621.
3. 22 U.S.C. § 611.
4. 318 U.S. 236, 251 (dissenting opinion).
5. 18 U.S.C. § 2385.
6. Scales v. United States, post, p. 203.
7. 50 U.S.C. § 781(4). "The direction and control of the world Communist movement is vested in and exercised by the Communist dictatorship of a foreign country."
8. 50 U.S.C. § 781(11).
The agents of communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances in form or manner successfully evasive of existing law.
9. 50 U.S.C. § 781(1).
There exists a world Communist movement which, in its origins, its development, and its present practice, is a worldwide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a worldwide Communist organization.
10. 50 U.S.C. § 781(15).
The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. . . .
11. 50 U.S.C. § 781(9).
In the United States, those individuals who knowingly and willfully participate in the world Communist movement, when they so participate, in effect repudiate their allegiance to the United States, and in effect transfer their allegiance to the foreign country in which is vested the direction and control of the world Communist movement.
12. 50 U.S.C. § 794(a)(2).
13. 50 U.S.C. § 794(a).
14. 50 U.S.C. § 794(b)(2).
15. 50 U.S.C. § 790.
16. 15 U.S.C. § 789(1).
17. 50 U.S.C. § 784.
18. 50 U.S.C. § 785
19. 50 U.S.C. § 788.
20. There seems to be little doubt that a registered member of the Communist Party would find it almost impossible to get or retain employment in this country. See, e.g., American Communications Assn. v. Douds, 339 U.S. 382; Barsky v. Board of Regents, 347 U.S. 442; Lerner v. Casey, 357 U.S. 468; Beilan v. Board of Education, 357 U.S. 399; Nelson v. County of Los Angeles, 362 U.S. 1; Konigsberg v. State Bar of California, 366 U.S. 36; In re Anastaplo, 366 U.S. 82. Cf. Shelton v. Tucker, 364 U.S. 479.
21. See, e.g., Dennis v. United States, 341 U.S. 494; Yates v. United States, 354 U.S. 298; Scales v. United States, post, p. 203; Noto v. United States, post, p. 290.
22. See, e.g., Watkins v. United States, 354 U.S. 178"]354 U.S. 178; Sweezy v. New Hampshire, 354 U.S. 234; 354 U.S. 178; Sweezy v. New Hampshire, 354 U.S. 234; Barenblatt v. United States, 360 U.S. 109; Uphaus v. Wyman, 360 U.S. 72; Uphaus v. Wyman, 364 U.S. 388; Wilkinson v. United States, 365 U.S. 399; Braden v. United States, 365 U.S. 431.
23. In this regard, I think the present case is identical to Ex parte Young, 209 U.S. 123. There, the Court reached and decided the constitutional question tendered, saying:
It may therefore be said that, when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights.
Id. at 147.
24. Cummings v. Missouri, 4 Wall. 277, 323. And see United States v. Lovett, 328 U.S. 303.
25. This provides yet another difference between the Act under consideration here and the Act under which the prosecution involved in the Viereck case was brought. Before Viereck could be convicted for having failed to register or report as a foreign agent, he was entitled to have all the facts upon which his guilt depended determined by a jury under an indictment returned by a grand jury and during the course of a judicial proceeding in which he was accorded the protection of all the forms and procedures designed through the years to protect defendants charged with the commission of a criminal offense.
26. Cf. Whitney v. California, 274 U.S. 357, 378:
Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.
(Brandeis, J., concurring.)
27. Cf. Gitlow v. New York, 268 U.S. 652, 673:
If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
(Holmes, J., dissenting.)
28. 35 Elizabeth, cc. I and II, entitled "An Act to retain the Queen's Majesty's Subjects in their due Obedience" and "An Act for Restraining Popish Recusants to some certain Places of Abode."
29. A brief history of some of these statutes is set out in my dissenting opinion in American Communications Assn. v. Douds, 339 U.S. 382, 447-448, notes 3 and 4.
30. Several examples of the persecution inflicted upon Protestants by Catholics were set out in the Appendix to my concurring opinion in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 146-149.
31. See, e.g., Bunyan, The Pilgrims Progress; Milton, Areopagitica.
32. 39 George III, c. 79.
33. Section 7(d)(6) of the Act, 50 U.S.C. § 786(d)(6), requires the
listing, in such form and detail as the Attorney General shall by regulation prescribe of all printing presses and machines including but not limited to rotary presses, flatbed cylinder presses, platen presses, lithographs, offsets, photo-offsets, mimeograph machines, multigraph machines, multilith machines, duplicating machines, ditto machines, linotype machines, intertype machines, monotype machines, and all other types of printing presses, typesetting machines or any mechanical devices used or intended to be used, or capable of being used to produce or publish printed matter or material, which are in the possession, custody, ownership, or control of the Communist action or Communist front organization or its officers, members, affiliates, associates, group, or groups in which the Communist action or Communist front organization, its officers or members have an interest.
34. Parliamentary Debates, Hansard, 1st Series, 34, at 987.
35. Id. at 988.
37. Id. at 984-998.
38. 4 Memoir of Jefferson 28.
39. The so-called Alien and Sedition Acts comprised three different statutes enacted in 1798: 1 Stat. 570; 1 Stat. 577, and 1 Stat. 596.
40. For a graphic discussion of the period of the Alien and Sedition Acts, see Bowers, Jefferson and Hamilton, 1925, c. XVI, "Hysterics," and c. XVII, "The Reign of Terror."
41. Much of this sort of misdirected persecution was doubtless due to the attitude and public statements of the influential Federalist Secretary of State, Timothy Pickering. See Miller, Crisis in Freedom, 89-90 (1951):
By Pickering and his followers, it was held that, since honest men who valued the national welfare would not cavil at the Sedition Act, it could be presumed that those who criticized it were no better than Jacobin fellow travelers. It was laid down as a sound principle that
when a man is heard to inveigh against this law, set him down as a man who would submit to no restraint which is calculated for the peace of society. He deserves to be suspected.
Thus, Jacobin sympathizers were to be known by their attitude toward the Sedition Act; a critical or skeptical frame of mind was prima facie evidence of guilt. The Secretary of State looked darkly upon such troublemakers: "Those who complain of legal provisions for punishing intentional defamation and lies, as bridling the liberty of speech and of the press," he said, "may, with equal propriety, complain against laws made for punishing assault and murder, as restraints upon the freedom of men's actions."
In such an atmosphere, it is small wonder, as Miller observes, that
it became impossible for the Federalists to distinguish between a genuine, freedom-loving American democrat and a French Jacobin bent upon overturning religion, morality and the State.
Id. at 90.
42. The indictment against Lyon alleged two counts of libel against President Adams. The first count alleged that Lyon had made and published the following statement:
As to the Executive, when I shall see the effects of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that Executive shall have my zealous and uniform support. But whenever I shall, on the part of our Executive, see every consideration of public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice -- when I shall behold men of real merit daily turned out [of] office for no other cause than independency of sentiment -- when I shall see men of firmness, merit, years, abilities, and experience discarded in their applications for office for fear they possess that independence, and men of meanness preferred for the ease with which they can take up and advocate opinions the consequence of which they know but little of -- when I shall see the sacred name of religion employed as a State engine to make mankind hate and persecute each other, I shall not be their humble advocate,
The second count of the indictment alleged that Lyon had caused the publication of the following letter from a person in France:
The misunderstanding between the two Governments has become extremely alarming; confidence is completely destroyed; mistrusts, jealousies, and a disposition to a wrong attribution of motives are so apparent as to require the utmost caution in every word and action that are to come from your Executive -- I mean if your object is to avoid hostilities. Had this truth been understood with you before the recall of Monroe -- before the coming and second coming of Pinckney; had it guided the pens that wrote the bullying speech of your President, and stupid answer of your Senate, at the opening of Congress in November last, I should probably have had no occasion to address you this letter. But when we found him borrowing the language of Edmund Burke, and telling the world that, although he should succeed in treating with the French, there was no dependence to be placed in any of their engagements, that their religion and morality were at an end, and they had turned pirates and plunderers, and that it would be necessary to be perpetually armed against them, though you are at peace; we wondered that the answer of both Houses had not been an order to send him to the mad-house. Instead of this, the Senate have echoed the speech with more servility than ever George the Third experienced from either House of Parliament.
Cong.Globe, 26th Cong., 1st Sess. 411 (1840).
43. The part played by federal judges in the creation of the atmosphere of hysteria which characterized the period is discussed in Bowers, Jefferson and Hamilton, 398-402. See also Miller, Crisis in Freedom, 135-142.
44. The significance of the issue of political freedom in the election of 1800 is shown by the fact that Jefferson devoted a large part of his inaugural address to that subject. It was at that time that he gave new emphasis to the creed of political freedom by which this country lived and prospered for so long:
If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
The part of Jefferson's First Inaugural Address dealing with political freedom is reprinted in Jones, Primer of Intellectual Freedom, 142 (Harvard University Press, 1949).
45. In 1840, for example, President Van Buren signed a bill that indemnified the descendants of Matthew Lyon for the persecution he had suffered under the Sedition Act. See Cong.Globe, 26th Cong., 1st Sess. 410-414, 478 (1840). Appropriately, this act of official denouncement of the Sedition Law was accomplished on July 4 of that year. 6 Stat. 802.
46. Perhaps the strongest denunciation of the Sedition Act as unconstitutional has come from Congress itself. The report of the Committee of the House of Representatives which presented the bill passed in 1840 to refund the fine imposed under that Act upon Matthew Lyon stated:
The committee do not deem it necessary to discuss at length the character of that law, or to assign all the reasons, however demonstrative, that have induced the conviction of its unconstitutionality. No question connected with the liberty of the press ever excited a more universal and intense interest -- ever received so acute, able, long-continued, and elaborate investigation -- was ever more generally understood, or so conclusively settled by the concurring opinions of all parties, after the heated political contests of the day had passed away. All that now remains to be done by the Representatives of the people who condemned this act of their agents as unauthorized, and transcending their grant of power, to place beyond question, doubt, or cavil, that mandate of the Constitution prohibiting Congress from abridging the liberty of the press, and to discharge an honest, just, moral, and honorable obligation, is to refund from the Treasury the fine thus illegally and wrongfully obtained from one of their citizens: for which purpose the committee herewith report a bill.
Cong.Globe, 26th Cong., 1st Sess. 411 (1840). Cf. Abrams v. United States, 250 U.S. 616, 630:
I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 by repaying fines that it imposed.
(Holmes, J., dissenting.)
47. The real aim of the Sedition Act emerges with indisputable clarity from the debates surrounding its enactment. Thus, John Allen, one of the supporters of the Act in the House of Representatives, urged the necessity of the Act in the following terms:
I hope this bill will not be rejected. If ever there was a nation which required a law of this kind, it is this. Let gentlemen look at certain papers printed in this city and elsewhere, and ask themselves whether an unwarrantable and dangerous combination does not exist to overturn and ruin the Government by publishing the most shameless falsehoods against the Representatives of the people of all denominations, that they are hostile to free Governments and genuine liberty, and, of course, to the welfare of this country; that they ought, therefore, to be displaced, and that the people ought to raise an insurrection against the Government. . . . I say, sir, this paper [the Aurora, a paper which supported the Jeffersonian party] must necessarily, in the nature of things, be supported by a powerful party; I do not say of whom that party is composed. The anonymous pieces and paragraphs it contains evince the talents and industry employed to give it currency, and it is perfectly well understood by all parties and persons to contain the opinions of certain great men, and certain gentlemen in this House. This inflammatory address to the Irishmen is therefore understood by them to come clothed with high authority. This is the work of a party; this paper is devoted to party; it is assiduously disseminated through the country by a party; to that party is all the credit due; to that party it owes its existence; if they loved the peace of our Zion, if they sought the repose of our country, it would cease to emit its filth; it has flourished by their smiles; it would perish at their frowns.
8 Annals of Cong. 2093-2100. It is, of course, true that some Congressmen who favored the Sedition Act did so on broader grounds.
Harrison Gray Otis would have employed the Sedition Act against all associations, including the Masons: "The spirit of association," he warned, "is a dangerous thing in a free government, and ought carefully to be watched."
Miller, Crisis in Freedom, 187.
48. These charges were made by Fisher Ames in writings published in April, 1799. See Ames, Laocoon, reprinted in II Works of Fisher Ames, 109, at 115, 116. Similar sentiments were expressed by Richard Peters, a federal district judge, in a letter, dated August 24, 1798, to Secretary of State Pickering. Judge Peters apparently thought it necessary, for the good of the country, "to get rid of a Set of Villains who are ready to Strike when they think the Crisis arrives." See Miller, Crisis in Freedom, 137.
49. Parliamentary Debates, Hansard, 1st Series, 34, at 1073. (Emphasis supplied.) Cf. Dennis v. United States, 341 U.S. 494, 510, in which this Court upheld convictions for advocacy of overthrow of the Government "as speedily as circumstances would permit."
50. See Konigsberg v. State Bar of California, 366 U.S. 36, 56 (dissenting opinion); Feldman v. United States, 322 U.S. 487, 501-502 (dissenting opinion).
51. Parliamentary Debates, Hansard, 1st Series, 34, at 987.
52. See, e.g., the argument of Representative Harper on the floor of the House in favor of the passage of the Sedition Act:
He had often heard, in this place and elsewhere, harangues on the liberty of the press as if it were to swallow up all other liberties; as if all law and reason, and every right, human and divine, was to fall prostrate before the liberty of the Press; whereas, the true meaning of it is no more than that a man shall be at liberty to print what he pleases, provided he does not offend against the laws, and not that no law shall be passed to regulate this liberty of the press. He admitted that a law which should say a man shall not slander his neighbor would be unnecessary; but it is perfectly within the Constitution to say that a man shall not do this, or the other, which shall be injurious to the wellbeing of society in the same way that Congress had a right to make laws to restrain the personal liberty of man when that liberty is abused by acts of violence on his neighbor.
8 Annals of Cong. 2102.
53. Dennis v. United States, 341 U.S. 494. See also Yates v. United States, 354 U.S. 298; Scales v. United States, post, p. 203; Noto v. United States, post, p. 290.
54. As the Court said in Bridges v. California, 314 U.S. 252, 263:
What finally emerges from the "clear and present danger" cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law "abridging the freedom of speech, or of the press." It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.
55. Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting). I have recently expressed my belief that the "balancing test" can derive no support whatever from the "clear and present danger" test used by Mr. Justice Holmes and Mr. Justice Brandeis. See Konigsberg v. State Bar of California, 366 U.S. 36, 56 (dissenting opinion).
56. American Communications Assn. v. Douds, 339 U.S. 382, 404.
57. Miller, Crisis in Freedom, 84.