CRS Annotated Constitution

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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[p.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 17981 and prosecutions under the federal espionage laws2 and state sedition and criminal syndicalism laws3 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.

The Smith Act of 19405 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[p.1068]ecution under this law was reviewed by the Supreme Court until in Dennis v. United States6 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 test7 and concluded that the evil sought to be prevented was serious enough to justify suppression of speech. “If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase ‘clear and present danger’ of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.”8 “The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch–and–go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score.”9

Justice Frankfurter in concurrence developed a balancing test, which, however, he deferred to the congressional judgment in applying, concluding that “there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security.”10 Justice Jackson’s concurrence was based on his reading of the case as involving “a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy.” Here the Government was dealing with “permanently organized, well–financed, semi–secret, and highly disciplined organizations” plotting[p.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

In Yates v. United States,13 the convictions of several second–string Communist Party leaders were set aside, a number ordered acquitted, and others remanded for retrial. The decision was based upon construction of the statute and appraisal of the evidence rather than on First Amendment claims, although each prong of the ruling seems to have been informed with First Amendment considerations. Thus, Justice Harlan for the Court wrote that the trial judge had given faulty instructions to the jury in advising that all advocacy and teaching of forcible overthrow was punishable, whether it was language of incitement or not, so long as it was done with an intent to accomplish that purpose. But the statute, the Justice continued, prohibited “advocacy of action,” not merely “advocacy in the realm of ideas.” “The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.”14 Second, the Court found the evidence insufficient to establish that the Communist Party had engaged in the required advocacy of action, requiring the Government to prove such advocacy in each instance rather than presenting evidence generally about the Party. Additionally, the Court found the evidence insufficient to link five of the defendants to advocacy of action, but sufficient with regard to the other nine.15

Compelled Registration of Communist Party.—The Internal Security Act of 1950 provided for a comprehensive regulatory scheme by which “Communist–action organizations” and “Com[p.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

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


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, “[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but . . . [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

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[p.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

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. Nestor30 the Court sustained a statute which required the termination of Social Security old age benefits to an[p.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


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.
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.
10 Id. at 517, 542
11 Id. at 561, 572, 575.
12 Id. at 579 (Justice Black dissenting), 581, 589 (Justice Douglas dissenting).
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) .
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.
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
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.
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) .
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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