Q&A Why

Why did the Court find the prior restraint unconstitutional?

Prior restraint is a type of censorship in which speech or expression is reviewed and restricted before it occurs. Under prior restraint, a government or authority controls what speech or expression can be publicly released.

Prior restraint has a history of being viewed as a form of oppression in the United States. The Founding Fathers had experienced the effects of prior restraint while under British rule, and they specifically used language in the First Amendment of the U.S. Constitution—freedom of speech and freedom of the press—to guard against prior restraint, which they felt was a violation of democratic principles.

Prior restraint is the review and restriction of speech prior to its release.
Under the First Amendment of the U.S. Constitution, which protects speech and freedom of the press, prior restraint is deemed unconstitutional.
There are some exceptions to prohibitions against prior restraint, including obscenity and national security.
Famous cases dealing with prior restraint include Near v. Minnesota, New York Times Co. v. U.S., Nebraska Press Association v. Stuart, and Brandenberg v. Ohio.

Prior restraint is not limited to speech. It can impact all forms of expression including writing, art, and media. It legally takes the form of licenses, gag orders, and injunctions. The government might outright prevent public distribution of media, or place conditions on speech that make it difficult for it to occur. Something as seemingly harmless as a town ordinance restricting where newspapers can be sold could be considered prior restraint.

U.S. courts view prior restraint as unconstitutional until proven otherwise. The government entity or organization looking to review and restrict speech must offer an extremely compelling reason for the restriction to even be considered. Courts have recognized some of these reasons as exceptions to the general illegality of prior restraint.

Obscenity: U.S. Courts have decided that the distribution of certain "obscene" material can be limited in order to preserve public decency. "Obscene" material is a limited category. Pornographic material on its own might not be considered obscene. However, obscenity applies to pornographic material that features unwilling or underage participants.
Court documents: Most court documents like land deeds, complaints, and marriage licenses are publicly available. A court may place an injunction (a restriction) on court records during an ongoing criminal case to prevent public disclosure. Outside of an injunction, publishing information that may damage a case can be penalized but cannot be used as an exception to allow prior restraint.
National Security: Some of the most powerful and significant arguments in favor of prior restraint came from the publication of government documents. The government has a compelling interest in keeping defense documents classified if they might jeopardize ongoing military action, particularly during wartime. However, courts have determined that the government must prove an inevitable, direct, and immediate danger, in order to justify reviewing and restricting publication in the name of national security.

The most famous cases concerning prior restraint form the foundation of free expression in the U.S. They are cross-disciplinary, focusing on art, speeches, and documents.

Near v. Minnesota was one of the first U.S. Supreme Court cases to take on the issue of prior restraint. In 1931, J.M. Near published the first issue of The Saturday Press, a controversial, independent paper. The governor of Minnesota at the time filed a complaint under the state's public nuisance law for an injunction against the paper. He alleged that The Saturday Press was "malicious, scandalous, and defamatory," qualities which were illegal under the law. In a 5-4 decision delivered by Justice Charles E. Hughes, the court found the statute unconstitutional. The government cannot restrict publication prior to the release date, even if the material being published might be illegal.

In 1971, the Nixon administration attempted to block the publication of a group of documents known as the Pentagon Papers. The papers were part of a study commissioned by the Department of Defense to document U.S. military involvement in Vietnam. The Nixon Administration argued that if the New York Times published information from the study, it would harm U.S. defense interests. Six Supreme Court justices sided with the New York Times, denying the government's request for an injunction. The Court adopted a "heavy presumption" against prior restraint under the First Amendment. The government's interest in keeping the papers secret could not provide a strong enough reason to restrict the freedom of the press. In a concurring opinion, Justice William J. Brennan added that the government did not offer evidence that the papers would result in "direct" and "immediate" harm to U.S. troops.

In 1975, a Nebraska state trial judge issued a gag order. He was concerned that media coverage of a murder trial might prevent the court from seating an unbiased jury. The Supreme Court heard the case a year later. In a unanimous decision delivered by Chief Justice Warren E. Burger, the court struck down the gag order. The court argued that restricting media coverage did little to help ensure a fair trial and allowed rumors to overcome factual reporting. The press should not be hindered except in situations where there is a "clear and present danger" that the media will disrupt the trial, Justice Burger wrote. The court listed ways that a fair trial could be ensured without the use of a gag order.

In 1964, a Klu Klux Klan leader in Ohio delivered a speech at a rally using derogative and racist language. He was arrested under Ohio's syndicalism law for publicly advocating for violence. Clarence Brandenburg was convicted and sentenced and his appeals were affirmed or dismissed by lower courts. The Supreme Court reversed his conviction on the basis that Ohio's syndicalism law violated the First Amendment. The court ignored prior language surrounding inciting violence like "clear and present danger" and "bad tendency." In Brandenburg v. Ohio, the Court unanimously backed the "imminent and lawless action" test. In order to restrict speech for inciting violence, the government must provide a compelling argument to show intent, imminence, and likelihood to incite.

Near v. Minnesota, 283 U.S. 697 (1931).
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).
New York Times Co. v. United States, 403 U.S. 713 (1971).
Howard, Hunter O. “Toward a Better Understanding of the Prior Restraint Doctrine: A Reply to Professor Mayton.” Cornell Law Review, vol. 67, no. 2, Jan. 1982, scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=//www.google.com/&httpsredir=1&article=4267&context=clr.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Annotations

“[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.” “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.

The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson, in which a fivetofour majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official, the majority deemed it “the essence of censorship” that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge. Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. “[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.” The Court did not explore the kinds of restrictions to which the term “prior restraint” would apply, nor do more than assert that only in “exceptional cases” would prior restraint be permissible.

Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint was called upon by the Court as it struck down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them. The doctrine that generally emerged was that permit systems and prior licensing are constitutionally valid so long as the discretion of the issuing official was limited to questions of time, place, and manner. “[O]nly content-based injunctions are subject to prior restraint analysis.”

The most recent Court encounter with the doctrine in the national security area occurred when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional. But no cohesive doctrine relating to the subject, its applications, and its exceptions has emerged.

The Supreme Court has written that “[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.” The prohibition on prior restraint, thus, is essentially a limitation on restraints until a final judicial determination that the restricted speech is not protected by the First Amendment. It is a limitation, for example, against temporary restraining orders and preliminary injunctions pending final judgment, not against permanent injunctions after a final judgment is made that the restricted speech is not protected by the First Amendment.

The Supreme Court has also written “that traditional prior restraint doctrine may not apply to [commercial speech],” and “[t]he vast majority of [federal] circuits . . . do not apply the doctrine of prior restraint to commercial speech.” “Some circuits [however] have explicitly indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech.” In addition, prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual property cases, such as those for infringements of copyright or trademark.

—Confronting a claimed conﬂict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant. Though agreed as to the result, the Justices were divided as to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The Court used the Learned Hand formulation of the “clear and present danger” test and considered as factors in any decision on the imposition of a restraint upon press reporters “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.” Though the Court found that one seeking a restraining order must meet “the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,” it refused to “rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.” Justice Brennan’s concurring opinion ﬂatly took the position that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would have held, and secrecy can do so much harm “that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained.” The only circumstance in which prior restraint of protected speech might be permissible is when publication would cause “virtually certain, direct, and immediate” national harm, Justice Brennan continued, but “the harm to a fair trial that might otherwise eventuate from publications which are suppressed . . . must inherently remain speculative.” Although the result in the case does not foreclose the possibility of future “gag orders,” it does lessen the number to be expected and shifts the focus to other alternatives for protecting trial rights. On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart, the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.”

—Only in the obscenity area has there emerged a substantial consideration of the doctrine of prior restraint, and the doctrine’s use there may be based upon the fact that obscenity is not a protected form of expression. In Kingsley Books v. Brown, the Court upheld a state statute that, though it embodied some features of prior restraint, was seen as having little more restraining effect than an ordinary criminal statute; that is, the law’s penalties applied only after publication. But, in Times Film Corp. v. City of Chicago, a divided Court specifically affirmed that, at least in the case of motion pictures, the First Amendment did not proscribe a licensing system under which a board of censors could refuse to license for public exhibition films that it found obscene. Books and periodicals may also be subjected to some forms of prior restraint, but the thrust of the Court’s opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured.

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Annotations

Granted that the controversy over freedom of expression at the time of the ratification of the First Amendment was limited almost exclusively to the problem of prior restraint, nevertheless the words speak of laws “abridging” the freedom of speech and press, and the modern cases have been largely fought over subsequent punishment. “[T]he mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications . . . .”

“[The purpose of the speech and press clause] has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. . . . The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.” A rule of law permitting criminal or civil liability to be imposed upon those who speak or write on public issues would lead to self-censorship, which would not be relieved by permitting a defense of truth. “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so . . . . The rule thus dampens the vigor and limits the variety of public debate.”

“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law— the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

“But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral.” The fixing of a standard is necessary, by which to determine what degree of evil is “sufficiently substantial to justify resort to abridgment of speech and press and assembly as a means of protection” and how clear and imminent and likely the danger is. That standard has ﬂuctuated over the years, as the cases discussed below demonstrate.

—Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of “symbolic” action, may either counsel the commission of criminal conduct or itself constitute criminal conduct. Leaving aside for the moment the problem of “speech-plus” communication, it becomes necessary to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or promotion of the conduct could be made criminal. Then, in Schenck v. United States, in which the defendants had been convicted of seeking to disrupt recruitment of military personnel by disseminating leaﬂets, Justice Holmes formulated the “clear and present danger” test that has ever since been the starting point of argument. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” The convictions were unanimously affirmed. One week later, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, “we think it necessary to add to what has been said in Schenck v. United States only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.” And, in Debs v. United States, Justice Holmes upheld a conviction because “the natural and intended effect” and the “reasonably probable effect” of the speech for which the defendant was prosecuted was to obstruct military recruiting.

In Abrams v. United States, however, Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien anarchists who had printed leaﬂets seeking to encourage discontent with the United States’ participation in World War I. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the government had made no showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority simply saying that “[t]he tendency of the articles and their efficacy were enough for the offense,” drew a similar dissent. Moreover, in Gitlow v. New York, a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the state. In so doing, the Court discarded Holmes’ test. “It is clear that the question in such cases [as this] is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results. . . . In such cases it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent. . . . And the general statement in the Schenck Case . . . was manifestly intended . . . to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character.” Thus, a state legislative determination “that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power” was almost conclusive to the Court. It is not clear what test, if any, the majority would have used, although the “bad tendency” test has usually been associated with the case. In Whitney v. California, the Court affirmed a conviction under a criminal syndicalism statute based on the defendant’s association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “danger to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence, which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the “clear and present danger” test. “[E]ven advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”

—The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas, it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the “class struggle” language of the constitution of the organization to which he belonged. A conviction for violating a “red ﬂag” law was voided because the statute was found unconstitutionally vague. Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in DeJonge v. Oregon, upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry, the Court narrowly rejected the contention that the standard of guilt could be made the “dangerous tendency” of one’s words, and indicated that the power of a state to abridge speech “even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”

Finally, in Thornhill v. Alabama, a state anti-picketing law was invalidated because “no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.” During the same term, the Court reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inﬂammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.

The stormiest fact situation the Court faced in applying the clear and present danger test occurred in Terminiello v. City of Chicago, in which a fivetofour majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” “A function of free speech under our system of government,” wrote Justice Douglas for the majority, “is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” The dissenters focused on the disorders that had actually occurred as a result of Terminiello’s speech, Justice Jackson saying: “Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.” The Jackson position was soon adopted in Feiner v. New York, in which Chief Justice Vinson said that “[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”

—The period during which clear and present danger was the standard by which to determine the constitutionality of governmental suppression of or punishment for expression was a brief one, extending roughly subject But in one area it was vigorously, though not without dispute, applied to enlarge freedom of utterance and it is in this area that it remains viable. In early contempt-of-court cases in which criticism of courts had been punished as contempt, the Court generally took the position that, even if freedom of speech and press was protected against governmental abridgment, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth. In Bridges v. California, however, in which contempt citations had been brought against a newspaper and a labor leader for statements made about pending judicial proceedings, Justice Black, for a fivetofour majority, began by applying the clear and present danger test, which he interpreted to require that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” He noted that “[t]he substantive evil here sought to be averted . . . appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice.” As for the first evil, Justice Black rejected “[t]he assumption that respect for the judiciary can be won by shielding judges from published criticism . . . .” As for “[t]he other evil feared, disorderly and unfair administration of justice, [it] is more plausibly associated with restricting publications which touch upon pending litigation.” But the “degree of likelihood” of the evil being accomplished was not “sufficient to justify summary punishment.” In dissent, Justice Frankfurter accepted the application of the clear and present danger, but he interpreted it as meaning no more than a “reasonable tendency” test. “Comment however forthright is one thing. Intimidation with respect to specific matters still in judicial suspense, quite another. . . . A publication intended to teach the judge a lesson, or to vent spleen, or to discredit him, or to inﬂuence him in his future conduct, would not justify exercise of the contempt power. . . . It must refer to a matter under consideration and constitute in effect a threat to its impartial disposition. It must be calculated to create an atmospheric pressure incompatible with rational, impartial adjudication. But to interfere with justice it need not succeed. As with other offenses, the state should be able to proscribe attempts that fail because of the danger that attempts may succeed.”

A unanimous Court next struck down the contempt conviction arising out of newspaper criticism of judicial action already taken, although one case was pending after a second indictment. Specifically alluding to clear and present danger, while seeming to regard it as stringent a test as Justice Black had in the prior case, Justice Reed wrote that the danger sought to be averted, a “threat to the impartial and orderly administration of justice,” “has not the clearness and immediacy necessary to close the door of permissible public comment.” Divided again, the Court a year later set aside contempt convictions based on publication, while a motion for a new trial was pending, of inaccurate and unfair accounts and an editorial concerning the trial of a civil case. “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.”

In Wood v. Georgia, the Court again divided, applying clear and present danger to upset the contempt conviction of a sheriff who had been cited for criticizing the recommendation of a county court that a grand jury look into African-American bloc voting, vote buying, and other alleged election irregularities. No showing had been made, said Chief Justice Warren, of “a substantive evil actually designed to impede the course of justice.” The case presented no situation in which someone was on trial, there was no judicial proceeding pending that might be prejudiced, and the dispute was more political than judicial. A unanimous Court in 1972 apparently applied the standard to set aside a contempt conviction of a defendant who, arguing his own case, alleged before the jury that the trial judge by his bias had prejudiced his trial and that he was a political prisoner. Though the defendant’s remarks may have been disrespectful of the court, the Supreme Court noted that “[t]here is no indication . . . that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding” and quoted its previous language about the imminence of the threat necessary to constitute contempt.

—In Dennis v. United States, the Court sustained the constitutionality of the Smith Act, which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. Dennis’ importance here is in the rewriting of the clear and present danger test. For a plurality of four, Chief Justice Vinson acknowledged that the Court had in recent years relied on the Holmes-Brandeis formulation of clear and present danger without actually overruling the older cases that had rejected the test; but while clear and present danger was the proper constitutional test, that “shorthand phrase should [not] be crystallized into a rigid rule to be applied inﬂexibly without regard to the circumstances of each case.” It was a relative concept. Many of the cases in which it had been used to reverse convictions had turned “on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech.”

Here, by contrast, “[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech.” And in combating that threat, the government need not wait to act until the putsch is about to be executed and the plans are set for action. “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.” Therefore, what does the phrase “clear and present danger” import for judgment? “Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ 183 F. 2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.” The “gravity of the evil, discounted by its improbability” was found to justify the convictions.

—Clear and present danger as a test, it seems clear, was a pallid restriction on governmental power after Dennis, and it virtually disappeared from the Court’s language over the next twenty years. Its replacement for part of this period was the much disputed “balancing” test, which made its appearance the year before Dennis in American Communications Ass’n v. Douds. There the Court sustained a law barring from access to the NLRB any labor union if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government. Chief Justice Vinson, for the Court, rejected reliance on the clear and present danger test. “Government’s interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free ﬂow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9(h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board does not contend that political strikes, the substantive evil at which § 9(h) is aimed, are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market.”

The test, rather, must be one of balancing of interests. “When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conﬂicting interests demands the greater protection under the particular circumstances presented.” As the interest in the restriction, the government’s right to prevent political strikes and the disruption of commerce, was much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute.

Justice Frankfurter, in his concurring opinion in Dennis v. United States, rejected the applicability of clear and present danger and adopted a balancing test. “The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interest, within the confines of the judicial process, than by announcing dogmas too inﬂexible for the non-Euclidian problems to be solved.” But the “careful weighing of conﬂicting interests” not only placed in the scale the disparately weighed interest of government in self-preservation and the interest of defendants in advocating illegal action, which alone would have determined the balance, it also involved the Justice’s philosophy of the “confines of the judicial process” within which the role of courts, in First Amendment litigation as in other, is severely limited. Thus, “[f]ull responsibility” may not be placed in the courts “to balance the relevant factors and ascertain which interest in the circumstances [is] to prevail.” “Courts are not representative bodies. They are not designed to be a good reﬂex of a democratic society.” Rather, “[p]rimary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress.” Therefore, after considering at some length the factors to be balanced, Justice Frankfurter concluded: “It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends.” Only if the balance struck by the legislature is “outside the pale of fair judgment” could the Court hold that Congress was deprived by the Constitution of the power it had exercised.

Thereafter, during the 1950s and the early 1960s, the Court used the balancing test in a series of decisions in which the issues were not, as they were not in Douds and Dennis, matters of expression or advocacy as a threat but rather were governmental inquiries into associations and beliefs of persons or governmental regulation of associations of persons, based on the idea that beliefs and associations provided adequate standards for predicting future or intended conduct that was within the power of government to regulate or to prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California, the Court upheld the refusal of the state to certify an applicant for admission to the bar. Required to satisfy the Committee of Bar Examiners that he was of “good moral character,” Konigsberg testified that he did not believe in the violent overthrow of the government and that he had never knowingly been a member of any organization that advocated such action, but he declined to answer any question pertaining to membership in the Communist Party.

For the Court, Justice Harlan began by asserting that freedom of speech and association were not absolutes but were subject to various limitations. Among the limitations, “general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.” The governmental interest involved was the assurance that those admitted to the practice of law were committed to lawful change in society and it was proper for the state to believe that one possessed of “a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form” of government did not meet the standard of fitness. On the other hand, the First Amendment interest was limited because there was “minimal effect upon free association occasioned by compulsory disclosure” under the circumstances. “There is here no likelihood that deterrence of association may result from foreseeable private action . . . for bar committee interrogations such as this are conducted in private. . . . Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association . . . for a bar applicant’s exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution.”

Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion and to sustain proceedings against the Communist Party and its members. In certain other cases, involving state attempts to compel the production of membership lists of the National Association for the Advancement of Colored People and to investigate that organization, use of the balancing test resulted in a finding that speech and associational rights outweighed the governmental interest claimed. The Court used a balancing test in the late 1960s to protect the speech rights of a public employee who had criticized his employers. Balancing, however, was not used when the Court struck down restrictions on receipt of materials mailed from Communist countries, and it was not used in cases involving picketing, pamphleteering, and demonstrating in public places. But the only case in which it was specifically rejected involved a statutory regulation like those that had given rise to the test in the first place. United States v. Robel held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment. Although Chief Justice Warren for the Court asserted that the vice of the law was that its proscription operated per se “without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it,” the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished. In a concluding footnote, the Court said: “It has been suggested that this case should be decided by ‘balancing’ the governmental interests . . . against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conﬂict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way ‘balanced’ those respective interests. We have ruled only that the Constitution requires that the conﬂict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conﬂict.”

—During much of this period, the opposition to the balancing test was led by Justices Black and Douglas, who espoused what may be called an “absolutist” position, denying the government any power to abridge speech. But the beginnings of such a philosophy may be gleaned in much earlier cases in which a rule of decision based on a preference for First Amendment liberties was prescribed. Thus, Chief Justice Stone in his famous Carolene Products “footnote 4” suggested that the ordinary presumption of constitutionality that prevailed when economic regulation was in issue might be reversed when legislation is challenged that restricts “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or that reﬂects “prejudice against discreet and insular minorities . . . tend[ing] seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Then, in Murdock v. Pennsylvania, in striking down a license tax on religious colporteurs, the Court remarked that “[f]reedom of press, freedom of speech, freedom of religion are in a preferred position.” Two years later the Court indicated that its decision with regard to the constitutionality of legislation regulating individuals is “delicate . . . [especially] where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions.” The “preferred-position” language was sharply attacked by Justice Frankfurter in Kovacs v. Cooper, and it dropped from the opinions, although its philosophy did not.

Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it. That a particular governmental regulation abridged speech or deterred it was to him “sufficient to render the action of the State unconstitutional” because he did not subscribe “to the doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a majority of this Court thinks that a State might have an interest sufficient to justify abridgment of those freedoms . . . I believe that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.” As he wrote elsewhere: “First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government.” But the “First and Fourteenth Amendments . . . take away from government, state and federal, all power to restrict freedom of speech, press, and assembly where people have a right to be for such purposes. This does not mean, however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property.” Thus, in his last years on the Court, Justice Black, while maintaining an “absolutist” position, increasingly drew a line between “speech” and “conduct which involved communication.”

—Vagueness is a due process vice that can be brought into play with regard to any criminal and many civil statutes, but it has a special signficance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one’s speech may deter constitutionally protected speech as well as constitutionally unprotected speech. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths, obscenity and indecency, and restrictions on public demonstrations. It is usually combined with the overbreadth doctrine, which focuses on the need for precision in drafting a statute that may affect First Amendment rights; an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non-First Amendment situation the Court would simply void its application to protected conduct.

But, even in a First Amendment situation, the Court has written, “there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now swallow the social benefits of declaring a law ‘overbroad,’ we have insisted that a law’s application to protected speech be ‘substantial,’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, before applying the ‘strong medicine’ of overbreadth invalidation. . . . Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”

Out of a concern that is closely related to that behind the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to do so, “[i]f the First Amendment means anything, it means that regulating speech must be a last—not first— resort.” Thus, the Court applies “strict scrutiny” to content-based regulations of fully protected speech; this means that it requires that such regulations “promote a compelling interest” and use “the least restrictive means to further the articulated interest.”

With respect to most speech restrictions to which the Court does not apply strict scrutiny, the Court applies intermediate scrutiny; i. e., scrutiny that is “midway between the ‘strict scrutiny’ demanded for content-based regulation of speech and the ‘rational basis’ standard that is applied—under the Equal Protection Clause—to government regulation of nonspeech activities.” Intermediate scrutiny requires that the governmental interest be “significant” or “substantial” or “important” (but not necessarily “compelling”), and it requires that the restriction be narrowly tailored (but not necessarily the least restrictive means to advance the governmental interest). Speech restrictions to which the Court does not apply strict scrutiny include those that are not content-based (time, place, or manner restrictions; incidental restrictions) and those that restrict categories of speech to which the Court accords less than full First Amendment protection (campaign contributions; commercial speech). Note that restrictions on expression may be content-based, but will not receive strict scrutiny if they “are justified without reference to the content of the regulated speech.” Examples are bans on nude dancing, and zoning restrictions on pornographic theaters or bookstores, both of which, although content-based, receive intermediate scrutiny on the ground that they are “aimed at combating crime and other negative secondary effects,” and not at the content of speech.

The Court uses tests closely related to one another in free speech cases in which it applies intermediate scrutiny. It has indicated that the test for determining the constitutionality of an incidental restriction on speech “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions,” and that “the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context.”

In addition, the Supreme Court generally requires—even when applying less than strict scrutiny—that, “[w]hen the government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply ‘posit the existence of the disease sought to be cured.’ . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” The Court has held, however, that to sustain a denial of a statute denying minors access to sexually explicit material “requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.”

In certain other contexts, the Court has relied on “common sense” rather than requiring the government to demonstrate that a recited harm was real and not merely conjectural. For example, it held that a rule prohibiting high school coaches from recruiting middle school athletes did not violate the First Amendment, finding that it needed “no empirical data to credit [the] common-sense conclusion that hard-sell [speech] tactics directed at middle school students could lead to exploitation . . . .” On the use of common sense in free speech cases, Justice Souter wrote: “It is not that common sense is always illegitimate in First Amendment demonstration. The need for independent proof varies with the point that has to be established . . . . But we must be careful about substituting common assumptions for evidence when the evidence is as readily available as public statistics and municipal property evaluations, lest we find out when the evidence is gathered that the assumptions are highly debatable.”

—Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard for determining the presence of First Amendment protection. For certain forms of expression for which protection is claimed, the Court engages in “definitional balancing” to determine that those forms are outside the range of protection. Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises. Use of vagueness, overbreadth, and less intrusive means may very well operate to reduce the number of occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re-emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio, a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that “mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success. In Brandenburg, however, the Court reformulated these and other rulings to mean “that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.

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Annotations

The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Speaking in the context of religious freedom, the Court said that, although the freedom to act on one’s beliefs could be limited, the freedom to believe what one will “is absolute.” But matters are not so simple.

—One question that has arisen is whether the government may compel a person to publicly declare or affirm a personal belief. In Minersville School District v. Gobitis, the Court had upheld the power of Pennsylvania to expel from its schools certain children—Jehovah’s Witnesses— who refused upon religious grounds to join in a ﬂag salute ceremony and recite the pledge of allegiance. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” But three years later, in West Virginia State Bd. of Educ. v. Barnette, a sixtothree majority of the Court overturned Gobitis. Justice Jackson, writing for the Court, chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted “a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the ﬂag] bespeaks.” The power of a state to follow a policy that “requires affirmation of a belief and an attitude of mind,” however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual “creates a clear and present danger that would justify an effort even to muffle expression.”

The rationale of Barnette became the basis for the Court’s decision in Wooley v. Maynard, which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto “Live Free or Die.” Acting on the complaint of a Jehovah’s Witness, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment. Nor was there a constitutional violation where compulsory fees were used to subsidize the speech of others.

Other governmental efforts to compel speech have also been held by the Supreme Court to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations, a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their records, an Ohio statute that prohibited the distribution of anonymous campaign literature, and a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message—in this case support for gay rights—that the organizers did not wish to convey.

The principle of Barnette, however, does not extend so far as to bar a government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution. It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.

By contrast, the Supreme Court has found no First Amendment violation when government compels disclosures in commercial speech, or when it compels the labeling of foreign political propaganda. Regarding compelled disclosures in commercial speech, the Court held that an advertiser’s “constitutionally protected interest in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. . . . The right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right.” Regarding compelled labeling of foreign political propaganda, the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign “political propaganda,” he must label such material with certain information, including his identity, the principal’s identity, and the fact that he has registered with the Department of Justice. The Court found that “Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.”

— Despite the Cantwell dictum that freedom of belief is absolute, government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions. It is not clear what precise limitations the Court has placed on these practices.

In its disposition of one of the first cases concerning the federal loyalty-security program, the Court of Appeals for the District of Columbia asserted broadly that “so far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affiliations.” On appeal, this decision was affirmed by an equally divided Court, its being impossible to determine whether this issue was one treated by the Justices. Thereafter, the Court dealt with the loyalty-security program in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or “beliefs plus.” But the same issue was also before the Court in related fields. In American Communications Ass’n v. Douds, the Court was again evenly divided over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in, nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes and other conduct that Congress could prevent. Dissenting, Justice Frankfurter thought the provision too vague, Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief that had not manifested itself in any overt act, and Justice Black thought that government had no power to penalize beliefs in any way. Finally, in Konigsberg v. State Bar of California, a majority of the Court supported dictum in Justice Harlan’s opinion in which he justified some inquiry into beliefs, saying that “[i]t would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions.”

When the same issue returned to the Court years later, three fivetofour decisions left the principles involved unclear. Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar; four Justices endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the states were not precluded from inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his beliefs. The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the Constitution could be taken in good faith. Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation.

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Annotations

“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” It appears from the Court’s opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition, although it has at times been referred to as an independent freedom protected by the First Amendment. The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty-security investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of association.

Freedom of association as a concept thus grew out of a series of cases in the 1950s and 1960s in which certain states were attempting to curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the state. “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” “[T]hese indispensable liberties, whether of speech, press, or association,” may be abridged by governmental action either directly or indirectly, wrote Justice Harlan, and the state had failed to demonstrate a need for the lists which would outweigh the harm to associational rights which disclosure would produce.

Applying the concept in subsequent cases, the Court, in Bates v. City of Little Rock, again held that the disclosure of membership lists, because of the harm to “the right of association,” could be compelled only upon a showing of a subordinating interest; ruled in Shelton v. Tucker that, though a state had a broad interest to inquire into the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all organizations to which they had belonged within the previous five years; again struck down an effort to compel membership lists from the NAACP; and overturned a state court order barring the NAACP from doing any business within the state because of alleged improprieties. Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, though other actions might not have been, the state could not infringe on the “right of association” by ousting the organization altogether.

A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment. “[A]bstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. . . . In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. . . .”

“We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” This decision was followed in three cases in which the Court held that labor unions enjoyed First Amendment protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys; in the second the union retained attorneys on a salaried basis to represent members; in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery. Justice Black wrote: “[T]he First Amendment guarantees of free speech, petition, and assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights. . . .”

Thus, a right to associate to further political and social views is protected against unreasonable burdening, but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was born.

Social contacts that do not occur in the context of an “organized association” may be unprotected, however. In holding that a state may restrict admission to certain licensed dance halls to persons between the ages of 14 and 18, the Court declared that there is no “generalized right of ‘social association’ that includes chance encounters in dance halls.”

In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination requirements. First, Roberts v. United States Jaycees upheld application of the Minnesota Human Rights Act to prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of Rotary Int’l v. Rotary Club of Duarte, the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership. Then, in New York State Club Ass’n v. New York City, the Court upheld against facial challenge New York City’s Human Rights Law, which prohibits race, creed, sex, and other discrimination in places “of public accommodation, resort, or amusement,” and applies to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. In Roberts, both the Jaycees’ nearly indiscriminate membership requirements and the state’s compelling interest in prohibiting discrimination against women were important to the Court’s analysis. The Court found that “the local chapters of the Jaycees are large and basically unselective groups,” age and sex being the only established membership criteria in organizations otherwise entirely open to public participation. The Jaycees, therefore, “lack the distinctive characteristics [e. g., small size, identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the decision of its members to exclude women.” Similarly, the Court determined in Rotary International that Rotary Clubs, designed as community service organizations representing a cross section of business and professional occupations, also do not represent “the kind of intimate or private relation that warrants constitutional protection.” And, in New York City, the fact “that the antidiscrimination provisions of the Human Rights Law certainly could be constitutionally applied at least to some of the large clubs, under the Court’s decisions in Rotary and Roberts,” and the fact that the clubs were “ ‘commercial’ in nature,” helped to defeat the facial challenge.

Some amount of First Amendment protection is still due such organizations; the Jaycees had taken public positions on a number of issues, and, the Court in Roberts noted, “regularly engage[d] in a variety of civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment. There is, however, no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views.” Moreover, the state had a “compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages. . . .”

Because of the near-public nature of the Jaycees and Rotary Clubs—the Court in Roberts likening the situation to a large business attempting to discriminate in hiring or in selection of customers— the cases may be limited in application, and should not be read as governing membership discrimination by private social clubs. In New York City, the Court noted that “opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable through casebycase analysis of specific facts.”

When application of a public accommodations law was viewed as impinging on an organization’s ability to present its message, the Court found a First Amendment violation. Massachusetts could not require the private organizers of Boston’s St. Patrick’s Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members’ gay and lesbian identity, the Court held in Hurley v. Irish-American Gay Group. To do so would require parade organizers to promote a message they did not wish to promote. Roberts and New York City were distinguished as not involving “a trespass on the organization’s message itself.” Those cases stood for the proposition that the state could require equal access for individuals to what was considered the public benefit of organization membership. But even if individual access to the parade might similarly be mandated, the Court reasoned, the gay group “could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.”

In Boy Scouts of America v. Dale, the Court held that application of New Jersey’s public accommodations law to require the Boy Scouts of America to admit an avowed homosexual as an adult member violated the organization’s “First Amendment right of expressive association.” Citing Hurley, the Court held that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” The Boy Scouts, the Court found, engages in expressive activity in seeking to transmit a system of values, which include being “morally straight” and “clean.” The Court “accept[ed] the Boy Scouts’ assertion” that the organization teaches that homosexual conduct is not morally straight. The Court also gave “deference to [the] association’s view of what would impair its expression.” Allowing a gay rights activist to serve in the Scouts would “force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

—The major expansion of the right of association has occurred in the area of political rights. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.” Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes has passed on numerous state restrictions that limit the ability of individuals or groups to join one or the other of the major parties or to form and join an independent political party to further political, social, and economic goals. Of course, the right is not absolute. The Court has recognized that there must be substantial state regulation of the election process, which will necessarily burden the individual’s right to vote and to join with others for political purposes. The validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the governmental interests and the means of implementing those interests. Many restrictions upon political association have survived this sometimes-exacting standard of review, in large measure upon the basis of some of the governmental interests having been found compelling.

If people have a First Amendment right to associate with others to form a political party, then it follows that “[a] political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the State gives a party a role in the election process—as . . . by giving certain parties the right to have their candidates appear on the general-election ballot. Then, for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party’s nominating process, enabling it to prescribe what that process must be.”

A political party’s First Amendment right to limit its membership as it wishes does not render invalid a state statute that allows a candidate to designate his party preference on a ballot, even when the candidate “is unaffiliated with, or even repugnant to, the party” he designates. This is because the statute in question “never refers to the candidates as nominees of any party, nor does it treat them as such”; it merely allows them to indicate their party preference. The Court acknowledged that “it is possible that voters will misinterpret the candidates’ party-preference designations as reﬂecting endorsement by the parties,” but “whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot.” If the form of the ballot used in a particular election is such as to confuse voters, then an as-applied challenge to the statute may be appropriate, but a facial challenge, the Court held, is not.

A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a nonpolicymaking, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations, the Court subsequently held that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” The Court thus abandoned the concept of policymaking, confidential positions, noting that some such positions would nonetheless be protected, whereas some people filling positions not reached by the description would not be. The Court’s opinion makes it difficult to evaluate the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois held that restrictions on patronage apply not only to dismissal or its substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low-level public employees. In 1996, the Court extended Elrod and Branti to protect independent government contractors.

The protected right of association enables a political party to assert against some state regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary election, although legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in an election limited to those voters who affiliated with the party.

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. “[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. . . . We long have recognized 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.” 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. 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. The Buckley Court also narrowly construed the requirement of reporting independent contributions and expenditures in order to avoid constitutional problems.

—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. But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations. For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.

Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment. In Railway Employes’ Dep’t v. Hanson, the Supreme Court upheld the constitutionality of such agreements, noting that the record in the case did not indicate that union dues were being “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment,” such as by being spent to support political candidates. In International Ass’n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.

In Abood v. Detroit Bd. of Education, the Court found Hanson and Street applicable to the public employment context. Recognizing that any system of compelled support restricted employees’ right not to associate and not to support, the Court nonetheless found the governmental interests served by an “agency shop” agreement — the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom. But the Court drew a different balance when it 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. The remedy, however, was not to restrain the union from making non-collective-bargaining-related expenditures, but was 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 under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions. 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”; 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. Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decisionmaker.”

In Davenport v. Washington Education Ass’n, the Court noted that, although Chicago Teachers Union v. Hudson had “set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,” it “never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as ‘outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.’” Thus, the Court held in Davenport that the State of Washington could prohibit “expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents.” The Court added that “Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.”

And then, in Knox v. Service Employees International Union, the Court did suggest constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for nonunion employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic in the first place, and, then, charged that requiring nonunion members to affirmatively opt out of contributing to political activities was “a remarkable boon for unions.” Continuing to call opt-out arrangements impingements on the First Amendment rights of nonunion members, the majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed nonunion employees to opt in rather than requiring them to opt out. Two concurring Justices, echoed by the dissenters, heavily criticized the majority for reaching “significant constitutional issues not contained in the questions presented, briefed, or argued.” Rather, the concurrence more narrowly found that unions may not collect special political assesments from non-union members who earlier objected to nonchargeable (i. e., political) expenses, and could only collect from nonobjecting nonmembers after giving notice and an opportunity to opt out.

Doubts on the constitutionality of mandatory union dues in the public sector intensified in Harris v. Quinn. The Court openly expressed reservations on Abood‘s central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of “labor peace” and the problem of “free ridership.” Specifically, the Court questioned (1) the subject relied on; (2) Abood‘s failure to appreciate the distinctly political context of public sector unions; and (3) Abood‘s dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes. Notwithstanding these concerns about Abood‘s core holding, the Court in Harris declined to overturn Abood outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These “partial-public employees” were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union. As a consequence, the Court concluded that Abood‘s rationale—the labor peace and free rider concerns—did not justify compelling dissenting home health care assistants to subsidize union speech. The question that remains after Harris is whether the Court will, given its open criticism of Abood, overturn the 1977 ruling in the future, or whether the Court will continue to limit Abood to its facts.

In Ysursa v. Pocatello Education Ass’n, the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union’s First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was “justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.”

The Court has held that a labor relations body may 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.

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Annotations

Preservation of the security of the Nation from its enemies, foreign and domestic, is the obligation of government and one of the foremost reasons for government to exist. Pursuit of this goal may lead government officials at times to trespass in areas protected by the guarantees of speech and press and may require the balancing away of rights that might be preserved inviolate at other times. The drawing of the line is committed, not exclusively but finally, to the Supreme Court. In this section, we consider a number of areas in which the necessity to draw lines has arisen.

—Criminal punishment for the advocacy of illegal or of merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Enactment of and prosecutions under the Sedition Act of 1798 and prosecutions under the federal espionage laws and state sedition and criminal syndicalism laws in the 1920s and early 1930s have been alluded to earlier. But it was in the 1950s and the 1960s that the Supreme Court confronted First Amendment concepts fully in determining the degree to which government could proceed against persons and organizations that it believed were plotting and conspiring both to advocate the overthrow of government and to accomplish that goal.

The Smith Act of 1940 made it a criminal offense to knowingly or willfully to advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the government of the United States or of any state by force or violence, or to organize any association that teaches, advises, or encourages such an overthrow, or to become a member of or to affiliate with any such association. No case involving prosecution under this law was reviewed by the Supreme Court until, in Dennis v. United States, it considered the convictions of eleven Communist Party leaders on charges of conspiracy to violate the advocacy and organizing sections of the statute. Chief Justice Vinson’s plurality opinion applied a revised clear and present danger test 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.” “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.”

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.” Justice Jackson’s concurrence was based on his reading of the case as involving “a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy.” Here the government was dealing with “permanently organized, well-financed, semi-secret, and highly disciplined organizations” plotting to overthrow the Government; under the First Amendment “it is not forbidden to put down force and violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose.” 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.”

In Yates v. United States, 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.” 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.

—The Internal Security Act of 1950 provided for a comprehensive regulatory scheme by which “Communist-action organizations” and “Communist-front organizations” could be curbed. 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. 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. Three Justices based their conclusion on findings that the Communist Party was an anti-democratic, secret organization that was subservient to a foreign power and that used more than speech in attempting to achieve its ends, and was therefore subject to extensive governmental regulation.

—The Smith Act provision making it a crime to organize or become a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence was used by the government against Communist Party members. In Scales v. United States, the Court affirmed a conviction under this section and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, “[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy.” 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.

—The consequences of being or becoming a member of a proscribed organization can be severe. Aliens are subject to deportation for such membership. 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. A now-repealed statute required as a condition of access to NLRB processes by any union that each of its officers must file affidavits that he was not a member of the Communist Party or affiliated with it. 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. A section of the Communist Control Act of 1954 was designed to keep the Communist Party off the ballot in all elections. The most recent interpretation of this type of disability is United States v. Robel, in which the Court held unconstitutional under the First Amendment a section of the Internal Security Act that made it unlawful for any member of an organization compelled to register as a “Communist-action” or “Communist-front” organization to work in any defense facility. For the Court, Chief Justice Warren wrote that a statute that so infringed upon freedom of association must be much more narrowly drawn to take precise account of the evils at which it permissibly could be aimed. One could be disqualified from holding sensitive positions on the basis of active, knowing membership with a specific intent to further the unlawful goals of an organization, but that membership that was passive or inactive, or by a person unaware of the organization’s unlawful aims, or by one who disagreed with those aims, could not be grounds for disqualification, certainly not for a non-sensitive position.

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 the Court sustained a statute that required the termination of Social Security old-age benefits to an alien who was deported on grounds of membership in the Communist Party. Proceeding on the basis that no one was “entitled” to Social Security benefits, Justice Harlan for the Court concluded that a rational justification for the law might be the deportee’s inability to aid the domestic economy by spending the benefits locally, although a passage in the opinion could be read to suggest that termination was permissible because alien Communists are undeserving of benefits. Of considerable significance in First Amendment jurisprudence is Speiser v. Randall, in which the Court struck down a state scheme for denying veterans’ property tax exemptions to “disloyal” persons. The system, as interpreted by the state courts, denied the exemption only to persons who engaged in speech that could be criminally punished consistently with the First Amendment, but the Court found the vice of the provision to be that, after each claimant had executed an oath disclaiming his engagement in unlawful speech, the tax assessor could disbelieve the oath taker and deny the exemption, thereby placing on the claimant the burden of proving that he was loyal. “The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken fact-finding— inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens . . . . In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.”

—An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates, unlawful or disloyal action. The Federal Government’s security investigation program has been tested numerous times and First Amendment issues raised, but the Supreme Court has never squarely confronted the substantive constitutional issues, and it has not dealt with the loyalty oath features of the federal program. The Court has, however, had a long running encounter with state loyalty oath programs.

First encountered 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. Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party. 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. 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. 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.”

In the following Term, the Court sustained a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated; the statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification. Justice Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state’s reasonable terms. “If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.” 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. 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.

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. 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. In Shelton v. Tucker, however, a fivetofour majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state’s interests, and had a considerable potential for abuse.

The Court relied on vagueness when loyalty oaths aimed at “subversives” next came before it. In Cramp v. Board of Public Instruction, it unanimously held an oath too vague that required one to swear, inter alia, that “I have not and will not lend my aid, support, advice, counsel or inﬂuence to the Communist Party.” Similarly, in Baggett v. Bullitt, the Court struck down two oaths, one requiring teachers to swear that they “will by precept and example promote respect for the ﬂag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government,” and the other requiring all state employees to swear, inter alia, that they would not “aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration” of government. Although couched in vagueness terms, the Court’s opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the state could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow.

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell involved an oath that as supplemented would have been violated by one who “knowingly and willfully becomes or remains a member of the communist party . . . or any other organization having for its purposes the overthrow by force or violence of the government” with “knowledge of said unlawful purpose of said organization.” The law’s blanketing in of “knowing but guiltless” membership was invalid, wrote Justice Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied. Next, in Keyishian v. Board of Regents, the oath provisions sustained in Adler were declared unconstitutional. A number of provisions were voided as vague, but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But “legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.” Similarly, in Whitehill v. Elkins, an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.

More recent cases do not illuminate whether membership changes in the Court presage a change in view with regard to the loyalty-oath question. In Connell v. Higginbotham an oath provision reading “that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence” was invalidated because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson upheld a clause in an oath “that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method” upon the construction that this clause was mere “repetition, whether for emphasis or cadence,” of the first part of the oath, which was a valid “uphold and defend” positive oath.

— The power of inquiry by congressional and state legislative committees in order to develop information as a basis for legislation is subject to some uncertain limitation when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. Although the Court initially indicated that it would scrutinize closely such inquiries in order to curb First Amendment infringement, later cases balanced the interests of the legislative bodies in inquiring about both protected and unprotected associations and conduct against what were perceived to be limited restraints upon the speech and association rights of witnesses, and upheld wide-ranging committee investigations. Later, the Court placed the balance somewhat differently and required that the investigating agency show “a subordinating interest which is compelling” to justify the restraint on First Amendment rights that the Court found would result from the inquiry. The issues in this field, thus, remain unsettled.

—Possibly the most celebrated governmental action in response to dissent to the Vietnam War—the prosecution of Dr. Benjamin Spock and four others for conspiring to counsel, aid, and abet persons to evade the draft—failed to reach the Supreme Court. Aside from a comparatively minor case, the Court’s sole encounter with a Vietnam War protest allegedly involving protected “symbolic conduct” was United States v. O’Brien. That case affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his draft card. “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Finding that the government’s interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a “passive enforcement” policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.

—A 1962 statute authorizing the Post Office Department to retain all mail from abroad that was determined to be “communist political propaganda” and to forward it to an addressee only upon his request was held unconstitutional in Lamont v. Postmaster General. The Court held that to require anyone to request receipt of mail determined to be undesirable by the government was certain to deter and inhibit the exercise of First Amendment rights to receive information. Distinguishing Lamont, the Court in 1987 upheld statutory classification as “political propaganda” of communications or expressions by or on behalf of foreign governments, foreign “principals,” or their agents, and reasonably adapted or intended to inﬂuence United States foreign policy. “The physical detention of materials, not their mere designation as ‘communist political propaganda,’ was the offending element of the statutory scheme [in Lamont].”

—Although a nonresident alien might be able to present no claim, based on the First Amendment or on any other constitutional provision, to overcome a governmental decision to exclude him from the country, it was arguable that United States citizens who could assert a First Amendment interest in hearing the alien and receiving information from him, such as the right recognized in Lamont, could be able to contest such exclusion. But the Court declined to reach the First Amendment issue and to place it in balance when it found that a governmental refusal to waive a statutory exclusion was on facially legitimate and neutral grounds; the Court’s emphasis, however, upon the “plenary” power of Congress over admission or exclusion of aliens seemed to indicate where such a balance might be drawn.

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Justia › US Law › US Codes and Statutes › US Constitution Annotated › First Amendment -- Religion and Expression › Material Support of Terrorist Organizations

Annotations

Congress may bar supporting the legitimate activities of certain foreign terrorist organizations through speech made to, under the direction of, or in coordination with those groups. So held the Court in Holder v. Humanitarian Law Project, a case challenging an effective prohibition on giving training in peaceful dispute resolution, teaching how to petition the United Nations for relief, providing legal expertise in negotiating peace agreements, and the like. Without express reliance on wartime precedents, and yet also without extended discussion of plaintiffs’ free speech interests, the Court emphasized findings by the political branches that support meant to promote peaceful conduct can nevertheless further terrorism by designated groups in multiple ways. The Court also cited the narrowness of the proscription imposed. Only carefully defined activities done in concert with previously designated organizations were barred. Independent advocacy and mere membership were not restricted. Given the national security and foreign affairs concerns at stake, Congress had adequately balanced the competing interests of individual speech and government regulation, deference to the informed judgment of the political branches being due even absent an extensive record of concrete evidence.

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