Maintenance of National Security and the First Amendment

Maintenance of National Security and the First Amendment

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

Punishment of Advocacy.—Criminal punishment for the advocacy of illegal or of merely unpopular goals and of ideas did not originate in the United States in the post-World War II concern with Communism. Enactment of and prosecutions under the Sedition Act of 1798585 and prosecutions under the federal espionage laws586 and state sedition and criminal syndicalism laws587 in the 1920s and early 1930s have been alluded to earlier.588 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 which it believed were plotting and conspiring both to advocate the overthrow of government and to accomplish that goal.

585 Ch. 74, 1 Stat. 596 (1798).

586 The cases included Schenck v. United States, 249 U.S. 47 (1919) (affirming conviction for attempting to disrupt conscription by circulation of leaflets bitterly condemning the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming conviction for attempting to create insubordination in armed forces based on one speech advocating socialism and opposition to war, and praising resistance to the draft); Abrams v. United States, 250 U.S. 616 (1919) (affirming convictions based on two leaflets, one of which attacked President Wilson as a coward and hypocrite for sending troops into Russia and the other of which urged workers not to produce materials to be used against their brothers).

587 The cases included Gitlow v. New York, 268 U.S. 652 (1925) (affirming conviction based on publication of “manifesto” calling for the furthering of the “class struggle” through mass strikes and other mass action); Whitney v. California, 274 U.S. 357 (1927) (affirming conviction based upon adherence to party which had platform rejecting parliamentary methods and urging a “revolutionary class struggle,” the adoption of which defendant had opposed).

588 See discussion under “Adoption and the Common Law Background,” and “Clear and Present Danger,” supra. See also Taylor v. Mississippi, 319 U.S. 583 (1943), setting aside convictions of three Jehovah’s Witnesses under a statute that prohibited teaching or advocacy intended to encourage violence, sabotage, or dis-loyalty to the government after the defendants had said that it was wrong for the President “to send our boys across in uniform to fight our enemies” and that boys were being killed “for no purpose at all.” The Court found no evil or sinister purpose, no advocacy of or incitement to subversive action, and no threat of clear and present danger to government.

The Smith Act of 1940589 made it a criminal offense for anyone to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises, or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association. No case involving prosecution under this law was reviewed by the Supreme Court until in Dennis v. United States590 it considered the convictions of eleven Communist Party leaders on charges of conspiracy to violate the advocacy and organizing sections of the statute. Chief Justice Vinson’s plurality opinion for the Court applied a revised clear and present danger test591 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.”592 “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.”593

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.”594 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.”595 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.”596

589 54 Stat. 670, 18 U.S.C. § 2385.

590 341 U.S. 494 (1951).

591 341 U.S. at 510.

592 341 U.S. at 509.

593 341 U.S. at 510-11.

594 341 U.S. at 517, 542.

595 341 U.S. at 561, 572, 575.

596 341 U.S. at 579 (Justice Black dissenting), 581, 589 (Justice Douglas dissenting).

In Yates v. United States,597 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.”598 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.599

597 354 U.S. 298 (1957).

598 354 U.S. at 314, 315-16, 320, 324-25.

Compelled Registration of Communist Party.—The Internal Security Act of 1950 provided for a comprehensive regulatory scheme by which “Communist-action organizations” and “Communist-front organizations” could be curbed.600 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.601 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.602 Three Justices based their conclusion on the premise that the Communist Party was an anti-democratic, secret organization, subservient to a foreign power, and utilizing speech-plus in attempting to achieve its ends and was therefore subject to extensive governmental regulation.603

Punishment for Membership in an Organization That Engages in Proscribed Advocacy.—The Smith Act provision making it a crime to organize or become a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence was used by the Government against Communist Party members. In Scales v. United States,604 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 . . . [t]he clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy.” Only an “active” member of the Party—one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization—was to be punished, the Court said, not a “nominal, passive, inactive or purely technical” member.605

599 354 U.S. at 330-31, 332. Justices Black and Douglas would have held the Smith Act unconstitutional. Id. at 339. Justice Harlan’s formulation of the standard by which certain advocacy could be punished was noticeably stiffened in Brandenburg v. Ohio, 395 U.S. 444 (1969).

600 Ch. 1024, 64 Stat. 987. Sections of the Act requiring registration of Communist-action and Communist-front organizations and their members were repealed in 1968. Pub. L. 90-237, § 5, 81 Stat. 766.

601 Communist Party v. SACB, 367 U.S. 1 (1961). The Court reserved decision on the self-incrimination claims raised by the Party. The registration provisions ultimately floundered on this claim. Albertson v. SACB, 382 U.S. 70 (1965).

602 367 U.S. at 88-105. The quoted phrase appears at 102.

603 367 U.S. at 170-75 (Justice Douglas dissenting on other grounds), 191 (Justice Brennan and Chief Justice Warren dissenting on other grounds). Justice Black’s dissent on First Amendment grounds argued that “Congress has [no] power to outlaw an association, group or party either on the ground that it advocates a policy of violent overthrow of the existing Government at some time in the distant future or on the ground that it is ideologically subservient to some foreign country.” Id. at 147.

604 367 U.S. 203 (1961). Justices Black and Douglas dissented on First Amendment grounds, id. at 259, 262, while Justice Brennan and Chief Justice Warren dissented on statutory grounds. Id. at 278

605 367 U.S. at 228-30. In Noto v. United States, 367 U.S. 290 (1961), the Court reversed a conviction under the membership clause because the evidence was insufficient to prove that the Party had engaged in unlawful advocacy. “[T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.” Id. at 297-98.

Disabilities Attaching to Membership in Proscribed Organizations.—The consequences of being or becoming a member of a proscribed organization can be severe. Aliens are subject to deportation for such membership.606 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.607 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.608 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.609 A section of the Communist Control Act of 1954 was designed to keep the Communist Party off the ballot in all elections.610 The most recent interpretation of this type of disability is United States v. Robel,611 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 thereafter 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.612

606 See 66 Stat. 205 (1952), 8 U.S.C. § 1251(a)(6). “Innocent” membership in an organization which advocates violent overthrow of the government is apparently insufficient to save an alien from deportation. Galvan v. Press, 347 U.S. 522 (1954). More recent cases, however, seem to impose a high standard of proof on the Government to show a “meaningful association,” as a matter of statutory interpretation. Rowoldt v. Perfetto, 355 U.S. 115 (1957); Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963).

607 Subversive Activities Control Act of 1950, § 6, 64 Stat. 993, 50 U.S.C. § 785. The section was declared unconstitutional in Aptheker v. Secretary of State, 378 U.S. 500 (1964), as an infringement of the right to travel, a liberty protected by the due process clause of the Fifth Amendment. But the Court considered the case as well in terms of its restrictions on “freedom of association,” emphasizing that the statute reached membership whether it was with knowledge of the organization’s illegal aims or not, whether it was active or not, and whether the member intended to further the organization’s illegal aims. Id. at 507-14. But see Zemel v. Rusk, 381 U.S. 1, 16-17 (1965), in which the Court denied that State Department area restrictions in its passport policies violated the First Amendment, because the policy inhibited action rather than expression, a distinction the Court continued in Haig v. Agee, 453 U.S. 280, 304-10 (1981).

608 This part of the oath was sustained in American Communications Ass'n v. Douds, 339 U.S. 382 (1950), and Osman v. Douds, 339 U.S. 846 (1950).

609 Konigsberg v. State Bar of California, 366 U.S. 36 (1961); In re Anastaplo, 366 U.S. 82 (1961); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971). Membership alone, however, appears to be an inadequate basis on which to deny admission. Id. at 165-66; Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).

610 Ch. 886, § 3, 68 Stat. 775, 50 U.S.C. § 842. The section was at issue without a ruling on the merits in Mitchell v. Donovan, 290 F. Supp. 642 (D. Minn. 1968) (ordering names of Communist Party candidates put on ballot); 300 F. Supp. 1145 (D. Minn. 1969) (dismissing action as moot); 398 U.S. 427 (1970) (dismissing appeal for lack of jurisdiction).

611 389 U.S. 258 (1967).

612 389 U.S. at 265-66. See also Schneider v. Smith, 390 U.S. 17 (1968).

A somewhat different matter is disqualifying a person for public benefits of some sort because of membership in a proscribed organization or because of some other basis ascribable to doubts about his loyalty. The First Amendment was raised only in dissent when in Flemming v. Nestor613 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.614 Of considerable significance in First Amendment jurisprudence is Speiser v. Randall,615 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, thus 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.”616

613 363 U.S. 603 (1960). Justice Black argued the applicability of the First Amendment. Id. at 628 (dissenting). Chief Justice Warren and Justices Douglas and Brennan also dissented. Id. at 628, 634.

614 363 U.S. at 612. The suggestive passage reads: “Nor . . . can it be deemed irrational for Congress to have concluded that the public purse should not be utilized to contribute to the support of those deported on the grounds specified in the statute.” Id. But see Sherbert v. Verner, 374 U.S. 398, 404-05, 409 n.9 (1963). While the right-privilege distinction is all but moribund, Flemming has been strongly re-affirmed in recent cases by emphasis on the noncontractual nature of such benefits. Richardson v. Belcher, 404 U.S. 78, 80-81 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980).

615 357 U.S. 513 (1958).

616 357 U.S. at 526. For a possible limiting application of the principle, see Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 162-64 (1971), and id. at 176-78 (Justices Black and Douglas dissenting), id. at 189 n.5 (Justices Marshall and Brennan dissenting).

Employment Restrictions and Loyalty Oaths.—An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates, unlawful or disloyal action. The Federal Government’s security investigation program has been tested numerous times and First Amendment issues raised, but the Supreme Court has never squarely confronted the substantive constitutional issues, and it has not dealt with the loyalty oath features of the federal program.617 The Court has, however, had a long running encounter with state loyalty oath programs.618

First encountered619 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.620 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.621 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.622 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.623 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.”624

617 The federal program is primarily grounded in two Executive Orders by President Truman and President Eisenhower, E.O. 9835, 12 Fed. Reg. 1935 (1947), and E.O. 10450, 18 Fed. Reg. 2489 (1953), and a significant amendatory Order issued by President Nixon, E.O. 11605, 36 Fed. Reg. 12831 (1971). Statutory bases include 5 U.S.C. §§ 7311, 7531-32. Cases involving the program were decided either on lack of authority for the action being reviewed, e.g., Cole v. Young, 351 U.S. 536 (1956); and Peters v. Hobby, 349 U.S. 331 (1955), or on procedural due process grounds, Greene v. McElroy, 360 U.S. 474 (1959); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). But cf. United States v. Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17 (1968). A series of three-judge district court decisions, however, invalidated federal loyalty oaths and inquiries. Soltar v. Postmaster General, 277 F. Supp. 579 (N.D. Calif. 1967); Haskett v. Washington, 294 F. Supp. 912 (D.D.C. 1968); Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969); National Ass'n of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C. 1969) (no-strike oath).

618 So-called negative oaths or test oaths are dealt with in this section; for the positive oaths, see discussion supra.

619 Test oaths had first reached the Court in the period following the Civil War, at which time they were voided as ex post facto laws and bills of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).

620 Gerende v. Board of Supervisors of Elections, 341 U.S. 56 (1951) (emphasis original). In Indiana Communist Party v. Whitcomb, 414 U.S. 411 (1974), a requirement that parties and candidates seeking ballot space subscribe to a similar oath was voided because the oath’s language did not comport with the advocacy standards of Brandenburg v. Ohio, 395 U.S. 444 (1969). Four Justices concurred more narrowly. 414 U.S. at 452 n.3. See also Whitcomb v. Communist Party of Indiana, 410 U.S. 976 (1973).

621 Garner v. Board of Public Works, 341 U.S. 716 (1951). Justice Frankfurter dissented in part on First Amendment grounds, id. at 724, Justice Burton dissented in part, id. at 729, and Justices Black and Douglas dissented completely, on bill of attainder grounds, id. at 731.

622 341 U.S. at 720. Justices Frankfurter and Burton agreed with this ruling. Id. at 725-26, 729-30.

623 341 U.S. at 723-24.

624 341 U.S. at 720-21. Justice Frankfurter objected that the oath placed upon the takers the burden of assuring themselves that every organization to which they belonged or had been affiliated with for a substantial period of time had not engaged in forbidden advocacy.

In the following Term, the Court sustained a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations 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.625 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.”626 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.627 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.628

625 Adler v. Board of Education, 342 U.S. 485 (1952). Justice Frankfurter dissented because he thought no party had standing. Id. at 497. Justices Black and Douglas dissented on First Amendment grounds. Id. at 508.

626 342 U.S. at 492.

627 342 U.S. at 492.

628 342 U.S. at 494-96.

Invalidated the same year was an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment “solely on the basis of organizational membership.” Stressing that membership might be innocent, that one might be unaware of an organization’s aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims.629 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.630 In Shelton v. Tucker,631 however, a five-to-four majority held that, while a State could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the State’s interests, and had a considerable potential for abuse.

Vagueness was then employed by the Court when loyalty oaths aimed at “subversives” next came before it. Cramp v. Board of Public Instruction632 unanimously held too vague an oath 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,633 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.634

629 Wieman v. Updegraff, 344 U.S. 183 (1952).

630 Beilan v. Board of Education, 357 U.S. 399 (1958); Lerner v. Casey, 357 U.S. 458 (1958); Nelson v. County of Los Angeles, 362 U.S. 1 (1960). Compare Slochower v. Board of Higher Education, 350 U.S. 551 (1956). The self-incrimination aspects of these cases are considered infra, under analysis of the Fifth Amendment.

631 364 U.S. 479 (1960). “It is not disputed that to compel a teacher to disclose his every associational tie is to impair that teacher’s right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.” Id. at 485-86. Justices Frankfurter, Clark, Harlan, and Whittaker dissented. Id. at 490, 496.

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell635 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.636

Next, in Keyishian v. Board of Regents,637 the oath provisions sustained in Adler638 were declared unconstitutional. A number of provisions were voided as vague,639 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.”640 Similarly, in Whitehill v. Elkins,641 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.

632 368 U.S. 278 (1961). For further proceedings on this oath, see Connell v. Higginbotham, 305 F. Supp. 445 (M.D. Fla. 1970), aff'd in part and rev'd in part, 403 U.S. 207 (1971).

633 377 U.S. 360 (1964). Justices Clark and Harlan dissented. Id. at 380

634 377 U.S. at 369-70.

635 384 U.S. 11 (1966). Justices White, Clark, Harlan, and Stewart dissented. Id. at 20.

636 384 U.S. at 16, 17, 19. “Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities pose no threat, either as citizens or public employees.” Id. at 17.

637 385 U.S. 589 (1967). Justices Clark, Harlan, Stewart, and White dissented. Id. at 620.

638 Adler v. Board of Education, 342 U.S. 485 (1952).

639 Keyishian v. Board of Regents, 385 U.S. 589, 597-604 (1967).

640 385 U.S. at 608. Note that the statement here makes specific intent or active membership alternatives in addition to knowledge while Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), requires both in addition to knowledge.

641 389 U.S. 54 (1967). Justices Harlan, Stewart, and White dissented. Id. at 62.

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. Higginbotham642 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. Richardson643 upheld a clause in an oath “that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method” upon the construction that this clause was mere “repetition, whether for emphasis or cadence,” of the first part of the oath, which was a valid “uphold and defend” positive oath.

Legislative Investigations and the First Amendment.— The power of inquiry by congressional and state legislative committees in order to develop information as a basis for legislation644 is subject to some uncertain limitation when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. While the Court initially indicated that it would scrutinize closely such inquiries in order to curb First Amendment infringement,645 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.646 More recently, the Court has 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.647 The issues in this field, thus, remain unsettled.

642 403 U.S. 207 (1971).

643 405 U.S. 676, 683-84 (1972).

644 See subtopics under “Investigations in Aid of Legislation,” supra.

645 See United States v. Rumely, 345 U.S. 41 (1953); Watkins v. United States, 354 U.S. 178, 197-98 (1957); Sweezy v. New Hampshire, 354 U.S. 234, 249-51 (1957). Concurring in the last case, Justices Frankfurter and Harlan would have ruled that the inquiry there was precluded by the First Amendment. Id. at 255.

Interference With War Effort.—Unlike the dissent to United States participation in World War I, which provoked several prosecutions, the dissent to United States action in Vietnam was subjected to little legal attack. Possibly the most celebrated governmental action, the prosecution of Dr. Spock and four others for conspiring to counsel, aid, and abet persons to evade or to refuse obligations under the Selective Service System, failed to reach the Supreme Court.648 Aside from a comparatively minor case,649 the Court’s sole encounter with a Vietnam War protest allegedly involving protected “symbolic conduct” was United States v. O'Brien.650 That case affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O'Brien had publicly burned his 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.”651 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 that needed to serve the interest, the Court upheld the statute. More recently, 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.652

646 Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 365 U.S. 431 (1961). Chief Justice Warren and Justices Black, Douglas, and Brennan dissented in each case.

647 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). Justices Harlan, Clark, Stewart, and White dissented. Id. at 576, 583. See also DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966).

648 United States v. Spock, 416 F.2d 165 (1st Cir. 1969).

649 In Schacht v. United States, 398 U.S. 58 (1970), the Court reversed a conviction under 18 U.S.C. § 702 for wearing a military uniform without authority. The defendant had worn the uniform in a skit in an on-the-street anti-war demonstration, and 10 U.S.C. § 772(f) authorized the wearing of a military uniform in a “theatrical production” so long as the performance did not “tend to discredit” the military. This last clause the Court held unconstitutional as an invalid limitation of freedom of speech.

650 391 U.S. 367 (1968).

651 391 U.S. at 376-77. For recent cases with suggestive language, see Snepp v. United States, 444 U.S. 507 (1980); Haig v. Agee, 453 U.S. 280 (1981).

652 Wayte v. United States, 470 U.S. 598 (1985). The incidental restriction on First Amendment rights to speak out against the draft was no greater than necessary to further the government’s interests in “prosecutorial efficiency,” obtaining sufficient proof prior to prosecution, and promoting general deterrence (or not appearing to condone open defiance of the law). See also United States v. Albertini, 472 U.S. 675 (1985) (order banning a civilian from entering military base valid as applied to attendance at base open house by individual previously convicted of destroying military property).

Suppression of Communist Propaganda in the Mails.—A 1962 statute authorizing the Post Office Department to retain all mail from abroad which 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.653 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.654 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.655 “The physical detention of materials, not their mere designation as ‘communist political propaganda,’ was the offending element of the statutory scheme [in Lamont].”656

Exclusion of Certain Aliens as a First Amendment Problem.—While 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 La-mont, could be able to contest such exclusion.657 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 exclusion658 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.659

653 381 U.S. 301 (1965). The statute, 76 Stat. 840, was the first federal law ever struck down by the Court as an abridgment of the First Amendment speech and press clauses.

654 381 U.S. at 307. Justices Brennan, Harlan, and Goldberg concurred, spelling out in some detail the rationale of the protected right to receive information as the basis for the decision.

655 Meese v. Keene, 481 U.S. 465 (1987).

656 481 U.S. at 480.

657 The right to receive information has been prominent in the rationale of several cases, e.g., Martin v. City of Struthers, 319 U.S. 141 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Stanley v. Georgia, 394 U.S. 557 (1969).

658 By §§ 212(a)(28)(D) and (G) of the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1182(a)(28)(D) and (G), aliens who advocate or write and publish “the economic, international, and governmental doctrines of world communism” are made ineligible to receive visas and are thus excluded from the United States. Upon the recommendation of the Secretary of State, however, the Attorney General is authorized to waive these provisions and to admit such an alien temporarily into the country. INA § 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A).

659 Kleindienst v. Mandel, 408 U.S. 753 (1972).

Material Support of Terrorist Organizations

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,54 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.55 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.56

54 543 U.S. 77 (2010).

55 The six-Justice majority also held that the statute at issue gave adequate notice of what conduct was prohibited, a conclusion with which the dissenting Justices agreed, and basic First Amendment rights of association and assembly were not implicated, a conclusion about which the dissent was less sanguine. 130 S. Ct. 2705, 2718-22, 2730-31 (2010). See also 130 S. Ct. at 2732-33 (2010) (Breyer, J., dissenting).

56 The majority purported to apply a level of scrutiny more rigorous than the intermediate scrutiny test applied in cases in which conduct, rather than the content of speech, is the primary target of regulation. 130 S. Ct. at 2724. The dissent found the majority's analysis to be too deferential and insufficiently exacting, and also thought the case might be susceptible to resolution on statutory grounds if remanded. 130 S. Ct. at 2734-39 (Breyer, J., dissenting).

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