Subversive Advocacy

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The quest for national security has placed strains on the first amendment when the country has been at war, or threatened by war, or torn by fear of an external enemy or domestic social unrest. Federal and state governments have sought to silence those regarded as "subversives" and internal enemies because they supported a foreign cause or advocated revolutionary change in American institutions.

The alien and sedition acts, passed only seven years after ratification of the First Amendment, were the most extreme of these measures in our history. President john adams and the Federalist Congress used them to stifle the opposition Republicans who were accused of being "servile minions" of France, with which war seemed imminent in early 1798. Seventeen prosecutions were instituted against Republican newspaper editors, officeholders, and adherents, with only one acquittal.

The constitutionality of the Sedition Act was never tested in the Supreme Court, which then had no jurisdiction to review federal criminal convictions. But the act was sustained by the lower federal courts, including three Supreme Court Justices sitting as trial judges. The modern Supreme Court, in new york times co. v. sullivan (1964), has stated that the First Amendment bars prosecution for seditious libel. Opposition to the government in power, accompanied by criticism of official policy and conduct, cannot constitutionally be proscribed as "seditious" or "subversive."

During the nineteenth century there was no federal legislation limiting freedom of speech or freedom of the press. No official efforts were made to silence the Federalist denunciation of the War of 1812. Abolitionist sentiment did not fare so well in the succeeding decades of bitter controversy over slavery. Southern states passed laws limiting the freedom to criticize slavery. During the civil war no sedition act was passed to suppress the widespread opposition to the war in the North. But President abraham lincoln suspended the writ of habeas corpus, controlled the mails, telegraph, and passports, and approved military detention of thousands of persons accused of disloyalty.

The rapid industrialization and urbanization of the country after the Civil War was accompanied by social unrest. The Haymarket Square bombing in Chicago in 1886, the violent Homestead and Pullman strikes in the 1890s, the assassination of President william mckinley in 1901 by a presumed "anarchist," and the militant tactics of the Industrial Workers of the World led to the passage of the first state Criminal Anarchy Law in New York in 1902. By 1921, thirty-three states had enacted similar laws making it a crime to advocate the overthrow of existing government by force or violence. Unlike the Sedition Act of 1798, these laws forbade only the advocacy of illegal means to effect political change.

Together with the federal espionage act of 1917, these state laws were used to suppress opposition to world war i voiced by pacifists, sympathizers with Germany, and international socialists. The 1917 act made it criminal to obstruct recruiting, cause insubordination in the armed forces, or interfere with military operations. Amendments to the Espionage Act (the sedition act of 1918) made it an offense, among other things, to say or do anything that would favor any country at war with the United States, oppose the cause of the United States in the war, or incite contempt for the American form of government or the uniform of the Army or Navy. Under the Espionage Act 877 people were convicted, almost all for expressing opinions about the merits and conduct of the war. The Supreme Court sustained these convictions, rejecting the contention that they violated the First Amendment.

schenck v. united states (1919) was the first of the Espionage Act cases to reach the Supreme Court. Justice oliver wendell holmes wrote the Court opinion affirming the conviction and, for the first time, enunciated the clear and present danger test to determine when advocacy of unlawful conduct is protected by the First Amendment. Holmes also wrote the opinions of the Court in frohwerk v. united states (1919) and debs v. united states (1919), sustaining the convictions of a newspaper editor for questioning the constitutionality of the draft and charging that Wall Street had dragged the country into the war, and of Eugene V. Debs, the railroad union and Socialist party leader, for denouncing the war as a capitalist plot. Just what the "clear and present danger" was in these cases was doubtful, and Holmes and Brandeis soon began to dissent from the way the majority used the test.

Their first great dissent came in abrams v. united states (1919). In his dissenting opinion, which Brandeis joined, Holmes gave new content to the clear and present danger test by emphasizing the immediacy of the danger that must exist. Although Holmes would have softened this requirement, permitting punishment of speech with the specific intent to bring about the danger even if the danger itself was not "immediate," he did not think the necessary intent had been shown in Abrams.

The Red Scare of 1919 and 1920 was induced not only by fear of the Bolshevik revolution and the Communist International but also by the economic and social insecurity that accompanied demobilization after World War I. The palmer raids expressed the federal government's fears and antiradical sentiments. The states resorted to their criminal anarchy laws and the Supreme Court sustained convictions under these laws in gitlow v. new york (1925) and whitney v. california (1927).

In Gitlow the Court assumed that freedom of speech and press, protected by the First Amendment from abridgment by Congress, was a "liberty" protected by the due process clause of the fourteenth amendment against state impairment. In both Gitlow and Whitney the Court refused to apply the clear and present danger test because the state legislatures had prohibited a particular class of speech—the advocacy of the doctrine that the government should be overthrown by violence. Gitlow's advocacy of violent revolution violated the law even if there were no clear and present danger of revolution. The legislature might reasonably seek "to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration."

Dissenting in Gitlow, Holmes argued for application of the clear and present danger test, but did not confront the majority's position. But Brandeis, concurring in Whitney, insisted that courts and juries must be free to decide whether, under the circumstances of each case, "the evil apprehended is [relatively serious and its incidence] so imminent that it may befall before there is opportunity for full discussion.… Only an emergency can justify repression."

From the end of the Red Scare to the outbreak of world war ii, federal action against alleged subversives was limited to deportation of alien communists. State prosecutions under criminal anarchy laws were infrequent after the middle 1920s. The Sedition Act of 1918 was repealed in 1921 and has never been revived.

The Smith Act of 1940 was modeled on the New York Criminal Anarchy law. During World War II, twenty-eight pro-Nazi individuals were prosecuted under it for conspiring to cause insubordination in the armed forces, but the judge died and the prosecution was dropped. Eighteen members of the Trotskyist Socialist Workers party, which opposed the war, were convicted of conspiracy to cause insubordination in the armed forces and to advocate violent overthrow of the government.

On the whole, the country supported World War II. After the Nazi invasion of the Soviet Union, in June 1941, communists became the staunchest supporters of the war. But as soon as the war was won, the activities of the international communist movement resumed. In 1949 eleven leaders of the Communist party were convicted under the Smith Act for conspiring to advocate violent overthrow of the United States government and establishment of a dictatorship of the proletariat, and to organize the Communist party to advocate these goals. The Supreme Court affirmed the convictions, 6–2, in dennis v. united states (1951).

In 1948 the Soviet Union had blockaded Berlin and engineered the communist coup that overthrew the parliamentary regime in Czechoslovakia. By the time the Supreme Court decided Dennis, several Soviet spy rings in the West had been exposed, the communists had taken control in China, and Americans were dying in the korean war. The domestic and foreign policies of the American Communist party were consistent with Soviet policies and directives. In light of these events, a plurality of four Justices, speaking through Chief Justice fred m. vinson, reformulated the clear and present danger test into a balancing test that weighed the seriousness of the danger, discounted by its improbability, against the degree of invasion of freedom of speech.

Justice felix frankfurter concurred, deferring to Congress's judgment regarding the extent of the danger posed by the Communist party and the world communist movement. With the experience of the Nuremberg war crimes trials still fresh in his memory, Justice robert h. jackson also concurred, joining Frankfurter in rejecting the appropriateness of the clear and present danger test to the communist conspiracy.

Though not purporting to overrule Dennis, the Supreme Court, in yates v. united states (1957), reversed convictions of the officers of the Communist party in California. Justice john marshall harlan's plurality opinion read the Smith Act as requiring proof that the defendants had advocated "unlawful action" and not merely "abstract doctrine" that the United States government should be overthrown. Yates did not represent a return to the Holmes-Brandeis version of the clear and present danger test. It emphasized the content of the advocacy, not its consequences. On this view, advocacy of unlawful action was punishable, irrespective of the immediacy of the danger.

After Yates was decided, the government concluded that it could not satisfy the requirements of proof demanded by the Supreme Court and abandoned all prosecutions under the Smith Act. Altogether twenty-nine communists were convicted under that act, including the leaders involved in Dennis and the only person convicted under the provision proscribing membership in the Communist party. His conviction was upheld in scales v. united states (1961) because he was an "active member" who knew of the Party's unlawful goals and had a "specific intent" to achieve them.

In 1950, shortly after the outbreak of the Korean War, Congress enacted the subversive activities control act, which required communist organizations to register with the attorney general. When the Communist party failed to register, the attorney general asked the Subversive Activities Control Board to order it to register and list its members. In communist party v. subversive activities control board (1961) the Court upheld the board's finding that the party was a communist-action organization and its order requiring the party to register. Only Justice hugo l. black dissented from the majority view that the First Amendment did not prohibit Congress from removing the party's "mask of anonymity."

The Supreme Court in 1961 did not pass upon the contention that compulsory registration would violate the right against self-incrimination afforded by the Fifth Amendment because it would subject party members to prosecution under the Smith Act and the 1954 communist control act. This contention was eventually sustained in albertson v. subversive activities control board (1965). As a result, neither the Communist party nor any of its members ever registered under the act, and no organization ever registered as a communist front. In 1968, Congress removed the registration obligation. Instead, the Subversive Activities Control Board was authorized to keep records, open to public inspection, of the names and addresses of communist organizations and their members. But in 1969 and 1970 the courts held that mere membership in the party was protected by the First Amendment, and the board was disbanded in 1973.

The Communist Control Act of 1954 purported to deprive the Communist party of the "rights, privileges, and immunities attendant upon legal bodies." It was not clear whether Congress intended this provision to dissolve the party as a legal organization or only to bar it from the ballot and benefits such as mailing privileges. Though the Supreme Court has not passed upon its constitutionality, the act has become a dead letter.

Although the Espionage Act and the Smith Act remained in force during the vietnam war, no prosecutions were brought under either measure. In Bond v. Floyd (1966) the Supreme Court assumed that opposition to the war and the draft was protected by the First Amendment.

In 1967 a Ku Klux Klan leader was convicted of violating the Ohio criminal syndicalism law by making a speech at a Klan rally to which only television newsmen had been invited. The speech was derogatory of blacks and Jews and proclaimed that if the white race continued to be threatened, "it's possible that there might have to be some revengence [sic] taken." In a per curiam opinion in brandenburg v. ohio (1969) the Supreme Court reversed the conviction and held the Ohio statute unconstitutional. In so doing, it overruled Whitney v. California and again reformulated the clear and present danger doctrine: "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 such action." Although the Court purported to follow Dennis, commentators generally conclude that Brandenburg overruled Dennis. In Communist Party of Indiana v. Whitcomb (1974) the Supreme Court held that it was unconstitutional for Indiana to refuse a place on the ballot to the Communist party of Indiana because its officers had refused to submit an oath that the party "does not advocate the overthrow of local, state or national government by force or violence."

The Brandenburg formula, the most speech-protective standard yet evolved by the Supreme Court, has been criticized from opposing sides. Concurring in Brandenburg, Justices william o. douglas and Black would have abandoned the clear and present danger test in favor of a distinction between ideas and overt acts. Some critics reject even this concession on the ground that an incitement-of-overt-acts test can be manipulated by the courts to cut off speech just when it comes close to being effective.

Others argue that advocacy of the forcible overthrow of the government, or of any unlawful act, is not protected by the First Amendment. Such advocacy is not political speech because it is a call to revoke the results that political speech has produced; violent overthrow destroys the premises of our system. An organization that seeks power through illegal means refuses to abide by the legitimate conditions of party competition in a democracy.

Furthermore, in suppressing totalitarian movements, even if they purport to reject illegal means, a democratic society is not acting to protect the status quo but the very same interest which freedom of speech itself seeks to secure—the possibility of peaceful progress under freedom. In this view, the Brandenburg formula would deny our democracy the constitutional right to act until it might be too late to prevent a totalitarian victory.

Although one may disagree with the view that the problem of a totalitarian party's competing for political power in a democracy is solely one of "freedom of expression," the reasons for toleration—to keep even the freedom of expression open to challenge lest it become a "dead dogma," and to allow extremist groups to advocate revolution because they may represent real grievances that deserve to be heard—must be seriously considered by legislators in determining whether suppression is a wise policy. But if wisdom may sometimes dictate toleration, that conclusion does not imply that the Constitution gives the enemies of freedom the right to organize to crush it.

Carl A. Auerbach


Gunther, Gerald 1975 Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History. Stanford Law Review 27:719–773.

Levy, Leonard W. 1985 Emergence of a Free Press. New York: Oxford University Press.

Linde, Hans A. 1970 "Clear and Present Danger" Reexamined: Dissonants in the Brandenburg Concerto. Stanford Law Review 22:1163–1186.

Nathanson, Nataniel L. 1950 The Communist Trial and the Clear-and-Present-Danger Test. Harvard Law Review 63: 1167–1175.