The Constitutional Protection of Unpopular Speech

In 1948, eleven members of the National Board of the Communist Party in America were arrested and charged with having conspired to encourage the overthrow of the government by force. Specifically, these eleven members were charged with violating the Smith Act, which made such actions illegal. It was a long and public trial, in which 16,000 pages of evidence were produced. The prosecutors argued that these eleven were guilty of being in violation of the Smith Act and that their actions if unpunished could help to unravel free society and the legitimate government. The arrested Communists argued that the Smith Act itself was unconstitutional for having regulated speech too strictly, and that the government fell far short of its obligation in demonstrating the clear and present danger that justified their arrest in the case known as Dennis v. United States.

Writing for a plurality in a divided Court, Chief Justice Vinson upheld the conviction. Interestingly, he did so using the clear and present danger test, meaning that the defendants succeeded in framing the debate of the trial to their liking, but still lost their appeal. Vinson used the words of a lower appeals judge to justify the conviction. “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.” The language resembles that articulated in Schenck with clear and present danger, but it also echoes the bad tendency test. In a concurring opinion, Justice Frankfurter favored a balancing approach. He wrote that Congress that legitimately decided Communism was a real threat, and the courts should not intervene in legislative judgment.

Justice Douglas totally disagreed. In his dissenting opinion, he took a stance known as the “absolute freedoms” test because it interprets the 1st Amendment literally. In his constitutional mind, the words “Congress shall make no law,” meant nothing other than a strict prohibition against the federal regulation of speech. Justice Black also wrote to urge adoption of the preferred freedoms test. He wrote:

“Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”

The wishes of these two Justices would be granted. As high emotions waned and the McCarthy era ended, the hysteria that had fueled arrests and convictions such as those of Dennis and his colleagues died down. With the red scare in the rear view mirror, a new Court under Chief Justice Earl Warren would soon embrace positions protecting freedom of expression more vigorously.

In the 1960’s, the Court would change its tone on protected speech with a flurry of rulings. In Communist Party v. United States (1963) the Court struck down laws requiring Communist organizations to register with the federal government. In 1965 in United States v. Brown, the Court threw out a law preventing communists from working in defense plants. In Elfbrant v. Russell (1966) the Court ruled unconstitutional a requirement of a loyalty oath directed at subversive political parties. All of these ruling protected the free speech or working rights of the politically unpopular, namely Communists. But in one of the most important and controversial decisions it has made, the last major ruling of the Warren Court would not concern any Communist members. Rather, Brandenburg v. Ohio would concern the rights of expression of an organization that was not only unpopular but terribly dangerous and destructive: the KKK.


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