American Communications Association v. Douds
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''American Communications Association v. Douds'', 339 U.S. 382 (1950), is a 5-to-1 ruling by the United States Supreme Court which held that the Taft–Hartley Act's imposition of an anti-
communist Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, a s ...
oath on
labor union A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits ( ...
leaders does not violate the First Amendment to the United States Constitution, is not an '' ex post facto'' law or bill of attainder in violation of Article One, Section 10 of the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, and is not a "test oath" in violation of Article Six of the Constitution.


Background

The
American Communications Association The American Communications Association (ACA) was a telegraph and radio workers union, founded in 1931. History In 1931, ACA was founded as the American Radio Telegraphists Association (ARTA) by Mervyn Rathbone. The union represented telegraphists ...
(ACA) was founded in 1931 as the American Radio Telegraphists Association (ARTA) by Mervyn Rathbone. The union represented
telegraphists Telegraphists Football Club was a 19th-century association football club based at Govan, now in Glasgow. History The club was founded in 1874 for workers at the Telegraph Department of the Glasgow General Post Office, as a winter activity for ...
and radio operators (on land and at sea) in the United States. The union had previously been involved in a Supreme Court case regarding the use of strikebreakers in
strikes Strike may refer to: People *Strike (surname) Physical confrontation or removal *Strike (attack), attack with an inanimate object or a part of the human body intended to cause harm *Airstrike, military strike by air forces on either a suspected ...
('' NLRB v. Mackay Radio & Telegraph Co.'', 304 U.S. 333 (1938)), which it had lost. In 1937, the union changed its name to the American Communications Association and affiliated with the newly formed
Congress of Industrial Organizations The Congress of Industrial Organizations (CIO) was a federation of unions that organized workers in industrial unions in the United States and Canada from 1935 to 1955. Originally created in 1935 as a committee within the American Federation of ...
. A majority of the union's members were strongly left-wing, and most of the union's leaders were members of the
Communist Party USA The Communist Party USA, officially the Communist Party of the United States of America (CPUSA), is a communist party in the United States which was established in 1919 after a split in the Socialist Party of America following the Russian Revo ...
(CPUSA)—with the union effectively under the control of the CPUSA. The United States Congress enacted the
National Labor Relations Act The National Labor Relations Act of 1935, also known as the Wagner Act, is a foundational statute of United States labor law that guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and ...
(NLRA) on June 27, 1935, and President Franklin D. Roosevelt signed it into law on July 5. In 1947, Congress amended the NLRA by enacting the Labor–Management Relations Act (better known as the Taft-Hartley Act) on June 23, 1947, overriding President
Harry S. Truman Harry S. Truman (May 8, 1884December 26, 1972) was the 33rd president of the United States, serving from 1945 to 1953. A leader of the Democratic Party, he previously served as the 34th vice president from January to April 1945 under Franklin ...
's veto. Section 9(h) of the Taft-Hartley Act required leaders of labor unions to file an affidavit with the National Labor Relations Board affirming that they were not members of the Communist Party USA and did not advocate the violent overthrow of the United States federal government.Abernathy and Perry, ''Civil Liberties Under the Constitution,'' 1993, p. 260. If a union had an elected leader who did not file such an affidavit, that union would lose the protection of the NLRA. ACA leaders categorically refused to sign the anti-communist affidavits on the grounds that the oaths violated their First Amendment rights. On October 29, 1947, Charles T. Douds, regional director of the National Labor Relations Board in New York City, barred the American Communications Association from appearing on an NLRB-supervised union organizing election (its very first action under the new Taft-Hartley anti-communist oath provisions)."High Court Will Rule on Two Cases Involving Taft Act Oath and Eisler," ''New York Times,'' November 9, 1948. The ACA sued to have the provision declared unconstitutional as a violation of its leaders' First Amendment rights.Loftus, "High Court Delays Red Clause Ruling," ''New York Times,'' January 14, 1949. On June 29, 1948, the United States Court of Appeals for the Second Circuit held, in a 2-to-1 decision written by Judge Thomas Walter Swan, that Section 9(h) did not impermissibly impose on union members' First Amendment rights."Final Court Test on Taft Bill Seen," ''New York Times,'' June 30, 1948. Attorney Victor Rabinowitz appealed the case to the Supreme Court. The U.S. Supreme Court granted
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
on November 8, 1949. Although the Court was due to hear oral argument on January 13, 1949, it delayed this in order to take on another case (''United Steelworkers of America v. National Labor Relations Board'') with almost identical issues. Argument was rescheduled for February 28, 1949, but did not occur until October 11 so that both cases could be heard together. Three of the Court's most liberal justices did not participate in the decision.Wiecek, ''History of the Supreme Court of the United States...,'' 2006, p. 547. Justice William O. Douglas did not participate because he had nearly been killed in a horseback-riding accident earlier in the year, and was still convalescing at his home in Arizona. Associate Justice Tom Clark had been President Truman's
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
, and had overseen the prosecution of the ACA. Although he joined the Court on August 24, 1949, Clark had recused himself to his prior involvement in the case. Associate Justice
Wiley Blount Rutledge Wiley Blount Rutledge Jr. (July 20, 1894 – September 10, 1949) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1943 to 1949. The ninth and final justice appointed by President Franklin ...
, a staunch liberal and strong advocate for civil rights, had died unexpectedly of a
stroke A stroke is a medical condition in which poor blood flow to the brain causes cell death. There are two main types of stroke: ischemic, due to lack of blood flow, and hemorrhagic, due to bleeding. Both cause parts of the brain to stop functionin ...
on September 10, 1949, at the age of 55. His successor, 59-year-old Sherman Minton, a former Democratic
Senator A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
from Indiana and a judge on the United States Court of Appeals for the Seventh Circuit, was nominated as his replacement on September 16, 1949, but was not sworn in until October 12. His arrival on the Court came two days after oral argument, and he was not able to participate in the decision.


Decision


Majority ruling

Chief Justice
Fred M. Vinson Frederick "Fred" Moore Vinson (January 22, 1890 – September 8, 1953) was an American attorney and politician who served as the 13th chief justice of the United States from 1946 until his death in 1953. Vinson was one of the few Americans to ...
wrote the plurality decision for the majority, joined by Associate Justices
Stanley Forman Reed Stanley Forman Reed (December 31, 1884 – April 2, 1980) was an American lawyer and jurist who served as an Associate Justice of the U.S. Supreme Court from 1938 to 1957. He also served as U.S. Solicitor General from 1935 to 1938. Born in Mas ...
and Harold Hitz Burton. Associate Justice Felix Frankfurter joined in all but Part VII of the majority opinion. In Part I of the decision, Vinson first reviewed the relevant language in the Taft-Hartley Act, as well as that language which provided for processing of affidavits and imposition of penalties in the event no affidavits were filed in the time permitted. He also reviewed the justification for upholding the constitutionality of the NLRA, which was to remove obstructions to interstate commerce. He also reviewed Congress' justification for passing the Taft-Hartley Act, which also attempted to remove impediments to interstate commerce—including the so-called "political strike," in which "legitimate trade union objectives" were subordinated by the Communist Party to political objectives. In Part II, Vinson posed what a plurality of the court believed was the key question:
We are, therefore, neither free to treat § 9(h) as if it merely withdraws a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those persons who do not sign the affidavit from holding union office. The practicalities of the situation place the proscriptions of § 9(h) somewhere between those two extremes. The difficult question that emerges is whether, consistently with the First Amendment, Congress, by statute, may exert these pressures upon labor unions to deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations.
Part III of the decision addressed Congress' power to prevent political strikes through the Commerce Clause, whether the remedy designed was reasonable, and whether the threat posed by the Communist Party was so unique in its use of political strikes and in advocacy of violence that Congress could single it out. Vinson answered all questions affirmatively. Citing ''
In re Summers ''In re Summers'', 325 U.S. 561 (1945), is a 5-to-4 ruling by the United States Supreme Court which held that the First and Fourteenth amendment freedoms of a conscientious objector were not infringed when a state bar association declined to admi ...
'', 325 U.S. 561 (1945); '' Clarke v. Deckebach'', 274 U.S. 392 (1927); and ''
Hirabayashi v. United States ''Hirabayashi v. United States'', 320 U.S. 81 (1943), was a case in which the Supreme Court of the United States, United States Supreme Court held that the application of curfews against members of a minority group were constitutional when the nati ...
'', 320 U.S. 81 (1943), among others, Vinson noted that the Constitution often permitted otherwise irrelevant beliefs, personal traits, or employment status to be infringed upon in certain, limited circumstances. The question addressed in Part IV of the decision was whether the Communist Party presented such circumstances. The unions had argued that a " clear and present danger" test be applied to the legislation, as this was a First Amendment issue, but could not agree on how to do so. Vinson rejected this test as mechanical. But Congress had not concluded in enacting the Taft-Hartley Act that expressing communist beliefs was a danger; rather, Congress had wished to eliminate impediments to interstate commerce.''American Communications Association v. Douds'', 339 U.S. 382, 396. The problem with political strikes, Vinson asserted, was that rather than allowing speech to combat speech in the "
marketplace of ideas The marketplace of ideas is a rationale for freedom of expression based on an analogy to the Economics, economic concept of a free market. The marketplace of ideas holds that the truth will emerge from the competition of ideas in free, transparent ...
", strikes constitute force and coercion which Congress has every authority to regulate. One of the unions had argued that political strikes did not constitute such an imminent danger as to pass constitutional scrutiny, but Vinson rejected this once more as a mechanical application of an inapt test. Rather, Vinson argued, the Constitution permits infringement of constitutionally protected rights when a sound truck invades the privacy of the home ('' Kovacs v. Cooper'', 336 U.S. 77 (1949)), unauthorized parades disrupt traffic (''
Cox v. New Hampshire ''Cox v. New Hampshire'', 312 U.S. 569 (1941), was a case in which the Supreme Court of the United States held that, although the government cannot regulate the contents of speech, it can place reasonable time, place, and manner restrictions on s ...
'', 312 U.S. 569, (1941)), the health of children is at stake (''
Prince v. Massachusetts ''Prince v. Massachusetts'', 321 U.S. 158 (1944), was a case in which the Supreme Court of the United States held that the government has broad authority to regulate the actions and treatment of children. Parental authority is not absolute and ca ...
'', 321 U.S. 158 (1944)), or the provision of public services is affected (''
United Public Workers v. Mitchell ''United Public Workers v. Mitchell'', 330 U.S. 75 (1947), is a 4-to-3 ruling by the United States Supreme Court which held that the Hatch Act of 1939, as amended in 1940, does not violate the First, Fifth, Ninth, or Tenth amendments to U.S. Co ...
'', 330 U.S. 75 (1947)). Advocating a balancing of interests and citing ''
Reynolds v. United States ''Reynolds v. United States'', 98 U.S. 145 (1878), was a Supreme Court of the United States case that held that religious duty was not a defense to a criminal indictment. ''Reynolds'' was the first Supreme Court opinion to address the First Amen ...
'', 98 U. S. 145 (1878) (an individual's religious beliefs cannot be accepted as proof of a felony act without evidence of commission of the crime), Vinson instead proposed a balancing test. Part V of the decision discussed whether political strikes posed such a significant issue as to permissibly infringe on freedom of speech. Vinson refused to substitute the Court's judgment for the congressional determination that this was the case. In accepting the authority of government to promote strong unions, Vinson observed, the Court had repeatedly also accepted the authority of government to infringe in sometimes substantial ways upon individual liberties. The Taft-Hartley Act's penalties, Vinson held, were not direct infringements on the freedom to speak and thus not as onerous as infringements the Court had approved in the past. Vinson rejected the suggestion that the statute had not been narrowly drawn. Although legislation could have been enacted which made political strikes themselves unlawful (rather than require anti-communist affidavits), Vinson asserted that:
...the legislative judgment that interstate commerce must be protected from a continuing threat of such strikes is a permissible one in this case. The fact that the injury to interstate commerce would be an accomplished fact before any sanctions could be applied, the possibility that a large number of such strikes might be called at a time of external or internal crisis, and the practical difficulties which would be encountered in detecting illegal activities of this kind are factors which are persuasive that Congress should not be powerless to remove the threat, not limited to punishing the act.
Part VI of the decision discussed whether the statute impermissibly targeted the Communist Party as the sole political party seeking the violent overthrow of the United States government. If the statute had penalized anyone who advocated violent overthrow of the government, Vinson held, there would be new constitutional doubts raised. But it was the Court's long-held tenet that statutes should be construed constitutionally wherever possible. Subsequently, Vinson interpreted Section 9(h) narrowly as barring from union office those who actually advocated overthrow of the government and not those who (for example) believed it would happen without their assistance. Vinson reiterated that the balancing of interests in Part V had found the infringement on free speech permissible. But how did this reconcile with ''
Reynolds v. United States ''Reynolds v. United States'', 98 U.S. 145 (1878), was a Supreme Court of the United States case that held that religious duty was not a defense to a criminal indictment. ''Reynolds'' was the first Supreme Court opinion to address the First Amen ...
''? Because, Vinson said, "Insofar as a distinction between beliefs and political affiliations is based upon absence of any 'overt act' ... the act of joining the Party is crucial. ... courts and juries every day pass upon knowledge, belief and intent—the state of men's minds—having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred." In Part VII, Vinson address whether Section 9(h) was unconstitutionally vague and/or was a bill of attainder or ''ex post facto'' law. Vinson admitted that, hypothetically, the language of the Act might be construed as vague. But in accordance with the Court's long-held rule, he construed the Act narrowly and asserted that there was no vagueness.''American Communications Association v. Douds'', 339 U.S. 382, 413. Although the unions had held the Act was a bill of attainder under ''
United States v. Lovett ''United States v. Lovett'', 328 U.S. 303 (1946), was a United States Supreme Court case in which the Court held that Congress may not forbid the payment of a salary to a specific individual, as it would constitute an unconstitutional bill of atta ...
'', 328 U.S. 303 (1946); ''
Ex parte Garland ''Ex parte Garland'', 71 U.S. (4 Wall.) 333 (1866), was an important United States Supreme Court case involving the disbarment of former Confederate officials. Background In January 1865, the US Congress passed a law that effectively disbarred for ...
'', 71 U.S. 333 (1867); and '' Cummings v. Missouri'', 71 U.S. 277 (1867), Vinson observed that these cases punished past actions whereas Section 9(h) punished only future conduct. Nor did the Act run afoul of Article VI of the Constitution: "...the mere fact that § 9(h) is in oath form hardly rises to the stature of a constitutional objection. All that was forbidden was a 'religious Test.' We do not think that the oath here involved can rightly be taken as falling within that category." The judgment of the district court was affirmed.''American Communications Association v. Douds'', 339 U.S. 382, 415.


Concurrence

Associate Justice Felix Frankfurter concurred with the majority opinion except as to Part VII. Frankfurter argued that constitutional questions should be decided as narrowly as possible. He asserted that "it would make undue inroads upon the policymaking power of Congress" to deny the government the right to prevent political strikes and disruptions to interstate commerce so long as it does not do so in an arbitrary way or infringes on unrelated rights. However, despite his agreement with nearly all of the majority's reasoning in Parts I-VI, Frankfurter held that portions of Section 9(h) over impermissibly overbroad. Section 9(h) "ask /nowiki> assurances from men regarding matters that open the door too wide to mere speculation or uncertainty. It is asking more than rightfully may be asked of ordinary men to take oath that a method is not 'unconstitutional' or 'illegal' when constitutionality or legality is frequently determined by this Court by the chance of a single vote."''American Communications Association v. Douds'', 339 U.S. 382, 420. The safeguards of the judicial system, Frankfurter asserted, were "too tenuous to neutralize the danger" to First Amendment freedoms. Section 9(h) simply goes too far, he said, in demanding that an oath taken today—even if well-considered, sincere, and seriously undertaken—is predictive of all future behavior and belief.
I cannot deem it within the rightful authority of Congress to probe into opinions that involve only an argumentative demonstration of some coincidental parallelism of belief with some of the beliefs of those who direct the policy of the Communist Party, though without any allegiance to it. To require oaths as to matters that open up such possibilities invades the inner life of men...''American Communications Association v. Douds'', 339 U.S. 382, 422.
Frankfurter acknowledged, however, that only these parts of Section 9(h) were invalid, and he would have remanded the case back to the district court with instructions for the union officers to obey only those constitutionally sound provisions.


Concurrence/Dissent

Associate Justice
Robert H. Jackson Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an Associate Justice of the Supreme Court of the United States, Associate Justice of the Supreme Court of the Unit ...
concurred in part and dissented in part. Jackson held that the critical distinction was the nature of the Communist Party: "If the statute before us required labor union officers to forswear membership in the Republican Party, the Democratic Party or the Socialist Party, I suppose all agree that it would be unconstitutional. But why, if it is valid as to the Communist Party?" But "the Communist Party is something different, in fact, from any other substantial party we have known, and hence may constitutionally be treated as something different in law." Jackson reviewed at length the reasons why the Communist Party was unique: It constituted a minority which advocated the seizing of power through non-majoritarian means, it was a political party controlled by a foreign government, it was dedicated to violence as the means of seizing power (including "occasional terroristic and threatening methods, such as picketing courts and juries, political strikes and sabotage"), it sought to achieve its violent ends by controlling the labor movement (control it must conceal in order to be effective), and it considers all its members "agents" of the party (unlike loosely-knit "native" parties). Jackson equated the power of Congress to protect a union from domination by the Communist Party equal to the power Congress had to prevent a union from being dominated by an employer. The Taft-Hartley Act did not prevent unions from governing themselves or union members from electing Communists as its officers, but rather ensured transparency in governance and elections (thereby ensuring self-governance as well).''American Communications Association v. Douds'', 339 U.S. 382, 434. Jackson agreed with the majority that the Act did not infringe free speech, but rather merely withdrew the protection of the NLRA from unions which exercised their transparent choice to elect Communists as leaders. Jackson saw the chilling effect on free speech to be incidental:
I suppose no one likes to be compelled to exonerate himself from connections he has never acquired. I have sometimes wondered why I must file papers showing I did not steal my car before I can get a license for it. But experience shows there are thieves among automobile drivers, and that there are Communists among labor leaders. The public welfare, in identifying both, outweighs any affront to individual dignity.
However, did Congress have the "power to proscribe any opinion or belief which has not manifested itself in any overt act"? That raised much more serious constitutional questions, Jackson said. He agreed that "The law sometimes does inquire as to mental state, but only, so far as I recall, when it is incidental to, and determines the quality of, some overt act in question."''American Communications Association v. Douds'', 339 U.S. 382, 437. Citing ''
Cramer v. United States ''Cramer v. United States'', 325 U.S. 1 (1945), was a case in which the Supreme Court of the United States reviewed the conviction of Anthony Cramer, a German-born naturalized citizen, for treason. Background Anthony Cramer, a German-born mec ...
'', 325 U.S. 1 (1945), Jackson observed that the Constitution barred punishment even of the very serious crime of treason unless there was some overt act. But under the majority's decision, Jackson said, "since Congress has never outlawed the political strike itself, the Court must be holding that Congress may root out mere ideas which, even if acted upon, would not result in crime." That was anathema to the Constitution. Agreeing that the Bill of Rights was not a suicide pact (as the majority had pointed out), Jackson nonetheless concluded that Congress had narrower, just as effective means of preventing the violent overthrow of the government than attempting to regulate thought. "I think that, under our system, it is time enough for the law to lay hold of the citizen when he acts illegally, or in some rare circumstances when his thoughts are given illegal utterance. I think we must let his mind alone." Jackson would have upheld the power of Congress to require disclosure of past acts or membership in the Communist Party, but overturned any parts of the Act that called for a disclosure of belief.


Dissent

Associate Justice
Hugo Black Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from Alabama from 1927 to 1937 and as an associate justice of the U.S. Supreme Court from 1937 to 1971. A ...
dissented. The First Amendment does not allow the government to regulate beliefs, Black asserted, and yet the majority admitted that this is exactly what Section 9(h) does.''American Communications Association v. Douds'', 339 U.S. 382, 446. Despite the majority's lengthy citation of cases, Black said, "No case cited by the Court provides the least vestige of support for thus holding that the Commerce Clause restricts the right to think." Black found that Section 9(h) did indeed impose a "test oath" on union leaders, and the Constitution explicitly barred such oaths. He rejected the majority's claim that the First Amendment was not offended since only a small number of people were affected. The very nature of "the First Amendment is its protection of each member of the smallest and most unorthodox minority." Furthermore, Black said, the majority's decision does not prevent the government from "barring Communists and their suspected sympathizers from election to political office, mere membership in unions, and, in fact, from getting or holding any jobs whereby they could earn a living."''American Communications Association v. Douds'', 339 U.S. 382, 449. He also found offensive the majority's belief that the Supreme Court exists to protect individual liberty. That claim "springs from the assumption that individual mental freedom can be constitutionally abridged whenever any majority of this Court finds a satisfactory legislative reason. Never before has this Court held that the Government could for any reason attaint persons for their political beliefs or affiliations. It does so today." That Congress had concluded from testimony that the Communist Party was a threat to national security was irrelevant, he said, for Democrats could testify the same thing about Republicans and thus ban Republicans from union office just as effectively. Such reasoning was offensive to the idea of constitutionally protected liberties, Black said:
Under today's opinion, Congress could validly bar all members of these parties from officership in unions or industrial corporations; the only showing required would be testimony that some members in such positions had, by attempts to further their party's purposes, unjustifiably fostered industrial strife which hampered interstate commerce.
Nor was Justice Jackson's claim that the Communist Party was foreign-controlled a valid reason for imposing test oaths. Test oaths were imposed in 16th century England because Protestant rulers feared papal control of their Roman Catholic subjects, Black noted. Even Thomas Jefferson was once accused of having more loyalty to France than the United States.''American Communications Association v. Douds'', 339 U.S. 382, 451. The Constitution expressly barred test oaths because of injustices such as these, Black said. Black also held that "Guilt should not be imputed solely from association or affiliation with political parties or any other organization, however much we abhor the ideas which they advocate." Addressing the majority's "suicide pact" idea, Black asserted that the First Amendment's tolerance of anti-democratic ideas was what protected the nation from disaster: "...the postulate of the First Amendment is that our free institutions can be maintained without proscribing or penalizing political belief, speech, press, assembly, or party affiliation. This is a far bolder philosophy than despotic rulers can afford to follow. It is the heart of the system on which our freedom depends." Citing ''
De Jonge v. Oregon ''De Jonge v. Oregon'', 299 U.S. 353 (1937), was a case in which the Supreme Court of the United States held that the Fourteenth Amendment to the United States Constitution, Fourteenth Amendment's due process clause applies freedom of assembly Inco ...
'', 299 U.S. 353 (1937), Black noted that a unanimous Court had already struck down laws which banned citizens from attending Communist Party meetings. It should strike down the relevant portions of the Taft-Hartley Act as well, he concluded.


Assessment

The penalties imposed on the ACA by Section 9(h) crippled the union. In May 1949, the Congress of Industrial Organizations ordered its member unions to have their leaders sign the anti-communist oaths or risk expulsion. At its annual convention in early November 1949, the CIO found the ACA "guilty" of not filing the required oaths and ordered it expelled. Expulsion occurred in June 1950. But lacking the protection of the NLRA and constantly fending off raids from affiliates of the CIO and the
American Federation of Labor The American Federation of Labor (A.F. of L.) was a national federation of labor unions in the United States that continues today as the AFL-CIO. It was founded in Columbus, Ohio, in 1886 by an alliance of craft unions eager to provide mutu ...
(affiliates whose leaders were eager to sign the oath), the ACA shrank rapidly.Estey, ''The Unions: Structure, Development, and Management,'' 1981, p. 34. Several of its divisions (including the old ARTA department) had disaffiliated and the union shrank to fewer than 2,000 members. It merged with the Teamsters in 1966. ''American Communications Association v. Douds'' was the first important test of loyalty oaths in the U.S. Supreme Court.Walker, ''In Defense of American Liberties: A History of the ACLU,'' 1999, p. 189. A year later, the Court relied heavily on ''Douds oath-as-predictor-of-future-action rationale in upholding a local government loyalty test in ''
Garner v. Board of Public Works ''Garner v. Board of Public Works'', 341 U.S. 716 (1951), is a ruling by the United States Supreme Court which held that a municipal loyalty oath which required an oath and affidavit about one's beliefs and actions for the previous five years and ...
'', 341 U.S. 716 (1951). The divided court in ''Douds'' anticipated the difficulty the Supreme Court would have in the coming years, during which time it usually upheld loyalty oaths but found no clear test or rule for doing so. The case was also the first time the Court applied a balancing test to indirect restrictions on free speech, a test the Court would consistently apply in many similar cases in the future. But the balancing test itself has been criticized as offering little guidance to future courts, not enough protection to First Amendment rights, and too much deference to the legislature. The reasoning by the majority in ''American Communications Association v. Douds'' has not been well-received by legal scholars. One historian characterized the decision as combining "guilt by association" with the discredited " bad tendency test". One legal scholar has called Vinson's heavy reliance on the Commerce Clause as "implausible". ''Douds'' also seems to have got some facts wrong: The political strikes Vinson relied on for examples in the case were not Communist-led but rather routine labor conflicts.Wiecek, ''History of the Supreme Court of the United States...,'' 2006, p. 548. The majority (unwittingly or not) believed in a distinctly American myth about a monolithic Communist Party controlled from overseas, endowed with the ability to deceive American workers, and capable of bringing the nation to its knees through the use of political strikes. Vinson's balancing test had a decidedly pro-government bias, and the decision appeared to undermine a decade's worth of First Amendment decisions. Vinson's claim that the Taft-Hartley Act did not proscribe belief has been called "sophistry." And the majority's claim that any flaws in its approach can be easily rectified by appealing to the Supreme Court was not only scoffed at by Justice Black but has also been sharply criticized by legal scholars. (To be fair, some legal scholars disagree, and believe the Court has done an excellent job of protecting First Amendment rights.) ''Douds'' has also been criticized for undermining the First Amendment right to freedom of association. This right was also enshrined in the First Amendment. In 1945, the Court had declared in ''
Thomas v. Collins Thomas may refer to: People * List of people with given name Thomas * Thomas (name) * Thomas (surname) * Saint Thomas (disambiguation) * Thomas Aquinas (1225–1274) Italian Dominican friar, philosopher, and Doctor of the Church * Thomas the Ap ...
'', 323 U.S. 516 (1945) that freedom of association held a "preferred place" in the pantheon of constitutional values.Inazu, "The Strange Origins of the Constitutional Right of Association," ''Tennessee Law Review,'' Spring 2010, p. 495. Three years later, in ''
United States v. Congress of Industrial Organizations ''United States v. Congress of Industrial Organizations'', 335 U.S. 106 (1948), is a US labor law decision by the United States Supreme Court, which held that a labor union's publication of a statement that advocated for its members to vote for ...
'', 335 U.S. 106 (1948) Justice Rutledge had concluded that, when confronted with the freedom of association, " egislative/nowiki> judgment does not bear the same weight and is not entitled to the same presumption of validity, when the legislation on its face or in specific application restricts the rights of conscience, expression and assembly protected by the Amendment..." Yet, in ''Douds'', the Court announced it was going to show great deference to legislative determinations regarding the danger communists posed. Nonetheless, ''American Communications Association v. Douds'' should not be seen as an anomalous decision in the Supreme Court's First Amendment jurisprudence. One noted legal historian has observed that it is but one of many "bad tendency test" cases in a series of decisions between 1919 and 1956. ''American Communications Association v. Douds'' is also important because it is part of the Court's evolving jurisprudence on bills of attainder. It stands firmly in the Court's bill of attainder jurisprudence established by Justice Frankfurter in his dissent in ''
United States v. Lovett ''United States v. Lovett'', 328 U.S. 303 (1946), was a United States Supreme Court case in which the Court held that Congress may not forbid the payment of a salary to a specific individual, as it would constitute an unconstitutional bill of atta ...
'', 328 U.S. 303 (1946), thereafter adopted by a majority of the Court."Beyond Process: A Substantive Rationale for the Bill of Attainder Clause," ''Virginia Law Review,'' April 1984, p. 484. Frankfurter and a majority of the Court believed that the framers of the Constitution were not concerned as much with unfairness as they were with specification of the offense, the legislative (rather than judicial) determination of guilt, and retribution for past acts. ''Douds'' stands firmly in this analysis, which found favor with the Court until 1965."Beyond Process: A Substantive Rationale for the Bill of Attainder Clause," ''Virginia Law Review,'' April 1984, p. 485. It is no surprise, then, that the Supreme Court refused to declare Section 9(h) a bill of attainder, because it prohibited future rather than past acts.Welsh, "The Bill of Attainder Clause: An Unqualified Guarantee of Process," ''Brooklyn Law Review,'' Fall 1983, p. 97. The ability to "escape" the penalty (e.g., renounce membership in the Communist Party and take the oath) also negated any conclusion that Section 9(h) was a bill of attainder. In 1965, however, the Supreme Court held, 5-to-4, that Section 504 of the Taft-Hartley Act ''was'' a bill of attainder in '' United States v. Brown'', 381 U.S. 437 (1965). Section 504 made it an actual crime for any person who was or had been a member of the Communist Party to serve as an officer in a labor union. The Court overturned Section 504 because past behavior was being punished. But the Court went further, and said that singling out members of the Communist Party for punishment also invalidated Section 504 as a bill of attainder. How could the Court reconcile this with its analysis in ''Douds'', where it had not held such specificity to invalidate the law? The ''Brown'' Court said that general legislation which required regulatory
rulemaking In administrative law, rulemaking is the process that executive and independent agencies use to create, or ''promulgate'', regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more deta ...
did not specify individuals well enough to make the law a bill of attainder. That regulatory action was needed under Section 9(h) but not under Section 504 saved Section 9(h). The Court implied that its Equal Protection analysis would be applied in cases where punishment was meted out under regulatory procedures, and that due process and equal protection would guarantee rights in these situations. ''Douds'' was difficult to reconcile with ''Brown'' in another way, too. ''Douds'' had focused heavily on the fact that the Taft-Hartley Act's restrictions were intended to prevent future, not past, actions. This was critical to saving Section 9(h). But in ''Brown,'' the Court held that "Punishment serves several purposes; retributive, rehabilitative, deterrent—and preventive", establishing that a law can be a bill of attainder even it is preventive. It is not clear whether ''Douds'' remains good case law. The Supreme Court distinguished the case but declined to overrule ''Douds'' in ''
Dennis v. United States ''Dennis v. United States'', 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the U ...
'', 341 U.S. 494 (1951). In 1965, in ''United States v. Brown'', 381 U.S. 437 (1965), the Supreme Court essentially overturned ''Douds'' by holding that the Taft-Hartley Act's oath constituted a bill of attainder, but did not formally do so. Two years later, in ''
United States v. Robel ''United States v. Robel'', 389 U.S. 258 (1967), was a case heard by the Supreme Court of the United States. The court ruled that the United States government cannot deprive the people of constitutional rights - in this case, freedom of associat ...
'', 389 U.S. 258 (1967), the Court specifically declined to apply a balancing test to a law prohibiting members of the Communist Party from holding jobs in the defense industry.Kearney, "Private Citizens in Foreign Affairs: A Constitutional Analysis," ''Emory Law Journal,'' Winter 1987, p. 330. Although the law was based on the same rationale as Taft-Hartley (that membership in the Communist Party was a sure indication of future action), the Supreme Court said this was too heavy an infringement on the individual's First Amendment rights. Instead, the Court seemed to suggest a new, two-part test: Whether the governmental interests advanced are valid, and whether the statute is narrowly drawn to infringe on First Amendment rights in the most narrow way. The Court returned to the balancing test in ''
Brandenberg v. Ohio ''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that spe ...
'', 395 U.S. 444 (1969), but this time concluded that prohibiting mere advocacy of violence was too heavy a burden on the First Amendment. Such advocacy must produce imminent action for the speech to be punishable, the Court held.Kearney, "Private Citizens in Foreign Affairs: A Constitutional Analysis," ''Emory Law Journal,'' Winter 1987, p. 327.


See also

*
List of United States Supreme Court cases involving the First Amendment This is a list of cases that appeared before the Supreme Court of the United States involving the First Amendment to the United States Constitution. The establishment of religion Blue laws * '' McGowan v. Maryland'' (1961) * ''Braunfeld v. B ...
* List of United States Supreme Court cases, volume 339


Footnotes


Bibliography

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Washington, D.C.: Beard Books, 1993. *Emerson, Thomas Irwin. ''The System of Freedom of Expression.'' New York: Random House, 1970. *Emerson, Thomas I.; Haber, David; and Dorsen, Norman. ''Political and Civil Rights in the United States.'' 3d ed. Boston: Little, Brown, 1967. *Estey, Marten. ''The Unions: Structure, Development, and Management.'' New York: Houghton Mifflin Harcourt, 1981. *"Final Court Test on Taft Bill Seen." ''New York Times.'' June 30, 1948. *Frankel, Benjamin. ''History in Dispute: The Red Scare After 1945.'' Detroit: St. James Press, 2000. *"High Court Will Rule on Two Cases Involving Taft Act Oath and Eisler." ''New York Times.'' November 9, 1948. *Inazu, John D. "The Strange Origins of the Constitutional Right of Association." ''Tennessee Law Review.'' 77:485 (Spring 2010). *"Justice Wiley Rutledge Dies of Brain Hemorrhage at 55." ''New York Times.'' September 11, 1949. *Kearney, Kevin M. "Private Citizens in Foreign Affairs: A Constitutional Analysis." ''Emory Law Journal.'' 36:285 (Winter 1987). *Loftus, Joseph A. "CIO Tells Leftists to Obey or Resign." ''New York Times.'' May 20, 1949. *Loftus, Joseph A. "High Court Delays Red Clause Ruling." ''New York Times.'' January 14, 1949. *Lowitt, Richard. ''Interpreting Twentieth-Century America: A Reader.'' New York: Crowell, 1973. *May-Stewart, Estelle. ''Handbook of American Trade-Unions: 1936 Edition.'' Washington, D.C.: Bureau of Labor Statistics, 1936. *"Minton Is Confirmed For Court, 48 to 16." '' Associated Press.'' October 5, 1949. *"Minton Sworn In As Supreme Court Justice." ''New York Times.'' October 13, 1949. *Nagel, Robert F. "How Useful Is Judicial Review In Free Speech Cases?" ''Cornell Law Review.'' 69:302 (January 1984). *Newman, Roger K. ''The Yale Biographical Dictionary of American Law.'' New Haven, Conn.: Yale University Press, 2009. *Nimmer, Melville B. "The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy." 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Berkeley, Calif.: University of California Press, 1975. *"Truman Sees Clark Sworn in by Vinson at the White House." ''New York Times.'' August 25, 1949. *"Two More Unions Expelled by C.I.O." ''New York Times.'' June 16, 1950. *Walker, Samuel. ''In Defense of American Liberties: A History of the ACLU.'' Carbondale, Ill.: Southern Illinois University Press, 1999. *Welsh, Jane. "The Bill of Attainder Clause: An Unqualified Guarantee of Process." ''Brooklyn Law Review.'' 50:77 (Fall 1983). *White, William S. "Truman Plea Fails." ''New York Times.'' June 24, 1947. *Wiecek, William M. ''History of the Supreme Court of the United States: The Birth of the Modern Constitution: The United States Supreme Court, 1941-1953.'' New York: Macmillan, 2006. *Wiecek, William M. "The Legal Foundations of Domestic Anticommunism: The Background of ''Dennis v. United States''." ''Supreme Court Review.'' 2001:375 (2001). *Wood, Lewis. "Minton Named to High Court." ''New York Times.'' September 16, 1949.


External links

* {{US1stAmendment, speech, state=expanded 1950 in United States case law United States Supreme Court cases United States Supreme Court cases of the Vinson Court United States Free Speech Clause case law Anti-communism in the United States