American Communications Association v. Douds/Dissent Black

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Dissenting Opinion

United States Supreme Court

339 U.S. 382

American Communications Association  v.  Douds

 Argued: Oct. 10, 11, 1949. --- Decided: may 8, 1950

Mr. Justice BLACK, dissenting.

We have said that 'Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind.' [1] But people can be, and in less democratic countries have been, made to suffer for their admitted or conjectured thoughts. Blackstone recalls that Dionysius is 'recorded to have executed a subject barely for dreaming that he had killed him; which was held sufficient proof that he had thought thereof in his waking hours.' [2] Such a result, while too barbaric to be tolerated in our nation, is not illogical if a government can tamper in the realm of thought and penalize 'belief' on the ground that it might lead to illegal conduct. Individual freedom and governmental thought-probing cannot live together. As the Court admits even today, under the First Amendment 'Beliefs are inviolate.'

Today's decision rejects that fundamental principle. The Court admits, as it must, that the 'proscriptions' of § 9(h) of the National Labor Relations Act as amended by the Taft-Hartley Act rest on 'beliefs and political affiliations,' and that 'Congress has undeniably discouraged the lawful exercise of political freedoms' which are 'protected by the First Amendment.' These inescapable facts should compel a holding that § 9(h) conflicts with the First Amendment.

Crucial to the Court's contrary holding is the premise that congressional power to regulate trade and traffic includes power to proscribe 'beliefs and political affiliations.' No case cited by the Court provides the least vestige of support for thus holding that the Commerce Clause restricts the right to think. On the contrary, the First Amendment was added after adoption of the Constitution for the express purpose of barring Congress from using previously granted powers to abridge belief or its expression. Freedom to think is inevitably abridged when beliefs are penalized by imposition of civil disabilities.

Since § 9(h) was passed to exclude certain beliefs from one arena of the national economy, it was quite natural to utilize the test oath as a weapon. History attests the efficacy of that instrument for inflicting penalties and disabilities on obnoxious minorities. It was one of the major devices used against the Huguenots in France, and against 'heretics' during the Spanish Inquisition. It helped English rulers identify and outlaw Catholics, Quakers, Baptists, and Congregationalists-groups considered dangerous for political as well as religious reasons. [3] And wherever the test oath was in vogue, spies and informers found rewards far more tempting than truth. [4] Painful awareness of the evils of thought espionage made such oaths 'an abomination to the founders of this nation,' In re Summers, 325 U.S. 561, 576, 65 S.Ct. 1307, 1315, 89 L.Ed. 1795, dissenting opinion. Whether religious, political, or both, test oaths are implacable foes of free thought. By approving their imposition, this Court has injected compromise into a field where the First Amendment forbids compromise.

The Court assures us that today's encroachment on liberty is just a small one, that this particular statutory provision 'touches only a relative, a handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint.' But not the least of the virtues of the First Amendment is its protection of each member of the smallest and most unorthodox minority. Centuries of experience testify that laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which, though supported by revered Americans as essential to democracy, has been adopted by that group for its own purposes.

Under such circumstances, restrictions imposed on proscribed groups are seldom static, [5] even though the rate of expansion may not move in geometric progression from discrimination to arm-band to ghetto and worse. Thus I cannot regard the Court's holding as one which merely bars Communists from holding union office and nothing more. For its reasoning would apply just as forcibly to statutes 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.

The Court finds comfort in its assurance that we need not fear too much legislative restriction of political belief or association 'while this Court sits.' That expression, while felicitous, has no validity in this particular constitutional field. For it 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.

Today the 'political affiliation' happens to be the Communist Party: testimony of an ex-Communist that some Communist union officers had called 'political strikes' is held sufficient to uphold a law coercing union members not to elect any Communist as an officer. Under this reasoning, affiliations with other political parties could be proscribed just as validly. Of course there is no practical possibility that either major political party would turn this weapon on the other, even though members of one party were accused of 'political lockouts' a few years ago and members of the other are now charged with fostering a 'welfare state' alien to our system. But with minor parties the possibility is not wholly fanciful. One, for instance, advocates socialism; [6] another allegedly follows the Communist 'line'; still another is repeatedly charged with a desire and purpose to deprive Negroes of equal job opportunities. 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.

It is indicated, although the opinion is not thus limited and is based on threats to commerce rather than to national security, that members of the Communist Party or its 'affiliates' can be individually attainted without danger to others because there is some evidence that as a group they act in obedience to the commands of a foreign power. This was the precise reason given in Sixteenth-Century England for attainting all Catholics unless they subscribed to test oaths wholly incompatible with their religion. [7] Yet in the hour of crisis, an overwhelming majority of the English Catholics thus persecuted rallied loyally to defend their homeland against Spain and its Catholic troops. [8] And in our own country Jefferson and his followers were earnestly accused of subversive allgiance to France. [9] At the time, imposition of civil disability on all members of his political party must have seemed at least as desirable as does § 9(h) today. For at stake, so many believed, was the survival of a newly-founded nation, not merely a few potential interruptions of commerce by strikes 'political' rather than economic in origin.

These experiences underline the wisdom of the basic constitutional precept that penalties should be imposed only for a person's own conduct, not for his beliefs or for the conduct of others with whom he may associate. 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. Schneiderman v. United States, 320 U.S. 118, 136-139, 63 S.Ct. 1333, 1342, 1343, 87 L.Ed. 1796. [10] Like anyone else, individual Communists who commit overt acts in violation of valid laws can and should be punished. But 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. [11] 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.

Fears of alien ideologies have frequently agitated the nation and inspired legislation aimed at suppressing advocacy of those ideologies. [12] At such times the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights. Yet then, of all times, should this Court adhere most closely to the course they mark. This was done in De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278, where the Court struck down a state statute making it a crime to participate in a meeting conducted by Communists. It had been stipulated that the Communist Party advocated violent overthrow of the Government. Speaking through Chief Justice Hughes, a unanimous Court calmly announced time-honored principles that should govern this Court today: 'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutinal government.'


  1. Dissenting opinion in Jones v. Opelika, 316 U.S. 584, 618, 62 S.Ct. 1231, 1249, 86 L.Ed. 1691, 141 A.L.R. 514, adopted as the Court's opinion in 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290. See also Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352.
  2. 4 Blackstone, Commentaries 79 (6th ed. Dublin 1775).
  3. The increasing restrictions and punishment imposed on these groups are shown by the following examples. In 1558 Parliment prescribed an oath, which no conscientious Catholic could take, for all judges, ecclesiastical ministers, those receiving pay from the Queen, and those taking university degrees; four years later the oath was extended to schoolmasters, lawyers, sheriffs, and court officers. In 1593 all Protestants were required to attend Anglican services and forbidden to hold nonconformist religious meetings. And Catholics convicted of failing to attend Anglican services regularly were restricted to within five miles of their dwellings. In 1609 such Catholics were barred even from serving as executors, guardians, physicians, or apothecaries, and their right to prosecute suits in court was practically abolished; it was also made treason to be converted or convert anyone else to Catholicism. Between 1661 and 1677, Parliament outlawed attendance at any non-Anglican religious services, and required those holding civil, military, or municipal office to subscribe to an oath which effectively barred Catholics and non-Anglican Protestants. Punishment for violations of these and the many similar statutes ranged from fines and imprisonment to exile and death. See, e.g., 1 Eliz. c. 1; 5 Eliz. c. 1; 35 Eliz. cc. 1, 2; 3 Jac. I cc. 4, 5; 7 Jac. I cc. 2, 6; 13 Car. II Stat. 2, c. 1; 13 & 14 Car. II cc. 1, 4, 33; 22 Car. II c. 1; 25 Car. II c. 2; 30 Car. II Stat. 2.
  4. Under the Stuart monarchs in England it was standard practice to give an informer one-third of the fines collected from his victim. E.g., 3 Jac. I c. 5. And a few were sufficiently daring and unscrupulous to obtain the more satisfying reward of fame. A notorious example took place in England during the reign of Charles II:
  5. See note 3 supra. And see the comment on such legislation in II Hallam, The Constitutional History of England 473 (London, 1829): 'It is the natural consequence of restrictive laws to aggravate the disaffection which has served as their pretext; and thus to create a necessity for a legislature that will not retrace its steps, to pass still onward in the course of severity.'
  6. Proscriptions based on affiliation with the Socialist Party are not unprecedented. In 1920 the New York Assembly, upon allegations that the party was disloyal, suspended five legislators elected on the Socialist ticket. The vigorous protests of a Bar Association committee headed by Charles Evans Hughes, later Chief Justice of this Court, were of no avail. See John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592, 593.
  7. 35 Eliz. c. 2, for example, was aimed at 'sundry wicked and seditious Persons, who terming themselves Catholicks, and being indeed Spies and Intelligencers, * * * and hiding their most destable and devilish Purposes under a false Pretext of Religion and Conscience, do secretly wander and shift from Place to Place within this Realm, to corrupt and seduce her Majesty's Subjects, and to stir them to Sedition and Rebellion.'
  8. As is evidenced by the statute quoted in note 7 supra, the test oaths, the drastic restrictions and the punishment imposed on Catholics were 'based on the assumption that all Catholics were politically hostile to the Queen, and were at one with Allen and the Jesuits in seeking her deposition and the conquest of the country by Spain. The patriotic action of the Catholics at home through the crisis of the Spanish Armada proved the weakness of this assumption. In the hour of peril the English Catholics placed loyalty to their Queen and country before all other considerations. * * * The injustice of imputing treachery to the whole Catholic population was proved beyond question.' 3 Cambridge Modern History 351.
  9. Castigating Jefferson and his followers as 'jacobins,' a 'French faction' guilty of 'subversion,' Fisher Ames warned: '(T)he jacobins have at last made their own discipline perfect: they are trained, officered, regimented and formed to subordination, in a manner that our militia have never yet equalled. * * * (A)nd it is as certain as any future event can be, that they will take arms against the laws as soon as they dare. * * *' Ames, Laocoon, printed in Works of Fisher Ames 94, 101, 106 (Boston, 1809).
  10. And see, e.g., John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592. That article quotes the following from a Memorial submitted to the New York Assembly by a special committee of the Bar Association of the City of New York protesting the suspension of five Socialist legislators: 'it is of the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or to mere intent in the absence of overt acts. * * *' O'Brian points out that this Memorial was 'largely written by' Charles Evans Hughes. Id. at 594.
  11. 'If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand, undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government cannot be strong; that this Government is not strong enough. But would the honest patriot, in the full tide of successful experiment abandon a Government which has so far kept us free and firm, on the theoretic and visionary fear that this Government, the world's best hope, may by possibility want energy to preserve itself?' Thomas Jefferson, First Inaugural Address, March 4, 1801. This address, along with other writings on freedoms guaranteed by the First Amendment, is reprinted in Jones, Primer of Intellectual Freedom 142 (Harvard University Press, 1949).
  12. For discussion of early American models, the Alien and Sedition Acts, see Bowers, Jefferson and Hamilton, 1925, c. XVI, 'Hysterics,' and c. XVII, 'The Reign of Terror'; 1 Morison, Life of Otis, c. VIII, 'A System of Terror.'

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).

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