First - a little background before introducing the case observing its golden anniversary this week.
Criminal syndicalism advocates for unlawful means, including violence, to bring about industrial or political change. To counter this movement, and seemingly to avoid the potential violence and disruption it could cause, states passed statutes creating crimes for such advocacy. This, necessarily, hit First Amendment problems regarding freedom of speech and association. In Whitney v. California, 274 U.S. 357 (1927), the Supreme Court of the United States upheld a conviction under the California Criminal Syndicalism Act for a woman named Charlotte Whitney.
Ms. Whitney joined her local Socialist Party in 1919. She became a delegate to the Socialist Party convention in Chicago that same year. At the convention, the party divided into two factions – the “old wing Socialists” and the “radicals”. The Oakland group was part of the radicals. They split from the Socialists and joined the Communist Party during the convention. The Communist Party platform, to which Ms. Whitney and the radical group agreed, adopted as its purpose, “to create a unified revolutionary working class movements in America” which sought to organize workers to overthrow capitalist rule and create a working class government. The group named itself the Communist Labor Party of California.
Ms. Whitney understood the entire platform, but stated at her trial that she did not intend for the Communist Labor Party of California to be an instrument of terrorism or violence. There is no evidence that it was an instrument of terrorism or violence. Ms. Whitney was charged and convicted for being a member of the Communist Labor Party of California which itself advocated for revolutionary action, including violence.
The Supreme Court of the United States upheld the constitutionality of the California statute and her conviction in 1927. That case includes a brilliant concurrence by the incomparable Justice Brandeis. He actually took issue with the statute itself and pointed out the conflict with constitutional principles. He noted that the Framers, “valued liberty both as an end and as a means” Id., 274 U.S. at 375. He pointed out that the Framers knew that discouraging thought could not stand; that, “fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path to safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” Id.
He then gets to his point – it is lawful to suppress speech only where there is reasonable ground to fear that serious evil will result due to the speech at issue and that the danger must be imminent. He emphasized that advocacy – even of reprehensible things - falling short of incitement was protected speech. “The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state.” Id. at 378. While it sounds as though Justice Brandeis is dissenting, he is not. He is concurring in upholding the validity of the statute and the conviction not because of this imminent harm but because on its face, the statute satisfies constitutional muster and it was up to Ms. Whitney to challenge it as applied to her and her actions which she failed to do.
Whitney v. California stood as good law for 42 years when it was overturned in Brandenburg v. Ohio, 395 U.S. 444 (1969). That case reversed a conviction for a Klansman convicted under a similar Criminal Syndicalism statute. The statute averred essentially that advocating for violent means to effect political and economic change itself established a serious injury to the state and therefore warranted punishment. This, the Court ruled, violated the First and Fourteenth Amendments. It also overturned its own decision in Whitney v. CA. Here again, it is the concurrence that enlightens beyond measure.
This time it is Justice Douglas who rails against all past decisions and statutes that condemned thoughts, beliefs, ideas, and convictions. The concurrence echoes Justice Brandeis’s notion that the response to reprehensible speech is, indeed, more speech. Not silence. And certainly not conviction. It’s unfortunate that the defendant’s speech in the case at bar was the bigoted and horrific speech of a Klansman against both Blacks and Jews, but still – the speech alone must be protected.
That is the foundational background for the case that celebrates its golden anniversary; Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974) was decided 50 years ago this week. It is, in some ways, timely as today’s headlines since it involved blocking candidates of the Communist Party from having their names printed on the ballot for an upcoming election. The issue in the case was a loyalty oath which Indiana intended to impose on all candidates. Since the Communist Party had that pesky “hey we are kind of here to overthrow the American way of life and impose a whole different kind of government” clause, the state refused to allow for certain candidates to appear on the ballot without first taking a loyalty oath.
Here again it was freedom of speech that prevailed. Justice Brennan wrote for a unanimous court in finding the loyalty oath statute unconstitutional. He noted that while the administration of electoral process is left primarily to the States, they cannot, in this role, infringe upon basic constitutional principles. This was made eminently clear in Whitcomb as both the Democratic and Republican candidates were admitted to the ballot without first submitting the loyalty oath – as the concurrence notes, this was more easily disposed of as an equal protection case.
The Court stated that a candidate or party who advocates for violent overthrow of the government in the abstract is protected by the Constitution and therefore, so long as other requirements for the candidacy are met, must appear on the ballot.
While each of these cases uses the 14th Amendment as a shield, they do so in regard to section one and not section three. Section three, in fact, bars those who not only thought about and advocated for the overthrow of the government but, “who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Even prior to the anarchists of the turn of the last century and the idea of Communism or Socialism, or – in fact – the rise of the Klan, the Framers of the 14th Amendment were very clear that they were not seeking to bar candidates who thought differently or held different beliefs or ideas from the ballot or from office. The group they prohibited from power were those who took an oath as an officer to uphold the Constitution, violated that oath, and who engaged in insurrection or rebellion against the Constitution (or gave aid to those who engaged in insurrection or rebellion). Unlike the people who advocate or believe in overthrow of the government whether they be Communist or Klansman, any person falling into the category delineated in the Fourteenth Amendment itself must be barred from the ballot and from holding office.
Communist Party of California v. Whitcomb, supra, teaches that loyalty oaths themselves violate the Constitution. Therefore, it is likely permissible for a candidate to refuse a loyalty oath prior to his or her name appearing on the ballot. And, it confirms that thoughts of overturning the government by force or abhorrent ideas opposing democracy or advocacy for these kinds of nefarious actions cannot keep someone from the ballot. However, it, along with the prior cases do suggest that if anyone goes beyond the thought, beyond the idea, beyond the advocacy and chooses to engage in insurrection or rebellion or aid those who do, that they cannot stand behind the First Amendment shield as the Fourteenth Amendment sword parries for the touch.