American Communications Association v. Douds/Dissent Black
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.'  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.'  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.  And wherever the test oath was in vogue, spies and informers found rewards far more tempting than truth.  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,  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;  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.  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.  And in our own country Jefferson and his followers were earnestly accused of subversive allgiance to France.  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.  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.  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.  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.' 

Notes