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an integral part of this basic constitutional freedom.’’ 557 Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes 558 has passed on numerous state restrictions that have an impact upon the ability of individuals or groups to join one or the other of the major parties or to form and join an independent political party to further political, social and economic goals. 559 Of course, the right is not absolute. The Court has recognized that there must be substantial state regulation of the election process which necessarily will work a diminution of the individual’s right to vote and to join with others for political purposes. The validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the governmental interests and the means of implementing those inter- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00108 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1121 560 Williams v. Rhodes, 393 U.S. 23, 30–31 (1968); Bullock v. Carter, 405 U.S. 134, 142–143 (1972); Storer v. Brown, 415 U.S. 724, 730 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979). 561 Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974), the Court found ‘‘compelling’’ the state interest in achieving stability through promotion of the two-party system, and upheld a bar on any independent candidate who had been affiliated with any other party within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31–32 (1968) (casting doubt on state interest in promoting Republican and Democratic voters). The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller, 410 U.S. 752 (1973), but not to justify requiring one to forgo one election before changing parties. Kusper v. Pontikes, 414 U.S. 51 (1973). See also Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973) (efficient operation of government justifies limits on employee political activity); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (permitting political party to designate replacement in office vacated by elected incumbent of that party serves valid governmental interests). Storer v. Brown was distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983), holding invalid a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November ballot; state interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters. See also Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state interests are insubstantial in imposing ‘‘closed primary’’ under which a political party is prohibited from allowing independents to vote in its primaries). 562 Elrod v. Burns, 427 U.S. 347 (1976). The limited concurrence of Justices Stewart and Blackmun provided the qualification for an otherwise expansive plurality opinion. Id. at 374. 563 Branti v. Finkel, 445 U.S. 507, 518 (1980). On the same page, the Court refers to a position in which ‘‘party membership was essential to a discharge of the employee’s governmental responsibilities.’’ (emphasis supplied). A great gulf separates ‘‘appropriate’’ from ‘‘essential,’’ so that much depends on whether the Court was using the two words interchangeably or whether the stronger word was meant to characterize the position noted and not to particularize the standard. ests. 560 Many restrictions upon political association have survived this sometimes exacting standard of review, in large measure upon the basis of some of the governmental interests found compelling. 561 A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a nonpolicy-making, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations, 562 the Court subsequently held that ‘‘the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.’’ 563 The concept of policymaking, confidential positions was abandoned, the Court noting that some such positions would nonetheless be protected whereas some people filling positions not reached by the VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00109 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1122 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 564 Justice Powell’s dissents in both cases contain lengthy treatments of and defenses of the patronage system as a glue strengthening necessary political parties. 445 U.S. at 520. 565 497 U.S. 62 (1990). Rutan was a 5–4 decision, with Justice Brennan writing the Court’s opinion. The four dissenters indicated, in an opinion by Justice Scalia, that they would not only rule differently in Rutan, but that they would also overrule Elrod and Branti. 566 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (allegation that city removed petitioner’s company from list of those offered towing business on a rotating basis, in retaliation for petitioner’s refusal to contribute to mayor’s campaign, and for his support of mayor’s opponent, states a cause of action under the First Amendment). See also Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996) (termination or non-renewal of a public contract in retaliation for the contractor’s speech on a matter of public concern can violate the First Amendment). 567 Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981). See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party rules, not state law, governed which delegation from State would be seated at national convention; national party had protected associational right to sit delegates it chose). 568 Buckley v. Valeo, 424 U.S. 1, 60–84 (1976). description would not be. 564 The opinion of the Court makes difficult an evaluation of the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois 565 held that restrictions on patronage apply not only to dismissal or its substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low-level public employees. In 1996 the Court extended Elrod and Branti to protect independent government contractors. 566 The protected right of association extends as well to coverage of party principles, enabling a political party to assert against some state regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary election, while legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in an election limited to those voters who affiliated with the party. 567 Provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political organizations, including the maintenance by such organizations of records of everyone contributing more than $10 and the reporting by individuals and groups that are not candidates or political committees who contribute or expend more than $100 a year for the purpose of advocating the election or defeat of an identified candidate, were sustained. 568 ‘‘[C]ompelled disclosure, in VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00110 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1123 569 424 U.S. at 64 (footnote citations omitted). 570 424 U.S. at 66-68. 571 424 U.S. at 68-74. Such a showing, based on past governmental and private hostility and harassment, was made in Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982). 572 424 U.S. at 74-84. 573 The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537, 29 U.S.C. §§ 411–413, enacted a bill of rights for union members, designed to protect, inter alia, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects. 574 § 8(a)(3) of the Labor-Management Relations Act of 1947, 61 Stat. 140, 29 U.S.C. § 158(a)(3), permits the negotiation of union shop but not closed shop agreements, which, however, may be outlawed by contrary state laws. § 14(b), 61 Stat. itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. . . . We long have recognized the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. . . . We have required that the subordinating interests of the State must survive exacting scrutiny. We have also insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.’’ 569 The governmental interests effectuated by these requirements – providing the electorate with information, deterring corruption and the appearance of corruption, and gathering data necessary to detect violations—were found to be of sufficient magnitude to be validated even though they might incidentally deter some persons from contributing. 570 A claim that contributions to minor parties and independents should have a blanket exemption from disclosure was rejected inasmuch as an injury was highly speculative; but any such party making a showing of a reasonable probability that compelled disclosure of contributors’ names would subject them to threats or reprisals could obtain an exemption from the courts. 571 The Buckley Court also narrowly construed the requirement of reporting independent contributions and expenditures in order to avoid constitutional problems. 572 Conflict Between Organization and Members.—It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy. 573 But at least in some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may well be constitutional limitations. Disputes implicating such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act. 574 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00111 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1124 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 151, 29 U.S.C. § 164(b). See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949). In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45 U.S.C. § 152, Eleventh; Railway Employees Dept. v. Hanson, 351 U.S. 225 (1956). 575 International Ass’n of Machinists v. Street, 367 U.S. 740 (1961). The quoted phrase is at 749. 576 367 U.S. at 775 (Justice Douglas concurring), 780 (Justice Black dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the same day, a majority of the Court declined, in Lathrop v. Donohue, 367 U.S. 820 (1961), to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an ‘‘integrated bar.’’ These issues were faced squarely in Keller v. State Bar of California, 496 U.S. 1 (1990). An integrated state bar may not, against a members’ wishes, devote compulsory dues to ideological or other political activities not ‘‘necessarily or reasonably related to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.’’ Id. at 14. 577 431 U.S. 209 (1977). That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Street, id. at 226–32, but Justice Powell found the distinction between public and private employment crucial. Id. at 244. Initially, the Court avoided constitutional issues in resolving a challenge by union shop employees to use of their dues money for political causes. Acknowledging ‘‘the utmost gravity’’ of the constitutional issues, the Court determined that Congress had intended that dues money obtained through union shop agreements should be used only to support collective bargaining and not in support of other causes. 575 Justices Black and Douglas, in separate opinions, would have held that Congress could not constitutionally provide for compulsory membership in an organization which could exact from members money which the organization would then spend on causes which the members opposed; Justices Frankfurter and Harlan, also reaching the constitutional issue, would have held that the First Amendment was not violated when government did not compel membership but merely permitted private parties to enter into such agreements and that in any event so long as members were free to espouse their own political views the use by a union of dues money to support political causes which some members opposed did not violate the First Amendment. 576 In Abood v. Detroit Bd. of Education, 577 the Court applied Hanson and Street to the public employment context. Recognizing that employee associational rights were clearly restricted by any system of compelled support, because the employees had a right not to associate, not to support, the Court nonetheless found the governmental interests served by the agency shop provision—the promotion of labor peace and stability of employer-employee relations— to be of overriding importance and to justify the impact VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00112 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1125 578 431 U.S. at 217-23. The compelled support was through the agency shop device. Id. at 211, 217 n.10. Justice Powell, joined by Chief Justice Burger and Justice Blackmun, would have held that compelled support by public employees of unions violated their First Amendment rights. Id. at 244. For an argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792–95 (1978), and id. at 802, 812–21 (Justice White dissenting). 579 431 U.S. at 232-37. 580 431 U.S. at 237-42. On the other hand, nonmembers may be charged for such general union expenses as contributions to state and national affiliates, expenses of sending delegates to state and national union conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991). 581 Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435 (1984). 582 Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). 583 475 U.S. at 309. 584 Madison School Dist. v. WERC, 429 U.S. 167 (1977). upon employee freedom. 578 But a different balance was drawn when the Court considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collectivebargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs. 579 However, the remedy was not to restrain the union from making non-collective bargaining related expenditures but to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system whereby employees could object generally to such use of union funds and could obtain either a proportionate refund or reduction of future exactions. 580 Later, the Court further tightened the requirements. A proportionate refund is inadequate because ‘‘even then the union obtains an involuntary loan for purposes to which the employee objects;’’ 581 an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee. 582 Therefore, the union procedure must also ‘‘provide for a reasonably prompt decision by an impartial decisionmaker.’’ 583 On a related matter, the Court held that a labor relations body could not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer. 584 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00113 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1126 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 585 Ch. 74, 1 Stat. 596 (1798). 586 The cases included Schenck v. United States, 249 U.S. 47 (1919) (affirming conviction for attempting to disrupt conscription by circulation of leaflets bitterly condemning the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming conviction for attempting to create insubordination in armed forces based on one speech advocating socialism and opposition to war, and praising resistance to the draft); Abrams v. United States, 250 U.S. 616 (1919) (affirming convictions based on two leaflets, one of which attacked President Wilson as a coward and hypocrite for sending troops into Russia and the other of which urged workers not to produce materials to be used against their brothers). 587 The cases included Gitlow v. New York, 268 U.S. 652 (1925) (affirming conviction based on publication of ‘‘manifesto’’ calling for the furthering of the ‘‘class struggle’’ through mass strikes and other mass action); Whitney v. California, 274 U.S. 357 (1927) (affirming conviction based upon adherence to party which had platform rejecting parliamentary methods and urging a ‘‘revolutionary class struggle,’’ the adoption of which defendant had opposed). 588 See discussion under ‘‘Adoption and the Common Law Background,’’ and ‘‘Clear and Present Danger,’’ supra. See also Taylor v. Mississippi, 319 U.S. 583 (1943), setting aside convictions of three Jehovah’s Witnesses under a statute that prohibited teaching or advocacy intended to encourage violence, sabotage, or disloyalty to the government after the defendants had said that it was wrong for the President ‘‘to send our boys across in uniform to fight our enemies’’ and that boys were being killed ‘‘for no purpose at all.’’ The Court found no evil or sinister purpose, no advocacy of or incitement to subversive action, and no threat of clear and present danger to government. Maintenance of National Security and the First Amendment Preservation of the security of the Nation from its enemies, foreign and domestic, is the obligation of government and one of the foremost reasons for government to exist. Pursuit of this goal may lead government officials at times to trespass in areas protected by the guarantees of speech and press and may require the balancing away of rights which might be preserved inviolate at other times. The drawing of the line is committed, not exclusively but finally, to the Supreme Court. In this section, we consider a number of areas in which the necessity to draw lines has arisen. Punishment of Advocacy.—Criminal punishment for the advocacy of illegal or of merely unpopular goals and of ideas did not originate in the United States in the post-World War II concern with Communism. Enactment of and prosecutions under the Sedition Act of 1798 585 and prosecutions under the federal espionage laws 586 and state sedition and criminal syndicalism laws 587 in the 1920s and early 1930s have been alluded to earlier. 588 But it was in the 1950s and the 1960s that the Supreme Court confronted First Amendment concepts fully in determining the degree to which government could proceed against persons and organizations which it believed were plotting and conspiring both to advocate the overthrow of government and to accomplish that goal. VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00114 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1127 589 54 Stat. 670, 18 U.S.C. § 2385. 590 341 U.S. 494 (1951). 591 341 U.S. at 510. 592 341 U.S. at 509. 593 341 U.S. at 510-11. The Smith Act of 1940 589 made it a criminal offense for anyone to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises, or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association. No case involving prosecution under this law was reviewed by the Supreme Court until in Dennis v. United States 590 it considered the convictions of eleven Communist Party leaders on charges of conspiracy to violate the advocacy and organizing sections of the statute. Chief Justice Vinson’s plurality opinion for the Court applied a revised clear and present danger test 591 and concluded that the evil sought to be prevented was serious enough to justify suppression of speech. ‘‘If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase ‘clear and present danger’ of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.’’ 592 ‘‘The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score.’’ 593 Justice Frankfurter in concurrence developed a balancing test, which, however, he deferred to the congressional judgment in applying, concluding that ‘‘there is ample justification for a legislative VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00115 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1128 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 594 341 U.S. at 517, 542. 595 341 U.S. at 561, 572, 575. 596 341 U.S. at 579 (Justice Black dissenting), 581, 589 (Justice Douglas dissenting). 597 354 U.S. 298 (1957). 598 354 U.S. at 314, 315–16, 320, 324–25. judgment that the conspiracy now before us is a substantial threat to national order and security.’’ 594 Justice Jackson’s concurrence was based on his reading of the case as involving ‘‘a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy.’’ Here the Government was dealing with ‘‘permanently organized, well-financed, semi-secret, and highly disciplined organizations’’ plotting to overthrow the Government; under the First Amendment ‘‘it is not forbidden to put down force and violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose.’’ 595 Justices Black and Douglas dissented separately, the former viewing the Smith Act as an invalid prior restraint and calling for reversal of the convictions for lack of a clear and present danger, the latter applying the Holmes-Brandeis formula of clear and present danger to conclude that ‘‘[t]o believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible.’’ 596 In Yates v. United States, 597 the convictions of several secondstring Communist Party leaders were set aside, a number ordered acquitted, and others remanded for retrial. The decision was based upon construction of the statute and appraisal of the evidence rather than on First Amendment claims, although each prong of the ruling seems to have been informed with First Amendment considerations. Thus, Justice Harlan for the Court wrote that the trial judge had given faulty instructions to the jury in advising that

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