American Communications Ass'n v. Douds
In American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), the court, at page 400 of 339 U.S., at page 684 of 70 S.Ct., states the problem posed by that case as follows:
"In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by 9(h) the Taft-Hartley Act pose continuing threats to that public interest when in positions of union leadership. We must, therefore, undertake the `delicate and difficult task to weigh the circumstances and to appraise the subsbtantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.' Schneider v. State, 1939, 308 U.S. 147, 161 60 S.Ct. 146, 84 L.Ed. 155."
In discussing the extent to which the holding in Douds bears upon the present case it is essential that the dimensions of the restraint (both in that case and in ours) be examined.
In one respect the dimensions coincide: how far into the rights involved the restraint cuts.
The court in Douds, at page 402, 70 S.Ct. at page 686, notes:
"The statute does not prevent or punish by criminal sanctions the making of a speech, the affiliation with any organization, or the holding of any belief."
The restraint involved simply a loss of the right to hold union office - what the court refers to as "loss of position."
However, the court makes clear that lack of direct restraint upon Communist Party membership does not eliminate the First Amendment problem. At page 402, 70 S.Ct. at page 686 the court states:
"But as we have noted, the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect `discouragements' undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature."
That loss of position by virtue of Communist Party membership is not to be confused with the usual conflict-of-interest situation is pointed out by the court at pages 392-393, 70 S.Ct. at page 681:
"If no more were involved than possible loss of position, the foregoing would dispose of the case. But the more difficult problem here arises because, in drawing lines on the basis of beliefs and political affiliations, though it may be granted that the proscriptions of the statute bear a reasonable relation to the apprehended evil, congress has undeniably discouraged the lawful exercise of political freedoms as well. By exerting pressures on unions to deny office to Communists and others identified therein, 9(h) undoubtedly lessens the threat to interstate commerce, but it has the further necessary effect of discouraging the exercise of political rights protected by the First Amendment. Men who hold union offices often have little choice but to renounce Communism or give up their offices. Unions which wish to do so are discouraged from electing Communists to office. To the grave and difficult problem thus presented we must now turn our attention."
In a second dimension - the quality of the restraint - the restraint confronting us is larger than that in Douds. There the court notes, at page 389, 70 S.Ct. at page 679:
"The unions contend that the necessary effect of 9(h) is to make it impossible for persons who cannot sign the oath to be officers of labor unions."
This the court denies, stating at page 390, 70 S.Ct. at page 679:
"The statute does not, however, specifically forbid persons who do not sign the affidavit from holding positions of union leadership nor require their discharge from office. 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."