Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
Since the late eighteenth century, federal and state governments have attempted to use legal methods, including statutory prohibition, legislative investigation, and criminal prosecution, to suppress what political majorities of the time deemed to be efforts to overthrow or undermine existing systems and policies of governance. The Supreme Court has seldom found such measures unconstitutional.
The Court’s encounters with antisubversive legislation have included some of its most significant First Amendment cases, such as *Schenck v. United States (1919) and *Abrams v. United States (1919), in which Justice Oliver Wendell *Holmes first articulated, then refined, the *clear and present danger test; *Gitlow v. New York (1925), which upheld a state *criminal syndicalism statute but which also began the process of incorporating *Bill of Rights guarantees as limitations on the states (see incorporation doctrine); *Dennis v. United States (1951), where the Court gave the clear and present danger test a speech-repressive interpretation based on the *bad-tendency doctrine of *common law; *Pennsylvania v. Nelson (1956), a rare instance of the Court striking down state antisubversive legislation, on grounds of federal preemption (see state sedition laws); and *Communist Party v. Subversive Activities Control Board (1961), which upheld the constitutionality of the federal Internal Security Act of 1950 (see mccarran act). The Dennis and Subversive Activities Control Board cases typify constants in the Court’s approach to antisubversive legislation: deference to legislative judgments about the existence of a subversive conspiracy, minimal rationality standards for review of the means chosen to suppress subversion, and a balancing of the rights of individuals to freedom of political expression versus the state’s interest in maintaining its power (see first amendment balancing). With the thawing of the cold war, the Court has been somewhat more forward in protecting political speech, as, for example, in *Brandenburg v. Ohio (1969), where the Court gave the clear and present danger test the libertarian emphasis demanded by Holmes in Abrams.
William M. Wiecek