LEGISLATION PROTECTIVE OF THE ARMED FORCES AND OF THE WAR POWER
The Federal Government may punish utterances which obstruct its recruiting or enlistment service, cause insubordination in the armed forces, encourage resistance to government in the prosecution of war, or impede the production of munitions and other essential war material.[205] The only issue which has divided the Court with regard to such speech has been the degree of danger which must exist before it may be punished. The recent decision in Dennis v. United States diminishes, if it does not eliminate, this issue.[206]
LOYALTY REGULATIONS: THE DOUDS CASES
"Section 9 (h) of the Labor Management Relations Act requires, as a condition of a union's utilizing the opportunities afforded by the act, each of its officers to file an affidavit with the National Labor Relations Board (1) that he is not a member of the Communist Party or affiliated with such party, and (2) that he does not believe in, and is not a member of or supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods." The statute also makes it a criminal offense to make willfully or knowingly any false statement in such an affidavit.[207] In American Communications Association, C.I.O. et al. v. Douds[208] five of the six Justices participating sustained the requirement (1) and three Justices sustained the requirement (2) against the objection that the act exceeded Congress's power over interstate commerce and infringed freedom of speech and the rights of petition and assembly; and in Osman v. Douds[209] the same result was reached by a Court in which only Justice Clark did not participate. In the end only Justice Black condemned requirement (1), while the Court was evenly divided as to requirement (2). In the course of his opinion for the controlling wing of the Court, Chief Justice Vinson said: "The attempt to apply the term, 'clear and present danger,' as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea * * * the question with which we are here faced is not the same one that Justices Holmes and Brandeis found convenient to consider in terms of clear and present danger. Government's interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. * * * The contention of petitioner * * * that this Court must find that political strikes create a clear and present danger to the security of the Nation or of widespread industrial strife in order to sustain § 9 (h) similarly misconceives the purpose that phrase was intended to serve. In that view, not the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the 'test' laid down in the Schenck Case."[210] In thus balancing the gravity of the interest protected by legislation from harmful speech against the demands of the clear and present danger rule the Court paved the way for its decision a year later in Dennis v. United States.
THE CASE OF THE ELEVEN COMMUNISTS
Dennis v. United States[211] involves the following legislation:
"Section 2. (a) It shall be unlawful for any person—
"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government;
"(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;