“Priests of Our Democracy”: The Origins of First Amendment Academic Freedom

Abstract

“Priests of Our Democracy : The Origins of First Academic Freedom Amendment MARJORIE HEINS Introduction In the years after World War II, the Supreme Court under Chief Justice Fred Vinson upheld nearly every aspect of the Cold War anti-communist crusade that came before it, including loyalty investigations of teachers and professors. Although Earl Warren, appointed Chief Justice in 1953, led the Court in a more free speech-friendly direction, change came haltingly. It was not until Keyishian v. Board ofRegents in 1967 that the Court rejected the underlying prem­ ises of government loyalty programs and declared academic freedom a “special concern of the First Amendment.”1 The First Amendment in the 1930s and 1940s First Amendment jurisprudence essen­ tially began in 1919 when Justice Oliver Wendell Holmes, Jr. announced the “clear and present danger” test to measure the validity of restrictions on political dissent, but then affirmed convictions for anti-World War I protests that had not created any danger to the republic that was either clear or present.2 The first Supreme Court decision that reversed a conviction for allegedly subversive speech (in 1927) was decided on due-process rather than free-speech grounds.3 In 1931, with the anti-Bolshevik panic engendered by the Russian Revolution reced­ ing, the Court struck down a California law that banned public display of a red flag as a sign of “opposition to organized govern­ ment,” an “invitation or stimulus to anarchis­ tic action,” or an “aid to propaganda that is of a seditious character.” The decision only invalidated the law insofar as it criminalized display of the flag as a symbol of peaceful protest.4 Nevertheless, as the legal scholar Harry Kalven noted, this modest case was the first “in the history ofthe Court in which there was an explicit victory for free speech.”5 THE FIRST AMENDMENT AND ACADEMIC FREEDOM 387 The Court was more expansive in 1937 when it overturned the criminal syndicalism conviction ofan organizer who had spoken at a meeting called by the Communist party to protest police brutality and raids on workers’ homes. There was no evidence the defendant said anything violent or distributed revolu­ tionary literature. ChiefJustice Charles Evans Hughes’s opinion affirmed that states may punish “an attempted substitution offorce and violence in the place of peaceful political action,” but ruled that, on these facts, the conviction violated the First Amendment.6 Two years later, Hague v. CIO struck down an ordinance that forbade the holding of meetings in streets and other public places without a police permit, which would not be granted for any meeting at which a speaker advocated “obstruction” of state or federal government or change in government “by other than lawful means.” The city had refused labor organizers the right to hold meetings, seized their leaflets, and run them out of town.7 The Court continued expanding First Amendment rights during World War II. The same year that Robert H. Jackson’s opinion in West Virginia State Board of Education v. Barnette affirmed the right of Jehovah’s Witness children not to be forced to salute the flag,8 Frank Murphy wrote an opinion reversing the revocation of citizenship of an active communist. The petitioner’s beliefs, Murphy said in Schneiderman v. U.S., neither conflicted with basic requirements for citi­ zenship nor exceeded “the area of allowable thought” under the Constitution: not only the First Amendment but Article V, providing for amendments that change the structure of the government, “refute the idea ... that one who advocates radical changes is necessarily not attached to the Constitution.”9 Harlan Fiske Stone, joined by Felix Frankfurter and Owen J. Roberts, dissented in Schneiderman. Frankfurter oozed contempt in a memo that called Murphy’s draft opinion a “gossamer web of evasion and wordjuggling .” In a note to Murphy, he sarcasti­ cally suggested “that Uncle Joe Stalin was at least a spiritual co-authorwith Jefferson ofthe Virginia Statute for Religious Freedom.”10 In 1946, as the Cold War began, the Court appeared to stand by its defense of dissenters. In U.S. v. Lovett, it struck down a law that prohibited salary payments to three federal employees because oftheir“views and philosophies as expressed...