Why might the Palmer Raids be considered unconstitutional?

The first anti-Communist alarm, or Red Scare, in the United States occurred between 1917 and 1920, precipitated by the events of World War I and the Bolshevik revolution in Russia. A second Red Scare came with a revival of anti-Communist feeling after World War II that lasted into the 1950s. In both periods First Amendment rights providing for free expression and free association were endangered and put on trial. (Cover of a propaganda comic book from 1947, image via Wikimedia Commons, public domain)

The first anti-Communist alarm, or Red Scare, in the United States occurred between 1917 and 1920, precipitated by the events of World War I and the Bolshevik revolution in Russia. (The term "Red" came from the color of the flag used by Marxist and Communist groups.) Laws such as the Espionage Act of 1917 and the Sedition Act of 1918 criminalized many forms of speech. The Sedition Act was the broadest with its criminalization of any disloyal language, whether printed or spoken, about the government of the United States. A second Red Scare came with a revival of anti-Communist feeling after World War II that lasted into the 1950s. In both periods First Amendment rights providing for free expression and free association were endangered and put on trial.

The first Red Scare resulted in many Supreme Court cases dealing with speech

Convictions under the Espionage Act and the Sedition Act were upheld in several Supreme Court cases in 1919, including Schenck v. United States, in which Justice Oliver Wendell Holmes Jr. first outlined his clear and present danger test; Debs v. United States; and Abrams v. United States.

The executive branch also played a part. Most notably, Attorney General A. Mitchell Palmer, in the so-called Palmer raids, authorized the arrests of several thousand suspected radicals, and many were deported to the Soviet Union. In the 1920s, prosecutions under state syndicalism statutes were upheld in favor of state curtailment of free speech in Gitlow v. New York (1925) and Whitney v. California (1927). Many years later Whitney was overruled by Brandenburg v. Ohio (1969).

Yet cases also were decided in favor of protection of free speech. Among them were Fiske v. Kansas (1927), De Jonge v. Oregon (1937), and Herndon v. Lowry (1937).

The second Red Scare dealt with loyalty to US government

The post–World War II years precipitated a second Red Scare on the federal level, with the late 1940s and early 1950s the heyday. In Congress, the House Un-American Activities Committee (HUAC) was approved as a permanent committee in 1945. (It was abolished in 1975.) Congress also enacted the Subversive Activities Control Act of 1950 (the McCarran Act), which made it a crime to take actions that might contribute to a “totalitarian dictatorship” within the United States, and the Communist Control Act of 1954, which prohibited Communists from holding office in labor organizations.

Sen. Joseph McCarthy, chair of the Senate Committee on Government Operations, brought many people before his committee to question their loyalty to the United States and unsuccessfully investigated the armed services for Communist influences. President Harry S. Truman issued an executive order that provided for a federal loyalty program, and the FBI under J. Edgar Hoover compiled detailed information on suspected communists. In Dennis v. United States (1951), the judiciary sustained the administration’s prosecutions under the earlier Smith Act of 1940, which criminalized teaching or advocating the overthrow of government by force or being a member of an organization that engaged in such activity.

The broad power of the legislature to curtail First Amendment rights subsequently was limited in Yates v. United States (1957) and Scales v. United States (1961). Still, a requirement in the McCarran Act mandating that Communists register with the attorney general was sustained in Communist Party of the United States v. Subversive Activities Control Board (1961). However, in United States v. Robel (1967), a blanket prohibition against Communists working in defense industries was declared to violate the First Amendment right of association. Over time, the perception that those investigating Communism had engaged in excess led to the demise of most of their abuses. Fears eventually diminished as prophecies of imminent Communist takeover proved unfounded.

This article was originally published in 2009. Dr. Marcie Cowley was a professor at Michigan State University.

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In De Jonge v. Oregon, 299 U.S. 353 (1937), the Supreme Court ruled that state governments may not violate the constitutional right of peaceable assembly. The decision contributed to the development of “symbolic speech” and “speech plus” categories, concepts relating to speech combined with conduct or action.

De Jonge arrested for talking about communist ideas

On July 27, 1934, the Portland police arrested Communist Party member Dirk De Jonge and three other speakers at a meeting of 150–300 people who were protesting police brutality in recent confrontations with striking union longshoremen. While De Jonge appealed to some communist ideas during his speech, neither he nor the other speakers advocated violence.

In the unanimous decision, the Court ruled against Oregon’s 1930 Criminal Syndicalism Act, as amended in 1933, which made it a felony for “any person to become a member of any society or assemblage of persons which teaches or advocates the doctrine of criminal syndicalism.”

The statute, which was intended to suppress communism, defined criminal syndicalism as the doctrine that “advocates crime, physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.”

Court had previously distinguished between advocacy and incitement

The De Jonge ruling rested on previous cases, most notably Gitlow v. New York (1925) and Whitney v. California (1927).

In Gitlow, the Court found that a state may restrict expressions calling for the violent overthrow of government if the expressions in question possess a “tendency” to incite such activity.

Important in that case was that the Court’s opinion defended the concept that the 14th Amendment’s due-process clause protects First Amendment rights — in this case free speech and free press — at the state level.

Further, although the Court had upheld a state law against syndicalism in Whitney, Justice Louis D. Brandeis’s concurring opinion provided a compelling defense of free speech and made the distinction between advocacy and incitement.

Supreme Court struck down criminal syndicalism law

Portland attorney and American Civil Liberties Union member Gus J. Solomon was instrumental in placing the De Jonge case in the context of these earlier First Amendment decisions. He believed that winning the case would be a victory for the constitutional guarantee of due process, and he asked New York attorney Osmond K. Fraenkel to defend De Jonge.

Writing on behalf of the unanimous Court (8-0, with Justice Harlan Fiske Stone absent), Chief Justice Charles Evans Hughes applied the right to assemble peacefully to the states and affirmed the protection of free speech from state governments.

“The holding of meetings for peaceable political action cannot be proscribed,” he wrote.

Furthermore, Hughes continued, a state could not interfere with a group’s right to gather and discuss political issues; such laws were “repugnant to the due process clause of the Fourteenth Amendment.”

This article was originally published in 2009. Gary E. Bugh is Professor of Political Science, Chair of the Political Science Department, and University Pre-Law Advisor at Texas A&M University-Texarkana. He teaches Political Theory, American Political Theory, Constitutional Law, Civil Rights and Civil Liberties, Political Parties and Elections, and the Presidency. His publications include Electoral College Reform: Challenges and Possibilities (Routledge, 2016).

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Sweezy v. New Hampshire (1957) stands as the first U.S. Supreme Court case to expound upon the concept of academic freedom though some earlier cases mention it.

Most constitutional academic freedom issues today revolve around professors’ speech, students’ speech, faculty’s relations to government speech, and using affirmative action in student admissions. 

Although academic freedom is regularly invoked as a constitutional right under the First Amendment, the Court has never specifically enumerated it as one, and judicial opinions have not developed a consistent interpretation of constitutional academic freedom or pronounced a consistent framework to analyze such claims.