Do State Antisubversive Efforts Threaten Civil Rights?

• Author: William B. Prendergast
• Published date: 01 May 1951
• Date: 01 May 1951
• DOI: http://doi.org/10.1177/000271625127500116
• Subject Matter: Articles

124

Do

State

Antisubversive

Efforts

Threaten

Civil

Rights?

By

WILLIAM

B.

PRENDERGAST

OVER

three

hundred

separate

stat-

utes

aimed

specifically

against

subversive

acts

and

utterances

are

to

be

found

today

among

the

laws

of

our

states.’

Although

some

of

these

stat-

utes

date

back

to

colonial

times,

the

bulk

of

state

antisubversive

legislation

is

of

recent

origin,

spawned

between

the

period

of

the

First

World

War

and

the

present.

For

the

most

part,

such laws

have

been

enacted

in

time

of

social

un-

rest-in

1919,

year

of

industrial

strife,

and

the

depression

years

of

the

1930’s-

or

in

time

of

international

conflicts,

both

hot

and

cold.

In

all

instances,

laws

of

this

type

seem

to

have

been

directed

chiefly,

if

not

exclusively,

against

groups

classifiable

as

left-wing

organizations.

The

concern

manifested

by

state

legislators

about

the

activities

of

Nazi

or

Fascist

groups

has

never

matched

their

apprehension

about

the

deeds

of

the

Communists.

Laws

against

treason,

insurrection,

and

sabotage

are

forms

of

antisubversive

legislation

which

can

be

disposed

of

with

no

more

than

an

acknowledgment

of

their

existence.

In

general,

these

laws

prohibit

activities

which

the

most

ardent

civil

libertarian

is

unlikely

to

defend

as

an

exercise

of

a

right.

. Red-flag

laws,

which

today

clutter

up

the

statute

books

of

thirty-four

states,

do

pose

a

problem

for

the

civil

libertar-

ian.

A

ban

on

the

display

of

an

em-

blem,

innocuous

in

itself,

is

hardly

con-

sonant

with

the

right

of

free

speech.

Yet

to

discuss

such

statutes

as

a

gen-

uine

threat

to

civil

liberty

in

1951

would

be

whipping

a

horse

that

has

been

dead

for

twenty

years

ever

since

the

United

States

Supreme

Court

pronounced

the

California

Red

Flag

Law

unconstitu-

tional

in

part

in

Stromberg

v.

Cali-

fornia.2

No

sign

of

resurrection

is

dis-

cernible.

The

other

common

types

of antisub-

versive

legislation,

however,

confront

us

with

issues

too

basic

and

too

urgent

to

be

ignored.

Do

these

laws

threaten

civil

liberties?

If

so,

to

what

extent

and

how?

Is

actual

or

potential

impairment

of

civil

liberties

justified

in

order

to

avert

a

greater

evil

which

these

laws

combat?

These

are

the

weighty

and

disturbing

questions

to

which

some

frag-

ments

of

an

answer

are

offered

in

the

pages

that

follow.

SEDITION,

CRIMINAL

ANARCHY,

AND

CRIMINAL

SYNDICALISM

LAWS

Criminal

statutes

designed

to

suppress

subversive

groups

usually

prohibit

the

use

of

violence

as

a

means

of

altering

existing

political-

or

economic

arrange-

ments. Such

a

prohibition

is

unobjec-

tionable,

though

probably

unnecessary

since

acts

of

violence

are

everywhere

punishable

under

other

laws.

What

is

1

The

writer

is

indebted

to

Professor

Walter

Gellhorn

of

the

School

of

Law,

Columbia

University

for

a

complete

and

current

com-

pilation

of

state

antisubversive

laws.

This

compilation

has

been

prepared

for

inclusion

in

The

States

and

Subversion,

a

volume

edited

by

Professor

Gellhorn

for

publication

by

the

Cornell

University

Press.

An

earlier

list

of

such

laws

is

found

in

Zechariah

Chafee,

Jr.,

Free

Speech

in

the

United

States,

New

York,

1941.

Recent

laws

are

summarized

by

W.

B.

Prendergast,

"State

Legislatures

and

Commu-

nism :

The

Current

Scene,"

American

Political

Science

Review,

Vol.

XLIV,

No.

3

(Sept.

1950),

pp.

556-74.

2

283

U. S.

359

(1931).