American Communications Association v. Douds, 339 U.S. 382 (1950), is a 5-to-1 ruling by the United States Supreme Court which held that the Taft–Hartley Act's imposition of an anti-communist oath on labor union leaders does not violate the First Amendment to the United States Constitution, is not an ex post facto law or bill of attainder in violation of Article One, Section 10 of the United States Constitution, and is not a "test oath" in violation of Article Six of the Constitution.
Background The American Communications Association (ACA) was founded in 1931 as the American Radio Telegraphists Association (ARTA) by Mervyn Rathbone.Lowitt, Interpreting Twentieth-Century America: A Reader, 1973, p. 452.The ARTA should not be confused with the United Radio Telegraphists Association, a similar union in the U.S. founded in 1917 but which had disbanded by 1922. See: May-Stewart, Handbook of American Trade-Unions: 1936 Edition, 1936, p. 278. The union represented telegraphists and radio operators (on land and at sea) in the United States. The union had previously been involved in a Supreme Court case regarding the use of strikebreakers in strikes (NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)), which it had lost. In 1937, the union changed its name to the American Communications Association and affiliated with the newly formed Congress of Industrial Organizations.Downey, "Telegraph Messenger Strikes and Their Impact on Telegraph Unionization," in The Encyclopedia of Strikes in American History, 2009, p. 516. A majority of the union's members were strongly left-wing, and most of the union's leaders were members of the Communist Party USA (CPUSA)—with the union effectively under the control of the CPUSA.Stark, "Some Unions Will Sign Anti-Communist Papers," New York Times, August 31, 1947; Busky, Communism in History and Theory: Asia, Africa, and the Americas, 2002, p. 155; Starobin, American Communism in Crisis, 1943-1957, 1975, p. 143; Rabinowitz, Unrepentant Leftist: A Lawyer's Memoir, 1996, p. 31.
The United States Congress enacted the National Labor Relations Act (NLRA) on June 27, 1935, and President Franklin D. Roosevelt signed it into law on July 5."Both Houses Clear Wagner Labor Bill," New York Times, June 28, 1935; "Roosevelt Signs the Wagner Bill as 'Just to Labor'," New York Times, July 6, 1935. In 1947, Congress amended the NLRA by enacting the Labor–Management Relations Act (better known as the Taft-Hartley Act) on June 23, 1947, overriding President Harry S. Truman's veto.Stark, "Industry, Labor Sharply Divided," New York Times, June 21, 1947; White, "Truman Plea Fails," New York Times, June 24, 1947. Section 9(h) of the Taft-Hartley Act required leaders of labor unions to file an affidavit with the National Labor Relations Board affirming that they were not members of the Communist Party USA and did not advocate the violent overthrow of the United States federal government.Abernathy and Perry, Civil Liberties Under the Constitution, 1993, p. 260. If a union had an elected leader who did not file such an affidavit, that union would lose the protection of the NLRA.
ACA leaders categorically refused to sign the anti-communist affidavits on the grounds that the oaths violated their First Amendment rights. On October 29, 1947, Charles T. Douds, regional director of the National Labor Relations Board in New York City, barred the American Communications Association from appearing on an NLRB-supervised union organizing election (its very first action under the new Taft-Hartley anti-communist oath provisions).Stark, "NLRB Blocks Union Bargaining Right," New York Times, October 30, 1947."High Court Will Rule on Two Cases Involving Taft Act Oath and Eisler," New York Times, November 9, 1948. The ACA sued to have the provision declared unconstitutional as a violation of its leaders' First Amendment rights.Loftus, "High Court Delays Red Clause Ruling," New York Times, January 14, 1949.
Procedural history
On June 29, 1948, the United States Court of Appeals for the Second Circuit held, in a 2-to-1 decision written by Judge Thomas Walter Swan, that Section 9(h) did not impermissibly impose on union members' First Amendment rights."Final Court Test on Taft Bill Seen," New York Times, June 30, 1948. Attorney Victor Rabinowitz appealed the case to the Supreme Court. The U.S. Supreme Court granted certiorari on November 8, 1949. Although the Court was due to hear oral argument on January 13, 1949, it delayed this in order to take on another case (United Steelworkers of America v. National Labor Relations Board) with almost identical issues. Argument was rescheduled for February 28, 1949, but did not occur until October 11 so that both cases could be heard together.
Three of the Court's most liberal justices did not participate in the decision.Rabinowitz, Unrepentant Leftist: A Lawyer's Memoir, 1996, p. 54.Wiecek, History of the Supreme Court of the United States..., 2006, p. 547. Justice William O. Douglas did not participate because he had nearly been killed in a horseback-riding accident earlier in the year, and was still convalescing at his home in Arizona.Christopher, Chances of a Lifetime: A Memoir, 2001, p. 20; Douglas, The Court Years, 1939-1975: The Autobiography of William O. Douglas, 1981, p. 95. Associate Justice Tom Clark had been President Truman's Attorney General, and had overseen the prosecution of the ACA.Frankel, History in Dispute: The Red Scare After 1945, 2000, p. 151; Wiecek, History of the Supreme Court of the United States..., 2006, p. 546. Although he joined the Court on August 24, 1949,"Truman Sees Clark Sworn In By Vinson at the White House," New York Times, August 25, 1949. Clark had recused himself due to his prior involvement in the case. Associate Justice Wiley Blount Rutledge, a staunch liberal and strong advocate for civil rights,Newman, The Yale Biographical Dictionary of American Law, 2009, p. 473. had died unexpectedly of a stroke on September 10, 1949, at the age of 55."Justice Wiley Rutledge Dies of Brain Hemorrhage at 55," New York Times, September 11, 1949. His successor, 59-year-old Sherman Minton, a former Democratic Senator from Indiana and a judge on the United States Court of Appeals for the Seventh Circuit, was nominated as his replacement on September 16, 1949, but was not sworn in until October 12.Wood, "Minton Named to High Court," New York Times, September 16, 1949; "Minton Is Confirmed For Court, 48 to 16," Associated Press, October 5, 1949; "Minton Sworn In As Supreme Court Justice," New York Times, October 13, 1949. His arrival on the Court came two days after oral argument, and he was not able to participate in the decision.As it turned out, Minton was one of the Court's more conservative members. See: Eisler, The Last Liberal: Justice William J. Brennan, Jr., and the Decisions That Transformed America, 1993, p. 76.
Decision Majority ruling Chief Justice Fred M. Vinson wrote the plurality decision for the majority, joined by Associate Justices Stanley Forman Reed and Harold Hitz Burton. Associate Justice Felix Frankfurter joined in all but Part VII of the majority opinion.
In Part I of the decision, Vinson first reviewed the relevant language in the Taft-Hartley Act, as well as that language which provided for processing of affidavits and imposition of penalties in the event no affidavits were filed in the time permitted.American Communications Association v. Douds, 339 U.S. 382, 385. He also reviewed the justification for upholding the constitutionality of the NLRA, which was to remove obstructions to interstate commerce.American Communications Association v. Douds, 339 U.S. 382, 387. He also reviewed Congress' justification for passing the Taft-Hartley Act, which also attempted to remove impediments to interstate commerce—including the so-called "political strike," in which "legitimate trade union objectives" were subordinated by the Communist Party to political objectives.American Communications Association v. Douds, 339 U.S. 382, 387-389.
In Part II, Vinson posed what a plurality of the court believed was the key question:American Communications Association v. Douds, 339 U.S. 382, 390. We are, therefore, neither free to treat § 9(h) as if it merely withdraws a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those persons who do not sign the affidavit from holding union office. The practicalities of the situation place the proscriptions of § 9(h) somewhere between those two extremes. The difficult question that emerges is whether, consistently with the First Amendment, Congress, by statute, may exert these pressures upon labor unions to deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations.
Part III of the decision addressed Congress' power to prevent political strikes through the Commerce Clause, whether the remedy designed was reasonable, and whether the threat posed by the Communist Party was so unique in its use of political strikes and in advocacy of violence that Congress could single it out. Vinson answered all questions affirmatively.American Communications Association v. Douds, 339 U.S. 382, 390-391. Citing In re Summers, 325 U.S. 561 (1945); Clarke v. Deckebach, 274 U.S. 392 (1927); and Hirabayashi v. United States, 320 U.S. 81 (1943), among others, Vinson noted that the Constitution often permitted otherwise irrelevant beliefs, personal traits, or employment status to be infringed upon in certain, limited circumstances.American Communications Association v. Douds, 339 U.S. 382, 391-392.
The question addressed in Part IV of the decision was whether the Communist Party presented such circumstances. The unions had argued that a "clear and present danger" test be applied to the legislation, as this was a First Amendment issue, but could not agree on how to do so.American Communications Association v. Douds, 339 U.S. 382, 393. Vinson rejected the attempt to apply the "clear and present danger" standard as a mechanical test:American Communications Association v. Douds, 339 U.S. 382, 394-395.
This confusion suggests that 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 provisions of the Constitution, said Mr. Justice Holmes, "are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth."
One of the unions had argued that political strikes did not constitute such an imminent danger as to pass constitutional scrutiny, but Vinson rejected this once more as a mechanical application of an inapt test.American Communications Association v. Douds, 339 U.S. 382, 397-398. Congress had not concluded, in enacting the Taft-Hartley Act, that expressing communist beliefs was a danger; rather, Congress had wished to eliminate impediments to interstate commerce.American Communications Association v. Douds, 339 U.S. 382, 396. The problem with political strikes, Vinson asserted, was that rather than allowing speech to combat speech in the "marketplace of ideas", strikes constitute force and coercion which Congress has every authority to regulate.