Free Speech and Oaths

As I have done many times in the course of my blogging, my last post for the semester will address freedom of speech when applied to radical anarchism/communism. This topic consistently attracts my attention, both because the Court has addressed the topic many times and because American history has interacted with communist ideology very inconsistently. This is seen in Communist Party of Indiana v. Whitcomb. In this case, the state of Indiana required election nominees to swear an oath promising that their party “does not advocate the overthrow of local, state or national government by force or violence.” Obviously, the Communist Party of Indiana could not oblige with this requirement, and subsequently were not allowed to have their candidate run in the election. The Communist Party of Indiana subsequently appealed to the Supreme Court.
The Court’s decision in this case surprised me, as every single justice on the Court ruled in favor of the Communist Party. Despite such a hardline stance against communism in the past, the Court, in 1974, ruled that the party held the right to advocate against the government as an ideological guideline. Justice Brennan authored the majority opinion, where he stated that the stances of the Communist Party do not necessarily confer unlawful action as a result. Here, the Court relied on more stringent scrutiny when it came to undermining free speech in the name of maintaining order. The Court prohibited governmental obstruction of free speech “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.” This echoes the similar principles found in past decisions like Gitlow v. New York and Schenck v. United States, yet in this case the Court did not equate simple advocacy of an ideology to a push toward imminent lawlessness or foreseeable danger. This case, however, revolved around an electoral oath, one that more actively undermines political freedoms and democratic values. In the concurrence, judges noted that this oath was only forced onto the Communist Party, not the Democrat or Republican parties, and found that this unfairly targeted the Communist Party and violated the principle of equal protection.

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