The opinion
PRETTYMAN, Associate Justice
(dissenting) .
I think that the motions to dismiss and for summary judgment should be denied and that evidence should be taken upon the question of fact raised by one of the constitutional issues. That issue is the validity of the clause of Section 9(h) of the Act which provides that the facilities of the Board shall not be available to a labor organization unless each of its officers swears “that he is not a member of the v. ommunist Party or affiliated with such party”. The question of fact is whether the nature of the Communist Party is such that a member of it would, or would likely, impede the objectives of the Act.
The court is of the view that the conclusions of Congress must be accepted if the test itself bears a reasonable relation to the legislative purpose, and that the finding of constitutionality may be made upon evidence taken by committees of the Congress and “facts of current history” of which the court will take judicial notice. I am of the view that when an act of Congress abridges freedom of speech, press and assembly, the court itself, by an independent examination and upon evidence presented to it, must determine the actuality of the necessity for the abridgment.
I shall not delay the promulgation of the decision in order to prepare an exhaustive discussion of the pertinent authorities, but will merely mention enough of them to indicate the bases of my view.
I. Some preliminary observations must be made. I agree with the majority of the court in regard to Sections 9(f) and 9(g) of the Act, which require labor unions to file financial statements. Similar provisions have long applied to newspapers and other publications. I agree in regard to the last clause of Section 9(h), which refers to persons and organizations which advocate the overthrow of the Government by force or illeg'al methods. Advocacy of such measures is so extreme that it could not be an inconspicuous or incidental part of a general program. Therefore, persons belonging to or believing in such an organization can properly be charged personally with that purpose, to the extent that they can be denied an operating participation in governmental facilities. We are not here concerned with criminal guilt.
I agree with the result reached by the court in the rulings upon the standing to sue of the individual plaintiffs. I have no doubt as to the standing of the plaintiff Union to sue for a declaratory judgment. The question posed by Section 9(h) is not merely a failure of certification (see Switchmen’s Union v. National Mediation Board, 1943, 320 U.S. 297 , 64 S.Ct. 95 , 88 L.Ed. 61 , but is a total denial to the Union of the use of the facilities created by the National Labor Relations Act. The Union has a direct interest which entitles it to sue.
I have fully in mind what was said in Bársky v. United States. 1 That opinion related to the power of inquiry, and to that alone. It was emphatic in that limitation. It cautioned that there is a vast difference between the necessities for congressional inquiry into a subject or situation and the necessities for legislative action which abridges the freedoms protected by the prohibitory Amendment. The former necessities were before the court in that case; the *178 latter are in part before us now. The court held in the Barsky case that a respectable representation to the Congress of a potential menace to the nation is sufficient warrant for inquiry into the subject. No such rule applies to action, as the court there carefully pointed out and as the Supreme Court has held many times. Inquiry may be justified when danger is merely potential ; danger must be factually real to justify action. Inquiry may be justified when danger is represented to the Congress by respectable authority; the danger must exist to justify action. In my present view I do. not depart from a single statement in the Barsky opinion. I move from that problem to this one, in the light of what was said there.
The great question as to how a democracy can protect itself in an internal conflict of ideas and at the same time preserve the individual rights of free speech, press and assembly, cannot be solved by a single all-embracing declaration of condemnation of noxious doctrine. Neither, 'on the other hand, can it be solved by unqualified affirmations of the right to say and print what one pleases at all times and under all circumstances. The problem is composed of parts. The congressional power of inquiry is one part. The constitutional power to limit statutory civil privileges 'is another part. -There are still other parts. It is elementary by now that Congress cannot condemn, prohibit, or even regulate everything as to which it may inquire, and that, it may not prohibit under all circumstances everything which it may prohibit under some circumstances.
II. The answer to the question posed by the case at bar follows from three propositions.
A. The restriction contained in the clause of the statute under discussion is an abridgment of free speech, press and assembly.
Political belief, speech and organization are among the forms of speech, press and assembly protected against governmental interference by the First Amendment. Indeed, freedom of political thought was the prime objective for which those particular clauses of the Amendment were fashioned. To condemn or ta interdict all members of a named political party is an abridgment of free speech, press and assembly. The Communist Party in this country is recognized as a political party. It is admitted to a place on election ballots and otherwise permitted to operate as political parties operate, and is subject to the laws directed at political parties.
It is true, as the Government contends, that this section of the statute does not in terms restrict freedom of speech, press or assembly. It is a limitation upon the use of facilities established and operated by the Government for the promotion of industrial peace and the betterment of industrial conditions. It is directed to the union and not to the individual. It provides, in effect, that if the union wishes to become the exclusive bargaining representative of its members, it cannot use the services of persons who belong to the proscribed political party, and the persons who belong to that party cannot become union officers. This is an abridgment of the rights of the members of the union to select their officers. Since the officers are, realistically and in common practice, the managers of the affairs of the organization and the spokesmen in its behalf, limitations upon their selection are limitations upon the speech and assembly of the members. Certainly the selection of officers is an essential element of an assembly and also of mass speech by a group of individuals. The statute also acts upon the individual who is a potential or prospective union officer and who holds the proscribed political belief. He must make a choice between his chosen vocation and furtherance of his political beliefs by party membership. These abridgments in the statute before us are upon the sole ground of political belief as evidenced by party affiliation.
This abridgment, however, is not an absolute suppression. The statute does not forbid membership in the Communist Party or prohibit Communist 'speech. It is an indirect, conditional, partial abridgment. It acts only when it requires a union to choose between members of the Communist Party and non-members for its officers, and when it requires an individual to *179 choose between vocation and political affiliation.
But the imposition of conditions upon the use of governmental facilities essential to legitimate activities, is subject to the restraints of the First Amendment. Congress cannot establish a Government facility which in practice becomes a necessity to activity in that field, and then impose upon the use of the facility a requirement that the persons involved waive a constitutional right; unless the necessities of the situation, which I shall discuss in a moment, require it. The cases dealing with newspapers and the second-class mail privileges are in point. 2
Congress established by the National Labor Relations Act a system for determining an exclusive bargaining representative for employees in appropriate units of employ. As a result of that system, one representative, and one only, is the representative of all the employees in negotiating and contracting with the employer in respect to wages, hours, and terms and conditions of employment. It is perfectly obvious that a labor union which is prohibited from being the bargaining repsentative of any of its members with any employer, will not remain long in existence. It is denied the chief function of a labor union and obviously can present to employees little reason for membership in it. These are simple, realistic facts. Denial of the privilege of appearing on a ballot in any and every election of bargaining representatives is, in actual fact, a destruction of the union involved. Congress has created a facility the use of which has become an essential to the life of a labor union. A condition imposed upon the use of such facility is a limitation upon the existence of the union. Thus, a requirement as to political belief, imposed upon the use of the facility, is not a mere condition upon a privilege; it is, in fact, an abridgment of political belief.
It is no answer to say that a union which is unable to secure a majority in an election is in the same resulting position as one which is prohibited from participation. A constitutionally protected right cannot be abridged just because the abridgment has no worse effect than would failure to exercise the right. A man’s right to speak cannot be denied him just because the result is no worse than it would be if he had nothing to say and so remained silent. A union which is unable ever to obtain a majority in an election may die a natural death, but that fact cannot justify its destruction by congressional mandate.
The first proposition is that the limitation in this clause of the statute is an abridgment of the freedoms of speech, press and assembly. 3
B. The second proposition is that the freedoms protected by the First Amendment may be abridged if the public interest necessitates the abridgement. It is true that the language of the Amendment is unqualified: “Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, * * But it is well established that the freedoms mentioned are not absolute and may be abridged for adequate reason.
There are at least three degrees of abridgment, and they must be considered separately in respect to the circumstances which make them valid. The three are (1) that abridgment incidental to the simple public revelation of a belief, (2) that which consists of a denial of specified *180 statutory civil privileges, and (3) a complete and direct suppression. The first was dealt with in the Barsky case, supra. Total suppression or prohibition has been dealt with by the Supreme Court in familiar cases, and the rule is well settled that speech and assembly can be directly suppressed only if the speech or assembly would cause or promote a clear and present danger to the national security. 4
The second above-named form of abridgment is our present problem. It is midway of the other two extremes. It is not merely incidental and remote; neither is it a complete or direct suppression.
The facilities of the National Labor Relations Board were created by Congress for a major public purpose. Industrial peace and the betterment of industrial conditions are major in the life of the country. It seems to me that Congress could require that persons bent on destroying rather than promoting those objectives be not permitted to participate in the efforts toward them authorized by Congress. Congress is not condemned to impotency in such matters. “That the State has power to regulate labor unions with a view to protecting the public interest is, as the Texas court said, hardly to be doubted.” 5
This phase of this case must, it seems to me, be dealt with from an exceedingly practical point of view. We are not. interested in forms of government as objets d’art of esthetic interest or even as philosophical concepts stimulating to intelligentsia. We are interested in them as workable means for the protection of men’s rights and the coordination of men’s affairs. If the principles of the Constitution are to be preserved, the government which that document constituted must operate as an effective instrument in an exceedingly practical world. In fashioning means and methods for the accomplishment of legitimate public tasks, Congress can, therefore, require that those means and methods be effective. It is not required to permit those who would prevent the accomplishment to do so in the easiest way, i. e., by obstructive participation in the actual operation. Thus, Congress could provide that persons and organizations bent on industrial war and confusion not be permitted to represent employees in bargaining with employers.
Looking at the matter from the precisely contrary point of view, it is equally clear that Congress cannot violate the prohibitions of the First Amendment by the guise of public purpose or necessity.
Looking at the problem from both points of view, it seems to me that the rule must be that the freedoms protected by the First Amendment can be abridged only if and only to the extent that they constitute clear and dangerous obstruction to the effective accomplishment of major public pbjectives. But they can be abridged if and to the extent that they do constitute such obstruction. This is my understanding of the necessary meaning of the clear and present danger rule, and my reading of the opinions in such cases as Thornhill v. Alabama, 6 Cantwell v. Connecticut. 7 and Thomas v. Collins. 8 In the last-named case, Mr. Justice Rutledge said for the Court: “For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger.” 9
If Congress had required an affidavit that the officer of the union did not advo *181 cate the use of the strike for political purposes or merely to foment strife, and would not, under penalty, so advocate or act, I would find no constitutional objection. But Congress did not do that. It interdicted all members of a named political party.
Parenthetically, a comparison of the two clauses of Section 9(h) is interesting in this connection. By one clause the officer must swear that he is not a member of the Communist Party. That proscription is upon that Party as such, without qualification or exception. The other clause is strikingly different. It is directed to a particular belief. It proscribes those who believe in the overthrow of the Government by force or illegal methods. In other words, we are told that Congress concluded that members of the Communist Party are not likely to advocate the destruction of the Government by illegal means but that they are committed to industrial strife. Counsel for the Board was quite specific about this. In oral argument he said: “I have already indicated and tried to make clear what Congress did not find as the basis for this legislation as well as what it did find. It made no finding that the Communist Party believes in or teaches violent overthrow of the Government. It made no finding that all communists are necessarily agents of a foreign power or that all the communists had, in fact, engaged in the kind of political activities which Congress didn’t want to protect, much less that any communist engaged in any violation of any law at all. It didn’t find that at all. What it did find was that some communists and their supporters and some people who believed in the violent overthrow of the Government tended, by virtue of those facts, to utilize power as union leaders and as officers of the union for purposes other than those which Congress desired to protect. That is all that it found.”
And again he said:
“Two things are extremely important about that, I think. One is that the definition itself and the form in which the affidavit is put demonstrates that Congress -did not believe necessarily that membership in the Communist Party meant that a man believed in the overthrow of the Government by force and violence. It separated the categories quite clearly, either a member of the Communist Party, or affiliated with the Communist Party, on the one hand, or believes in the overthrow of the Government or supports an organization which believes in that principle the same way.
“I agree there is a wide gap there and Congress did not find — I might as well make it perfectly clear now- — it did not find and it did not purport to find, and it is our position that it did not need to- and could not properly have found, that the Communist Party advocates the doctrine of violent overthrow of the Government by force or other unconstitutional means. That is just no part of this case.”
Upon the evidence of which the court takes judicial notice and which the Government presses upon us, this is a curious diversity of conclusion. In the Congress and in the public press, there are many declarations that the Communist Party is a subservient tool of a foreign power and, as such, bent upon the destruction of our Government by force or illegal methods. Curiously, part of the evidence cited and quoted by the court in this case as supporting the conclusion that the Communist Party foments industrial strife, is actually that that party seeks to overthrow the Government. But we are told by the Gov emment that Congress did not reach the latter conclusion and “could not properly have [so] found”.
However, to resume the thread of consideration toward a conclusion, it next seems to me that Congress could forbid to all members of a named political party certain specified privileges only if it be a fact that members of that party would misuse those privileges and impede their public purpose. The Government takes a different view. It says that Congress has concluded that Communists in labor organizations might use the strike for political purposes and might use their power to stir up strife instead of promoting peace, and that this conclusion is sufficient to support the interdiction. The “might” in this part of its contention ' is intentional. The brief never makes any *182 contention except that Communists “might” do these things; it never asserts that the evidence before Congress shows that they would, or that they probably would. That this was the full extent of its position was made clear and emphatic by counsel upon the oral argument. Counsel for the Board said: “There is, we believe, adequate evidence upon which Congress could conclude that part of the philosophy and program of the Communist Party is to regard labor unions as political rather than economic instrumentalities. We believe that Con-' gress could further conclude and it did conclude that membership in the Communist Party or support of an organization dominated by the Communist Party gave reason to believe.that an individual might —not necessarily must, but might — if he became an officer of a labor organization or was such an officer, be influenced by the doctrine of the organization of which he was a member and utilize or tend to lead his organization into paths of political action in the interest of the Communist Party rather than in the paths of economic action that Congress wanted to promote.” And again he said: “The connections that are important are whether Congress could view the doctrine of the Communist Party with reference to labor organizations, their purposes and their uses, whether it could take cognizance of the view of the Communist Party in that field and whether it could say that we believe that some people who are members of the Communist Party may, by virtue of that fact — not must and not all — but that some may by virtue of that fact utilize their positions in labor organizations to turn them into political weapons to support the Communist Party doctrine, or causes, or programs, or policies, rather than to foster collective bargaining as a friendly method of adjustment of disputes, rather than utilization of their labor organizations as purely an economic weapon to raise the wages and hours and working conditions of the laborers underneath. That, Your Honor, is the position we take here.”
Thus, the question posed by the contention as actually made by the Government, is whether Congress may deny a Government facility to all members of a named organization because it finds that some such persons might — not all such persons but’ some, and not must but might — use the facilities for an, undesirable end. If the effect of the denial of the benefit were not an infringement of a constitutional right, I might agree with the Government’s view. But where the denial of the benefit is in actual practice an abridgment of a constitutional right, its validity requires more than a possibility of untoward action; there must be a real probability, perhaps even a certainty; at any rate a clear and present danger. 10
As I read the opinion, the majority of the court does not rest its decision upon the contention as made by the Government. It finds that Communists will and do use positions of power in labor organizations to foment strife and to provoke strikes for political purposes, and that such is the avowed purpose, determination and commitment. of the Communist Party. This brings us to the third proposition in. the course of our reasoning.
C. How is.the court to know that members of the Communist Party will misuse-the facilities of the National Labor Relations Board? My brethren say that the-testimony before the Congressional Committees, the reports of those -Committees,, and reports in the press establish those-facts. The Government says that the conclusions of Congress are “derived from-the personal experience and observation of the legislators and from testimony before-the House and Senate Committees which-considered the bill, and they comported' with the conclusions reached by other *183 Committees of Congress, and with the judgment of many trade union leaders and numerous experts in the field of industrial relations.”
It is my view that such evidence is not enough. I think that the court itself must determine upon evidence presented to it whether the facts are as Congress concluded them to be. Congress cannot, in my view, directly abridge a right protected by the First Amendment merely by making an affirmation of a fact. If it could, it could flout the Amendment with impunity.
The Supreme Court has stated the rule many times in familiar cases. 11 Mr. Chief Justice Hughes stated the heart of the matter thus in his careful analysis of the subject in the St. Joseph Stock Yards case: “When the legislature acts directly, its action is subject to judicial scrutiny and determination in order to prevent the transgression of these limits of power. The legislature cannot preclude that scrutiny and determination by any declaration or legislative finding. Legislative declaration or finding is necessarily subject to independent judicial review upon the facts and the law by courts of competent jurisdiction to the end that the Constitution as the supreme law of the land may be maintained.” 13
It may be that if the difference of opinion between us in the present case were reduced by analysis to its ultimate essence, that residual precipitate would be the question whether (1) the court must determine merely whether there was a rational factual basis for the conclusion of Congress, entitled to strong presumption of constitutionality, or (2) the court must determine whether there was in fact a clear and present danger necessitating, or at least justifying, the abridgment of freedoms. I think that under Supreme Court decisions different rules apply when a statute is challenged under a provision of the Constitution, such as the interstate commerce clause, which delegates power to the Congress, and when the challenge is violation of the prohibitory First Amendment. 13 The strong presumption of constitutionality which attaches to an act of Congress challenged for lack of power under one of the delegations of power, does not attach to an act challenged as violative of the prohibitions of the First Amendment. It is perfectly true, as the Supreme Court said in the passage quoted by my brethren from the opinion in Thomas v. Collins, 14 that “That judgment in the first instance is for the legislative body.” Of course, Congress must first make a conclusion and enact a statute before the courts are called upon to pass upon its validity. The next sentence in Mr. Justice Rutledge’s statement is the one in which we are here interested. He said: “But in our system where the line can constitutionally be placed presents a question this Court cannot escape answering independently, whatever the legislative judgment, in the light of our constitutional tradition. Schneider v. State, 308 U.S. 147, 161 [ 60 S.Ct. 146 , ISO, 84 L.Ed. 155 ], And the answer, under that tradition, can be affirmative, to support an intrusion upon this domain, only if grave and impending public danger requires this.”
In examining the evidence which the court says is before us by reason of having been before Congress and in the public press, I cannot overlook the opinions of the Supreme Court in the Schneiderman case 15 and in Bridges v. Wixon. 16 One must read the whole of those opinions to understand my view in respect to them. *184 The question in the Schneiderman case was whether'an active member and leader of the Communist Party could be “attached to the principles of the Constitution of the United States”. The District Court, upon voluminous evidence presented to it in the course of the trial, which evidence included all the data of which this court now takes judicial notice, or the equivalent of it, made a finding of fact that such member could not be so attached. The Supreme Court set aside that finding because, it said, the evidence was not “clear and convincing”. The decision upon the legal point involved in that case is not relevant here. What is relevant is that the Court, after an exhaustive examination of evidence, from the Communist Manifesto of 1848 through many writings and Communist Party documents down to the date of the case, held that the attitude of the Communist Party toward force and violence was not clear. In Bridges v. Wixon, supra, the Court set aside the findings, made upon evidence, as to the attitude of an individual based upon the program of the Party. How, then, can we say, as a matter of judicial notice, and without evidence taken in the course of a judicial proceeding, that the program of the' Party is such that any member of it represents, ipso facto, a clear and present danger to the public interest in the industrial field? Surely the evidence of a necessity for an abridgment of the freedoms named in the First Amendment must be clear and convincing. There is no great difficulty about taking evidence, and if the facts be as plain and overwhelming as the court thinks they are, there would be no difficulty in finding them. But in dealing with an abridgment of free speech, press and assembly, I cannot bring myself to accept the doctrine that any rational basis for the abridgment is sufficient, or that congressional conclusions of fact, testimony taken by congressional committees, or impressions gleaned from the public press are, without more, a sufficient basis for the exercise of the judicial function under the prohibitory provisions of the First. Amendment. Such showing is sufficient to justify, and even to require, congressional inquiry, but it is not enough for a positive statutory interdiction of all members-of a named political party.
Of course, to say, in the midst of the-current wave of affirmations as to the-program of the Communist Party in industrial matters, that the court does not know what that program is leaves one open to chiding, and perhaps to reproach, for obtuseness. 17 But a court cannot give heed to current waves of popular opinion in its dealings with constitutional rights. The fundamental, basic concepts of the First Amendment as a constitutional provision, and of the judiciary as an organ of constitutional government, require that the court itself must ascertain whether the facts are such as to require the abridgment of those rights.
The Supreme Court has said repeatedly, in cases above cited, that the courts must “determine independently”, or some equivalent expression, the facts when constitutional questions of congressional power are presented. No case is cited to us, and I have found none, where that Court has said that when. Congress has made a conclusion of fact upon which the constitution *185 ality of an act depends, the courts must take evidence upon those facts. But it seems to me that such must be the rule. Certainly, as I have said, Congress cannot establish its own power by a mere affirmation of fact. Moreover, congressional methods of taking testimony are not such as to assure accuracy in the ultimate determinations of fact. The Amendment, it must be remembered, was a limitation upon the Congress, and the function of the federal judiciary as a coordinate branch of government was to insure the observance of that limitation. Perhaps constitutional validity under the prohibitory Amendments requires treatment ■ different from other constitutional questions, and I, therefore, limit these observations to that type of question. I see no way by which the courts can exercise their constitutional functions in this type of case •except by taking evidence.
The Circuit Court of Appeals for the Ninth Circuit, 18 the Supreme Court of California, 19 and the Supreme Court of Washington 20 have considered the questions we are here considering, and I find myself in agreement with them. The opinion of the California court is exhaustive and too long to quote, but its views are mine. Upon similar grounds the United States District Court for the Northern District of Illinois held void a statute which forbade a place on the ballot to any political organization which is associated with Communist principles. 21 The Circuit Court of Appeals for the First Circuit has said 22 that “The program of the Red International Labor Union and the Communists is now a matter of general knowledge”, but the court acted in that case upon evidence introduced into the record. The same observation may be made in respect to United States v. Commissioner of Immigration, 23 Kjar v. Doak, 24 Ungar v. Seaman, 25 United States v. Curran, 26 and Ex parte Coon. 27 The Supreme Court of Arkansas upheld the constitutionality of a statute which forbade a place on the ballot to political parties which advocate the overthrow of government by force or violence, and applied that prohibition to the Communist Party, but it did so upon evidence in the record. 28
In the instant case, the court has dismissed the petition upon motion. That is equivalent to saying that a person alleging to the courts that an act of Congress is an invalid invasion of his constitutional rights under the First Amendment will not be permitted to prove that his allegation is true, if Congress has declared to the contrary upon the personal observations of some of its members and declarations of the country’s press. I do not believe that to be the law.
To sum up' my view — since this clause of the statute is an abridgment of freedoms of speech, press and assembly, its validity depends upon a direct factual connection between the test it prescribes and the objective it seeks; when validity is challenged under the First Amendment, the facts upon which validity depends must be determined by independent examination by the court.
III. A few comments upon the opinion of the court must be made in order to clarify the difference between us.
It seems to me that the opinion proceeds as though the problem were merely what to do with the Communists. That might indeed be simple. But that is not the problem. The problem is how to deal with the Communists and at the same time preserve inviolate the freedoms of speech, press and assembly. It is not disposition of the Communists which creates the difficulty; it is the First Amendment.
*186 The court points to the declaration of reasons for and purposes of the amendments to the Act in 1947, as they appear in Section 1 thereof. Congress there said that “certain practices by some labor organizations” have the effect of obstructing commerce. This carefully restrained congressional declaration emphasizes the points which I have discussed.
I cannot agree that this statute is merely an identification measure and, therefore, covered by the Barsky case, supra. The court says, “Section 9(h), in requiring the affidavit, seeks nothing except to identify the individuals who believe in Communism and those who belong to the Party.” It seems to me that the court thus ignores that which is plain. This statute is no mere requirement that an officer of a union identify himself. The provision is that the union of which he is an officer may not participate in the facilities of the Board, unless he swears that he is not a member of the Communist Party. This is so plain that discussion would merely confuse it.
1048, 83 U.S.App.D.C. —, 167 E.2d 241.
Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 156 , 66 S.Ct. 456 , 90 L.Ed. 586 ; see Mr. Justice Brandéis and Mr. Justice Holmes, dissenting in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 1921, 255 U.S. 407, 417, 436 , 41 S.Ct. 352 , 65 L.Ed. 704, 711, 720 .
American Steel Foundries v. Tri-City Council, 1921, 257 U.S. 184 , 42 S.Ct. 72 , 66 L.Ed. 189 , 27 A.L.R. 360 ; National Labor Board v. Jones & Laughlin, 1937, 301 U.S. 1, 33 , 57 S.Ot. 615, 81 L Ed. 893, 108 A.L.R. 1352 ; Truax v. Ra'ch, 1915, 239 U.S. 33 , 36 S.Ot. 7, 60 L.Ed. 131 , L.R.A.1916D, 545, Ann.Cas. 1917B, 283; Frost Trucking Co. v. Railroad Comm, of California, 1926, 271 U.S. 5Q3, 593, 46 S.Ct. 605 , 70 L.Ed. 1101 , 47 A.L.R. 457 . See, on the whole of this problem, the authorities collected and discussed in “Supersedure and the Purgatory Oath under the Taft-Hartley Law” by Boudin, 23 N. Y. U. L. Q. Rev. 72 (1948).
Schenck v. United States, 1919, 249 U.S. 47, 52 , 39 S.Ct. 247 , G3 L.Ed. 470, 473, 474; Cantwell v. Connecticut, 19-10, 310 U.S. 296 , 80S, CO S.Ct. 900, 84 L.Ed. 1213 , 128 A.L.R. 1352 ; West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 639 , 63 S.Ct. 1178 , 87 L.Ed. 1628 , 147 A.L.R. 674 ; Thornhill v. Alabama, 1940, 310 U.S. 88, 104, 105 , 60 S.Ct. 736 , 84 L.Ed. 1093 ; Thomas v. Collins, 1945, 323 U.S. 516, 532 , 65 S.Ct. 315 , 89 L.Ed. 430 . See Abrams v. United States, 1919, 250 U.S. 616, 624, 630 , 40 S.Ct. 17 , 63 L.Ed. 1173 . 1178, 1180 (dissenring opinion); Whitney' v. California, 1927, 274 U.S. 357, 372, 376 , 47 S.Ct. 641 , 71 L.Ed. 1095 (concurring opinion).
Thomas v. Collins, 1945, 323 U.S. 516, 532 ,- 65 S.Ct. 315 , 89 L.Ed. 43 .0.
1940, 310 U.S. 88 , 60 S.Ct. 736 , 84 L. Ed. 1093 .
1840, 310 U.S. 296 , 60 S.Ct. 900 , 84 L.Ed. 1213 .
j945, 323 U.S. 516 , 65 S.Ct. 315 , 89 L. Ed. 430 .
Id. 323 U.S. at page 530, 65 S.Ct. at page 322.
In addition to the cases elsewhere cited, see Schaefer v. United States, 1920, 251 U.S. 466 , 40 S.Ot. 259, 64 L.Ed. 360 ; Schneider v. State, 1939, 308 U.S. 147, 161 , 60 S.Ot 146, 84 L.Ed. 155 ; Gidow v. New York, 1923, 268 U.S. 652 , 45 S.Ct. 625 , 69 L.Ed. 1138 ; Pennekamp v. Florida, 1946, 328 U.S. 331 , 66 S.Ct. 1029 , 90 L.Ed. 1295 ; Bridges v. California, 1941, 314 U.S. 252 , 62 S.Ct. 190 , 86 L.Ed. 192 , 159 A.L.R. 1346 ; Herndon v. Lowry, 1937, 301 U.S. 242 , 57 ■ S.Ct. 732, 81 L.Ed. 1066 ; De Jongev. Oregon, 1937, 299 U.S. 353 , 57 S.Ct.. 255, 81 L.Ed. 278 .
St. Joseph Stock Yards Oo. v. United States, 1936, 298 U.S. 38 , 56 S.Ot. 720, 80 L.Ed. 1033 ; Borden’s Farm Products Oo. v. Baldwin, 1934, 293 U.S. 194, 209, 210 , 55 S.Ct. 187 , 79 L.Ed. 281 ; see Busey v. District of Columbia, 1943, 78 U.S. App.D.O. 189, 192, 138 F.2d 592, 595 .
St. Joseph Stock Yards Oo. v. United States, 1936, 298 U.S. 38, 51, 52 , 56 S. Ot. 720, 726, 80 L.Ed. 1033 .
Compare West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624 , 63 S.Ot. 1178, 87 L.Ed. 1628 , 147 A. L.R. 674; and United States v. Carolene Products Co., 1938, 304 U.S. 144 , 58 S.Ct. 778 , 82 L.Ed. 1234 .
Supra note 8, 323 U.S. at page 531, 65 S.Ct. at page 323.
Schneiderman v. United States, 1943, 320 U.S. 118 , 63 S.Ct. 1333 , 87 L.Ed. 1796 .
1945, 326 U.S. 135 , 65 S.Ct. 1443 , 89 L.Ed. 2103 .
The provision in the Emergency Belief Appropriation Act, fiscal year 1943, 56 Stat. 634 , 640, July 2, 1942, 15 U.S.O. A. §§ 721-728 note, requiring an afiBdavit that a person is not “a Communist”, was held by the District Court of New Jersey to be too vague for criminal enforcement. United States v. Hautau, 1942, 43 F. Supp. 507, 510 . Judge Fake said, “Moreover, the Court also finds itself in a position where it can not give a reasonably certain inclusive and exclusive definition of the word.” On the other hand, Judge Woolley, of the Court of Appeals for the Third Circuit, in United States v.
Tapolcsanyi, 1930, 40 F.2d 255, 257 , said, “While every tolerably informed person knows what a Communist is, we are not informed precisely what is a ‘red’ Communist * *
The Selective Training and Service Act of 1940 contained a provision, Sec. 8(i), 54 Stat. 892 , 50 U.S.C.A.Appendix § 308 (i), which expressed a policy of Congress that vacancies in employment rolls caused by an induction into service not be filled by “a member of the Communist Party”. We are not cited to any case in which that provision was involved.
Ex Parte Fierstein, 1930, 41 F.2d 53 .
Communist Party of United States v. Peek, 1942, 20 Cal.2d 53Í5, 127 P.2d 889 .
State v. Reeves, 1940, 5 Wash.2d 637 , 106 P.2d 729 , 130 A.L.R. 1465 .
Feinglass v. Reinecke, 1942, 48 F. Supp. 438 .
Murdoch v. Clark, 1 Cir., 1931, 53 F. 2d 155, 157 .
2 Cir., 19.32, 57 F.2d 707 .
7 Cir., 1932, 61 F.2d 506 .
8 Cir., 1924, 4 F.2d 80 .
2 Cir., 1926, 11 F.2d 683 .
1941, 44 Cal.App.2d 531 , 112 P.2d 767 .
Field v. Hall, 1940, 201 Ark. 77 , 143 S.W.2d 567 .