Journal of Supreme Court History

Free Expression in the W arren and B urger C ourtsIHGFEDCBA L illia n R . B e V ie r T he three and a half decades o f the W arren and B urger C ourts— 1953 to 1986— w ere years during w hich First A m endm ent doctrine underw ent profound change. T he challenge of capturing even the highlights of this change in this brief essay has required m e not only to be highly selective but, w ith regard to the m aterial I have selected to discuss, to paint w ith a very broad brush, to om it significant details, and to forego nuance alm ost entirely. E ven m ore frus­ trating has been the necessity o f leaving all but the barest outlines of supporting argum ents on the cutting room floor, for w hich I beg the reader’s understanding and indulgence. T he free expression cases of the W arren and B urger era reflected the gam ut of social upheav­ als that flow ered during those turbulent years. N ot every First A m endm ent case that the C ourt decided w as an artifact of the salient controversies of those tim es, o f course, but m any w ere. N or w as every m om entous series of events equally productive of First A m endm ent controversy, but— again— m any w ere. C onsider just four signal events: the C old W ar and M cC arthyism , the C ivil R ights m ovem ent, V ietnam , and W atergate. First, the C old W ar. W hen C hief Justice E arl W arren took office, the C old W ar w as, w ell, still pretty hot. M cC arthyism , as em bod­ ied in the Senator him self, m ay have just about run its course: he w as censured by his Senate colleagues in 1954 and died in 1957. Still, m any in the country w ere preoccupied by the internal threat that, they perceived, com m unists and their sym pathizers posed. T hese preoccu­ pations generated a variety of regulatory efforts, the operation of w hich in turn produced a con­ siderable volum e of First A m endm ent litiga­ tion. Suspected com m unists, for exam ple, w ere prosecuted and convicted for conspiracy to vio­ late the Sm ith A ct,1 w hich m ade it a crim e to advocate forcible overthrow ofthe governm ent, and they challenged their convictions.2 T he Subversive A ctivities C ontrol A ct of 19503 re­ quired “C om m unist A ction organizations” to register, and they challenged the requirem ent.4 G overnm ent em ployees subjected to loyalty program s;5 w itnesses reluctant to testify before 1 9 2 JOURNAL OF SUPREME COURT HISTORYfedcbaZYXWVUTSRQPO le gis la tive inve s tiga to r s ; 5' bar applicants denied adm ission for their failure to answ er questions concerning com m unist party m em bership;6 veterans claim ing tax exem ptions but refusing to disclaim advocacy of governm ent overthrow by force or violence;7 and teachers objecting to filing annual affidavits listing the organiza­ tions to w hich they belonged8— all m ounted First A m endm ent challenges. A s the C ivil R ights m ovem ent gained m o­ m entum , it m anifested itself in a variety of w ays, and its opponents devised a num ber of strategies that attem pted to use law to im pede its progress. M any o f these thrusts and counterthrusts also produced im portant First A m endm ent controversies. T here w ere sit-ins, stand-ins, parades and dem onstrations.9 T he governm ent dem anded inform ation from citi­ zens, and its dem ands inspired refusals to com ­ ply based on claim s to freedom -of-association .10 A ctivists organized litigation,11 and tried to raise m oney— and public consciousness, and in the course of these efforts m ade an occa­ sional defam atory and false statem ent of fact...