HUAC, the hollywood ten, and the first amendment right of non-association

Minnesota Law Review

Volumn 85, Issue 6, 2001, Pages 1669-1725

  Redisht, Martin H ^a   McFadden, Christopher R ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 37849186312     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (214)

1. Lardner authored a number of books, including his posthumously published autobiography, RING LARDNER, JR., I'D HATE MYSELF IN THE MORNING: A MEMOIR (2000). According to Victor Navasky, [Lardner] is famous because of his eponymous father, the great American sportswriter and humorist, and for his films, two of which won Academy Awards for best screenplay-the Katherine Hepburn/Spencer Tracy vehicle Woman of the Year in 1942, and in 1970, after fifteen years on the blacklist, MASH, the hilarious noir comedy about life among the medics during the Korean War.
2. Victor Navasky, Introduction to RING LARDNER, JR., I'D HATE MYSELF IN THE MORNING: A MEMOIR vii (2000). Lardner is also known for his contributions to the scripts of the popular "Dr. Christian" movies in the late 1930s and early 1940S.
3. SEE BERNARD F. DICK, RADICAL INNOCENCE: A CRITICAL STUDY OF THE HOLLYWOOD TEN 168 (1989).
4. In 1947, HUAC subpoenaed nineteen "unfriendly" members of the Hollywood community to testify. See, e.g., LARRY CEPLAIR & STEVEN ENGLUND, THE INQUISITION IN HOLLYWOOD 261 (1983). Only eleven actually testified, and one, Bertolt Brecht, testified that he had never been a member of the Communist Party of the United States of America (CPUSA). See
5. ROBERT VAUGHN, ONLY VICTIMS 104-05 (1972). The phrase "Hollywood Ten" refers to those who testified and were held in contempt after the hearings.
6. See, e.g., DICK, supra note 1, at 1;
7. see also Lawson v. United States, 176 F.2d 49, 54 (D.C. Cir. 1949) (affirming convictions of Hollywood Ten members John Howard Lawson and Dalton Trumbo for refusing to answer questions posed by HUAC).
8. See infra notes 49-55 and accompanying text. The ten included Samuel Ornitz, Lester Cole, John Howard Lawson, Herbert Biberman, Albert Maltz, Alvah Bessie, Adrian Scott, Edward Dmytryk, Ring Lardner, Jr., and Dalton Trumbo. See, e.g., VICTOR S. NAVASKY, NAMING NAMES 80-81 (1980).
9. 120 S. Ct. 2446 (2000).
10. Id. at 2449-50.
11. There perhaps exists ambiguity whether Dale was shunned because of his views about homosexuality or because of his own homosexuality. For purposes of the First Amendment right of non-association, this distinction may well be outcome determinative as to whether such private shunning is constitutionally protected. See discussion infra Part IV.C.
12. Dale was the co-president of the Rutgers University Lesbian/Gay Alliance and was the subject of a photo-interview story about his views on the subject in a local newspaper. Dale, 120 S. Ct. at 2449.
13. See id. at 2451-53.
14. See id. at 2451.
15. See id. at 2451-53; Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 580 (1995); N.Y. State Club Ass'n v. City of New York, 487 U.S. 1, 13 (1988); Bd. of Dir. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 548 (1987); Roberts v. U.S. Jaycees, 468 U.S. 609, 623-24 (1984).
16. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977); Barenblatt v. United States, 360 U.S. 109, 126-27 (1957); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 634-35 (1943); see also discussion infra Part III.B.
17. E-mail from Matthew F. Hale, President, World Church of the Creator, to Ellen Endrizzi, Research Assistant to Prof. Martin Redish, Northwestern University School of Law (Feb. 17, 2001, 14:51:06 EST) (on file with author).
18. Of course, the First Amendment right of non-association would, as a practical matter, come into play only if and when some level of government actually sought to prohibit such refusals to associate. Presumably, such prohibitions would come in the form of a public accommodations law making illegal any discrimination on the basis of political viewpoint. One could legitimately question how likely the enactment of such laws actually is. We believe, however, that a thorough theoretical analysis of the right of non-association is appropriate for three reasons. First, regardless of its actual practical impact, the analysis will contribute to an improved intellectual perspective on the theoretical underpinnings of the concept of free expression. Second, in the specific context of the Hollywood Ten and the blacklist, our analysis should have significant implications for normative views about, and a historical understanding of, this tumultuous period of modern U.S. history. Finally, as will be seen in subsequent discussions, acceptance of our view of the theoretical foundations of the right of non-association will have significant implications at least for the First Amendment rights of private individuals who seek to disseminate information about others' private political affiliations and perhaps even for governmental actions exposing such affiliations. See discussion infra Parts IV.E to V.
19. Jacob Weisberg, Cold War Without End, N.Y. TIMES MAG., Nov. 28, 1999, at 116.
20. See, e.g., Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 103 (1961); Am. Comm. Ass'n v. Douds, 339 U.S. 382, 431 (1950) (Jackson, J., concurring); see also Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 294 (1981).
21. To our knowledge, not even those who have defended the Committee have argued the exposure of Communist affiliations facilitated the First Amendment right of non-association. For the most part, the justification has instead focused on the Committee's role hi preserving national security. See, e.g., Barrenblatt, 360 U.S. at 117-18; Braden v. United States, 365 U.S. 431, 435 (1961); Wilkinson v. United States, 365 U.S. 399, 414 (1961); Lawson v. United States, 176 F.2d 49, 53 (B.C. Cir. 1949). This is a puzzling justification because the Committee's jurisdiction did not extend to the prevention of espionage or insurrection. See infra notes 29-30 and accompanying text.
22. See discussion infra Part V.
23. The Court has recognized that an individual's interest in privacy of association can be subordinated to compelling state interests that would be furthered by the dissemination of information related to the individual's group membership. See Buckley v. Valeo, 424 U.S. 1, 81 (1976) (requiring disclosure of lists of donors to major political parties to help voters cast informed ballots); Communist Party of the U.S., 367 U.S. at 103 (requiring disclosure of political membership of labor union leaders to help citizens make informed associational choices); United States v. Harriss, 347 U.S. 612, 615 (1954) (requiring disclosure of group membership of congressional lobbyists); see also Shelton v. Tucker, 364 U.S. 479, 488-90 (1960) (commenting favorably on a narrowlytailored disclosure ordinance calculated to help a school board determine whether schoolteachers are qualified for their profession); Bates v. City of Little Rock, 361 U.S. 516, 524 (1960) (commenting favorably on a city ordinance calculated to ensure compliance with occupation license tax and tax exemption guidelines).
24. See, e.g., Gibson v. Fla. Legislative Investigation Comm'n, 372 U.S. 539, 544 (1963); Shelton, 364 U.S. at 485-86;
25. Bates, 361 U.S. at 523-24; NAACP v. Alabama, 357 U.S. 449,462-63 (1958).
26. See, e.g., Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 336, 34143 (1995); NAACP v. Button, 371 U.S. 415, 433 (1963); Talley v. California, 362 U.S. 60, 64-65 (1960); Sweezy v. New Hampshire, 354 U.S. 234, 250-51 (1957); see also Lee Tien, Who's Afraid of Anonymous Speech? Mclntyre and the Internet, 75 OR. L. REV. 117, 157-58 (1996) (discussing how anonymity allows individuals to experiment with different messages, particularly when placed in novel situations, without risking stigma associated with being labeled as group members).
27. See discussion infra Part IV.E.
28. See generally Weisberg, supra note 14; JOHN EARL HAYNES & HARVEY KLEHR, VENONA: DECODING SOVIET ESPIONAGE IN AMERICA (1999).
29. Compare HARVEY KLEHR ET AL., THE SECRET WORLD OF AMERICAN COMMUNISM 14-15 (1994)
30. (describing clandestine activities of American Communists), and HERBERT ROMERSTEIN & ERIC BREINDEL, THE VENONA SECRETS: EXPOSING SOVIET ESPIONAGE AND AMERICA'S TRAITORS (2000) (describing espionage activities of American Communists), with
31. ELLEN SCHRECKER, MANY ARE THE CRIMES: MCCARTHYISM IN AMERICA 359-415 (1998) (attacking suppression of American Communists).
32. See, e.g., ARTHUR HERMAN, JOSEPH MCCARTHY 56-59 (2000) (describing the Communist threat to national security);
33. William F. Buckley, Jr., The Committee and its Critics, in WILLIAM F. BUCKLEY, THE COMMITTEE AND ITS CRITICS: A CALM REVIEW OF THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES 31-33 (1962) ("[T]he problems of internal security do exist... they are real, [and] the members of Congress are truly and justly concerned with the morphological innocence of our present laws ....").
34. See, e.g., ROBERT K. CARR, THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES, 1945-1950, at 271-315 (1952);
35. CEPLAIR & ENGLUND, supra note 2, at 225-98;
36. WALTER GOODMAN, THE COMMITTEE 190-225 (1964);
37. Alexander Mieklejohn, The Barenblatt Opinion, 27 U. Cffl. L. REV. 329, 339-41 (1959);
38. see generally DAVID CAUTE, THE GREAT FEAR: THE ANTI-COMMUNIST PURGE UNDER TRUMAN AND EISENHOWER (1978);
39. Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 YALE L.J. 1084 (1961).
40. See discussion infra Parts III.A to III.B.
41. CAUTE, supra note 24, at 488-89.
42. See id.
43. SCHRECKER, supra note 22, at 318 (internal quotations omitted).
44. See BUCKLEY, supra note 23, at 96-99.
45. H.R. Res. 282, 75th Gong., 83 CONG. REG. 7568 (1938).
46. See SCHRECKER, supra note 22, at 318.
47. Erica Bose, Comment, Three Brave Men: An Examination of Three Attorneys Who Represented the Hollywood Nineteen in the House Un-American Activities Committee Hearings in 1947 and the Consequences They Faced, 6 U.C.L.A. ENT. L. REV. 321,322 (1999).
48. See CAUTE, supra note 24, at 488-93; see generally CEPLAIR & ENGLUND, supra note 2, at 209-25.
49. See generally SCHRECKER, supra note 22, at 119-53.
50. See CEPLAIR & ENGLUND, supra note 2, at 206-07. Ceplair and Englund also argue that a significant force uniting the myriad opponents of the Communist Party was "their fear of trade union power and their hatred of socialism." Id. at 206. Furthermore, they note that the Communist Party of the United States could be viewed as a direct extension of the forces of darkness and of the power, duplicity, cynicism, rapacity, and terrorism of Joseph Stalin due to its "steadfast defense of all Soviet actions." Id. at 202.
51. Id.
52. See, e.g., CAUTE, supra note 24, at 523 (noting that the ACLU excluded Communists from organization in 1941); NAVASKY, supra note 3, at 4658 (discussing anti-Communist attitudes of the ADA, ACLU, and other groups); RICHARD GID POWERS, NOT WITHOUT HONOR 324 (1995) (noting that membership in the ADA was a way for liberals to clear themselves of suspicion of fellow-traveling sympathies during the heyday of McCarthyism).
53. See SCHRECKER, supra note 22, at 122-26.
54. Studio heads claimed that they maintained "hawk-eyed vigilance" in an attempt to prevent Communist or anti-American sentiments from appearing in films. CEPLAIR & ENGLUND, supra note 2, at 299.
55. See BUCKLEY, supra note 23, at 99.
56. See GOODMAN, supra note 24, at 218.
57. See CAUTE, supra note 24, at 495.
58. Böse, supra note 32, at 323.
59. See GOODMAN, supra note 24, at 213-14.
60. Id. at 323.
61. See CEPLAIR & ENGLUND, supra note 2, at 261.
62. See VAUGHN, supra note 2, at 76.
63. Id. at 324.
64. Id.
65. Id.
66. Id. at 325.
67. See NAVASKY, supra note 3, at 82.
68. Bose, supra note 32, at 348.
69. See VAUGHN, supra note 2, at 95.
70. Bose, supra note 32, at 322-26; see also Lawson v. United States, 176 F.2d 49, 50 (D.C. Cir. 1949).
71. See CEPLAIR & ENGLUND, supra note 2, at 283-85.
72. See NAVASKY, supra note 3, at 82-83.
73. CEPLAIR & ENGLUND, supra note 2, at 285 (internal quotations omitted).
74. GOODMAN, supra note 24, at 230.
75. SCHRECKER, supra note 22, at 327 (internal quotations omitted). For the full text of the Waldorf Statement, see CEPLAIR & ENGLUND, supra note 2, at 445, app. 6.
76. POWERS, supra note 37, at 246-49. The American Legion held annual strategy sessions devoted to attacking the domestic Communist problem, which were attended by leaders of more than five dozen other diverse private groups and civic associations. See id. at 250. , .62. Id. at 249.
77. CEPLAIR & ENGLUND, supra note 2, at 329.
78. UOHNCOGLEY, REPORT ON BLACKLISTING 113 (1972). Messages carried by picketers included, This picture written by a Communist. Do not patronize." and "Communists are killing Americans in Korea. Fellow travelers support Communists. Yellow travelers support fellow travelers. Don't be a yellow traveler." Id. (internal quotations omitted). Numerous other private groups published newsletters expressly naming films which featured actors who were members of the Communist Party and urging moviegoers to avoid paying to hear messages promulgated by those who were "notorious for [their] red-slanted, red-starred films." Id. at 114.
79. See SCHRECKER, supra note 22, at 330-35 (discussing the effects of the blacklist within Hollywood and upon independent film producers).
80. See CEPLAIR & ENGLUND, supra note 2, at 398-425 (discussing the blacklist's effects and eventual termination). Over the next ten years, more than three-hundred men and women who had been publicly identified as Communists, or who refused to answer questions from HUAC about their political views and associations, were prevented from working in Hollywood. See SCHRECKER, supra note 22, at 330-35 (discussing the effects of the blacklist within Hollywood and upon independent film producers).
81. See, e.g., sources cited supra note 24.
82. See, e.g., Navasky, supra note 1, at viii-ix. Navasky notes, The cultural costs of McCarthyism have never been, perhaps cannot be, computed. How do you count, no less put a political, cultural or even commercial value on plays and screenplays unwritten, careers not undertaken or cut off at birth, families and psyches smashed from the pressures of uncertainty compounded by the realities of unemployment? How to quantify the cost of inventions not invented, ideas not explored, hypotheses untested.
83. Id. at viii; see also SCHRECKER, supra note 22, at 359-415 (describing harmful effects of McCarthyism); Mieklejohn, supra note 24.
84. As one of us has described the principle, The principle of epistemological humility dictates that in a democratic society, where the moral validity of the form of government is measured not by an external judgment as to the propriety of substantive outcomes but rather solely in terms of the process's consistency with representative norms, society may not properly presuppose substantive moral truth, untried ultimately to the direct or indirect choices of the electorate. Any other result would necessarily contradict the fundamental precept of democratic theory-namely, the requirement that governmental decisions be made with the consent of the governed. Pursuant to this principle, then, governmental paternalism in the regulation of expression is inherently inconsistent with the fundamental democratic notions of individual dignity and societal selfrule.
85. MARTIN H. REDISH, MONEY TALKS: SPEECH, ECONOMIC POWER, AND THE VALUES OF DEMOCRACY 6 (forthcoming 2001) (footnote omitted).
86. In light of both the so-called "Comintern documents," released by Russia after the end of the Soviet Union, and the so-called "Venona documents," previously classified FBI decrypted messages sent by Soviet agents to Moscow in the 1930s and 1940s and declassified in the mid-1990s, the currently prevailing view is that on numerous occasions American Communists facilitated or participated in Soviet espionage efforts. See generally HAYNES & KLEHR, supra note 22; ROMERSTEIN & BREINDEL, supra note 22.
87. It does appear, however, that the Hollywood Ten were, in fact, Communists. See SCHRECKER, supra note 22, at 326 (referring to "HUAC's devastating documentation of the CP affiliation of the unfriendly witnesses"); see also CAUTE, supra note 24, at 491-98.
88. The "McCarthy period," it should be noted, both preceded and postdated the Senator's career. "McCarthyism ... encompassed much more than the career of the Wisconsin senator who gave it a name. It was the most widespread and longest lasting wave of political repression in American history. ... That anticommunism crusade-McCarthyism-dominated American politics during the late 1940s and 1950s." SCHRECKER, supra note 22, at x.
89. See, e.g., Schacht v. United States, 398 U.S. 58 (1970) (holding that a congressional ban on unauthorized wearing of American military uniforms in a manner calculated to discredit the armed forces violates the First Amendment).
90. See, e.g., SCHRECKER, supra note 22, at 85; see also Ronald Radosh, The Two Evils, NEW REPUBLIC, May 11, 1998, at 47-48
91. ("If McCarthy saw all liberals as proto-Communists, Schrecker sees all anti-Communists as McCarthyites.... For Schrecker... there was only one kind of antiCommunism, and it was a variety of McCarthyism."); Sam Tanenhaus, The Red Scare, N.Y. REV. OF BOOKS, Jan. 14, 1999, at 44 ("Where Richard Gid Powers described 'many American anticommunisms,' [Schrecker] detects many McCarthyisms, each with its own agenda and modus operandi.").
92. For a perceptive and detailed exploration of the private antiCommunist movement, see generally POWERS, supra note 37.
93. See id. at 202-10 (describing liberal anti-Communism); see also ARTHUR M. SCHLESINGER, JR., A LIFE IN THE TWENTIETH CENTURY 394-417 (2000) (describing anti-Communist origins of Americans for Democratic Action).
94. POWERS, supra note 37, at 121-24.
95. Id. at 60-63; SCHRECKER, supra note 22, at 75-78. Schrecker describes the battle between American Socialists and American Communists as "part sibling rivalry and part total war." Id. at 76.
96. POWERS, supra note 37, at 109 ("American Catholics' solidarity with Catholic suffering under revolutionary regimes and the teachings of the popes kept Catholics from forgetting the issue of communism... so American Catholicism remained an anti-communist fortress."); see also id. at 173 (noting Catholics' "visceral anticommunism" and "concern for the Catholic populations of Eastern Europe").
97. See RICHARD H. ROVERE, SENATOR JOE MCCARTHY 8 (1959) ("[T]he social and economic order didn't interest [McCarthy] in the slightest.... [H]e was a species of nihilist... a revolutionist without any revolutionary vision ....").
98. See generally, e.g., SCHRECKER, supra note 22.
99. See discussion infra notes 155-56 and accompanying text.
100. See, e.g., Police Dep't v. Mosley, 408 U.S. 92, 95-96 (1972); see -4enerally Geoffrey R. Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. CHI. L. REV. 81 (1979).
101. See generally Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
102. See, e.g., Mark V. Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683, 686-88 (1985) (attacking the neutral principles theory).
103. We take no position on the factual issues disputed in the case concerning the extent to which the Boy Scouts actually did condemn homosexuality.
104. 120 S. Ct. 2446, 2451-58 (2000).
105. See, e.g., NAACP v. Alabama, 357 U.S. 449, 462 (1958).
106. The right of non-association is designed to facilitate the rights of group members both to receive and to disseminate messages of their choice. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 574-75 (1995) (holding that parade organizers can exclude marchers and parade float calculated to express political messages at odds with the expressive purpose envisioned by organizers); Hsu v. Roslyn Sch. Dist. No. 3, 85 F.3d 839, 859 (2d Cir. 1996) (allowing a high school Christian group to exclude non-Christians in order to maintain and foster the group's shared interest in particular speech); see also Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion) (discussing a listener's First Amendment right to receive information as a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom) (emphasis omitted)); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (It is now well established that the Constitution protects the right to receive information and ideas.); Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring) (The dissemination of ideas can accomplish nothing if otherwise willing addresses are not free to receive and consider them.).
107. In a separate line of non-association cases, the Supreme Court appears not to have been concerned with finding a negative impact on the affirmative exercise of associational rights as a prerequisite to the recognition of a right of non-association. See, e.g., Keller v. State Bar, 496 U.S. 1, 17 (1990) (holding that an integrated bar, under which state law required attorney membership, could not use members' dues to finance political and ideological activities with which members disagreed); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-36 (1977) (holding that a union could not expend a dissenting member's dues for ideological activities not germane to purpose for which compelled association was justified, namely, collective bargaining).
108. See POWERS, supra note 37, at 201.
109. See discussion supra notes 9-10 and accompanying text.
110. SCHRECKER, supra note 22, at 84.
111. Scholars have noted that the shunning practiced within civic associations fosters societal stability by providing an escape valve for the release of tensions and frustrations. See Nancy L. Rosenblum, Compelled Association: Public Standing, Self-Respect, and the Dynamic of Exclusion, in FREEDOM OF ASSOCIATION 75-102 (Amy Guttmann ed., 1998);
112. Yael Tamir, Revisiting the Civic Sphere, in FREEDOM OF ASSOCIATION, 214, 224-25 (Amy Guttmann ed., 1998).
113. Cf. N.Y. St. Club Ass'n v. City of New York, 487 U.S. 1, 13-15 (1988) (holding that the First Amendment right of non-association does not trump public accommodation laws requiring club to admit female and racial minority members); Hishon v. King & Spaulding, 467 U.S. 69, 78 (1984) (holding the same for a law firm).
114. See, e.g., United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (refusing to extend First Amendment protection to burning draft cards). We note that our analysis would not displace the Court's holdings that distinguish between protected speech, which advocates subversion and revolutions in the abstract, and unprotected speech, which consists of a concrete incitement to future lawless action. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (per curiam) (discussing the boundary between these forms of speech); Yates v. United States, 354 U.S. 298, 321-22 (1958) (same); cf. Martin H. Redish, Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger, 70 CALIF. L. REV. 1159, 1171-76 (1982) (criticizing this dichotomy as ephemeral).
115. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714-17 (1977) (holding that the First Amendment protects the right of a Jehovah's Witnesses to conceal the state slogan, Live Free or Die, on their license plates); W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding that the First Amendment protects the right of a school child not to pledge allegiance to the flag). In one decision, Pacific Gas & Electric v. Public Utility Commission, the Court's recognition of the right not to speak did appear to be intertwined with the goal of protecting a private entity's affirmative right to express contrary views, though the Court's analysis at no point expressly focused on the connection. 475 U.S. 1,12-17 (1986) (plurality opinion).
116. See, e.g., Wooley, 430 U.S. at 714-17; Barnette, 319 U.S. at 642.
117. One of us has previously explored the rationale for the prohibition of forced speech in another First Amendment context. For a discussion of this rationale, see generally Martin H. Redish & Kirk J. Kaludis, The Right of Expressive Access in First Amendment Theory: Redistributive Values and the Democratic Dilemma, 93 NW. U. L. REV. 1083 (1999).
118. Id. at 1113-18.
119. Id.
120. See Hsu v. Roslyn Sch. Dist. No. 3, 85 F.3d 839, 849-60 (2d Cir. 1996); Martin H. Redish & Howard M. Wasserman, What's Good for General Motors: Corporate Speech and the Theory of Free Expression, 66 GEO. WASH. L. REV. 235, 258-82 (1988).
121. In the compulsory dues cases, see supra note 90, the Supreme Court adopted such reasoning. E.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977) ([Alt the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State.).
122. It is conceivable that the government could require attendance at classes that included at least a certain level of values training as a prerequisite to governmental licensing in a particular type of employment, such as the practice of law, where attorneys are viewed as officers of the court. Even in this narrow context, we believe that government pushes the First Amendment envelope by requiring such attendance. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (invalidating the right-of-reply requirement imposed on newspapers). We cannot imagine that more widespread compulsory values training would pass constitutional muster. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ([T]here is no such thing as a false idea.); Stanley v. Georgia, 394 U.S. 557, 563 (1969) (Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.); Redish & Wasserman, supra note 102, at 258-82 (1988) (stating that society's commitment to self-determination dictates that the receipt of information remain free from selectively-imposed governmental control or manipulation); David L. Shapiro, Courts, Legislatures and Paternalism, 74 VA. L. REV. 519, 542-43 (1988) (noting that the First Amendment reflects [t]he antipaternalist strain in judicial thought).
123. See Hsu v. Roslyn Sch. Dist No. 3, 85 F.3d 839, 860 (2d Cir. 1996) (stating that a religious group can exclude those with differing religious views because one could reasonably expect that the prayers ... led by nonChristians would be different than prayers led by Christians). By the same reasoning, non-cognitive/communicative non-association would presumably also be constitutionally protected. Thus, where an individual chooses not to listen to the views of another because of some non-cognitive quality-for example, his race or religion-such choices would presumably also fall within the First Amendment's umbrella, though such applications of the nonassociation right do not appear to be as central as cognitively-based shunning of communicative interaction.
124. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969) (per curiam). This individual right also applies in the group setting. See Yates v. United States, 354 U.S. 298, 331 (1958) (noting that Congress cannot outlaw a particular group, it can only legislate against illegal acts caused by the group, and against members with the requisite specific intent to accomplish such acts); see also Scales v. United States, 367 U.S. 203, 227-30 (1961) (recognizing that CPUSA has both legal and illegal purposes); De Jonge v. Oregon, 299 U.S. 353, 364-65 (1937) (same); Stromberg v. California, 283 U.S. 359, 369-70 (1931) (same).
125. To characterize particular activity as pure expression does not necessarily imply that the activity constitutes protected expression under any circumstances. That question would be determined on the basis of a number of complex and controversial factors well beyond the scope of the present inquiry.
126. See discussion supra text accompanying note 8.
127. See discussion supra Part IV.A.
128. See United States v. O'Brien, 391 U.S. 367, 377 (1968) ( [Governmental regulation is sufficiently justified if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance ofthat interest.).
129. See Jeff Pearlman, At Full Blast, SPORTS ILLUSTRATED, Dec. 27,1999, at 60.
130. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911-12 (1982) (protecting pickets outside stores of businesspeople who opposed civil rights legislation).
131. See Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105 HARV. L. REV. 959, 963 (1992) ([T]he subject's identity derives from the objects and events deemed to have been authored by her.).
132. See supra note 90.
133. See discussion supra notes 99-102 and accompanying text.
134. SEE MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 9-52 (1984)
135. See supra notes 22-23, 67-68 and accompanying text.
136. See supra notes 37, 76 and accompanying text.
137. HILTON KRAMER, THE TWILIGHT OF THE INTELLECTUALS: CULTURE AND POLITICS IN THE ERA OF THE COLD WAR 78 (1999).
138. SCHRECKER, supra note 22, at 330 (internal quotation omitted).
139. Id. at 317; see also CAUTE, supra note 24, at 491 ([T]here was little evidence of Communist propaganda in such [war-time] films ....); DICK, supra note 1, at 151 ([M]ost of the films cited as examples of wartime Russophilia were not written by Communists.). But see CAUTE, supra note 24, at 491 (One should not, however, conclude that Hollywood Communists were inevitably tame Communists; it was merely that they understood the ground rules of the industry.... When Albert Maltz, another of the Ten, dared to suggest in print that a politically committed work of art ought to be first and foremost a work of art, he was torn limb from limb for his heresy by Dalton Trumbo, Herbert Biberman, Howard Fast and John Howard Lawson: Maltz duly recanted.).
140. The strongest evidence is that HUAC itself never produced any reports substantiating this charge. In fact, one HUAC member observed that he had heard no evidence of Communist propaganda, except that bankers were sometimes cast as villains. GOODMAN, supra note 24, at 228. According to historian Walter Goodman, various public officials publicly and persistently called upon HUAC chairman J. Parnell Thomas to produce the list of allegedly tainted movies that his Committee's investigators had compiled, yet this information was never brought forth. Id. Other commentators have argued that the scriptwriting process, during which numerous producers and studio executives reviewed each scene for potentially questionable materials, provided a further safeguard against clandestine influence by the Hollywood Ten. See CEPLAIR & ENGLUND, supra note 2, at 299-300; COGLEY, supra note 64, at 4243.
141. Dorothy B. Jones, Communism and the Movies: A Study of Film Content, in 1
142. JOHN COGLEY, REPORT ON BLACKLISTING 211-12 (1972). In fact, several movies made by the Hollywood Ten during the Nazi Germany-Soviet Alliance in the early 1940s nevertheless portrayed Germany in a negative manner. See id. at 210. According to the report's author,
143. [A]nalysis of the content of films credited to The Hollywood Ten during the years immediately following the close of World War II and during the early years of the Cold War, showed that none of these reflected in any manner the current viewpoint of the Communist Party. On the contrary, the films of The Ten during these years were, with a few exceptions, escapist Hollywood fare. In the case of those films which undertook to treat social themes,... the ideas expressed were those being treated and discussed generally throughout the country in magazines, newspapers, postwar novels, etc., and were also similar to those being portrayed at that time in other Hollywood motion pictures. In fact, on the whole the films credited to The Ten in the years immediately following the war were less political and less concerned with contemporary social and economic problems than the films this group made in earlier periods ....
144. Id. at 213-14. The author added that there was nothing in the films of The Ten which could be identified as Communist propaganda. Id. at 211.
145. See CEPLAIR & ENGLUND, supra note 2, at 65-66. Historians have approximated the number at closer to 145 members. Id. at 66.
146. Id. at 56-60.
147. See Jones, supra note 123, at 206.
148. CEPLAIR & ENGLUND, supra note 2, at 48.
149. GOODMAN, supra note 24, at 225.
150. CEPLAIR & ENGLUND, supra note 2, at 71.
151. GOODMAN, supra note 24, at 225.
152. Id.
153. Id. at 225.
154. NAVASKY, supra note 3, at 78.
155. CEPLAIR & ENGLUND, supra note 2, at 49.
156. GOODMAN, surpa note 24, at 228.
157. See id. at 214-16; COGLEY, supra note 64, at 43.
158. GOODMAN, supra note 24, at 224.
159. Id.
160. See id. at 213.
161. Id. at 225.
162. SCHRECKER, supra note 22, at 140; see also KLEHR ET AL., supra note 22, at 105-09, 195-99, 259-308 (discussing clandestine practices of the Communist Party during World War II).
163. SCHRECKER, supra note 22, at 140 (internal quotations omitted).
164. See Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 102-03 (1960) (holding that the government may sometimes removfe] the mask of anonymity so that the public can evaluate ... activities informedly against the revealed background of their character, nature, and connections); Redish & Wasserman, supra note 102, at 257 (The message's overall nature may change when the messenger changes; similarly, the degree of effectiveness and credibility may change depending on the source.);
165. Martin H. Redish, Product Health Claims and the First Amendment: Scientific Expression and the Twilight Zone of Commercial Speech, 43 VAND. L. REV. 1433, 1456-57 (1990) (arguing that listeners may be more skeptical of a claim made by a business corporation than by an objective observer).
166. See First Nat'1 Bank v. Bellotti, 435 U.S. 765, 791-92 (1978) (holding that citizens in a democracy may consider ... the source and credibility of the advocate); Buckley v. Valeo, 424 U.S. 1, 67 (1976) (The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.); United States v. Harriss, 347 U.S. 612, 625 (1954) (Congress ... has merely provided for a modicum of information from those who for hire attempt to influence legislation ....).
167. See SCHRECKER, supra note 22, at 299 (noting how public and private agencies collaborated in administering the economic sanctions of the McCarthy era).
168. See CAUTE, supra note 24, at 504 (noting that HUAC kept the studios on their toes).
169. Cf. David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 334 (1991) (noting that a government cannot suppress speech merely because it is too persuasive); Shapiro, supra note 104, at 542-43 (noting that the First Amendment reflects[t]he antipaternalist strain in judicial thought).
170. See, e.g., Healy v. James, 408 U.S. 169, 181 (1972); Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969) (per curiam).
171. See generally POWERS, supra note 37, at 191-233 (discussing views on Communism during the Cold War); supra text accompanying notes 33-37.
172. See supra note 61 and accompanying text.
173. CAUTE, supra note 24, at 521.
174. Id. at 525.
175. Id. at 530 (Particularly bewildered were the quite numerous victims whose names or faces were confused with those on the list. [For example,] [t]he actor Everett Sloan suffered because his name resembled that of the scriptwriter and self-professed former Communist Allen E. Sloane.); see also CEPLAîR & ENGLUND, supra note 2, at 259 (noting that many supposed Communists identified by Jack Warner had not only never been Communists, but were known for their criticism of communism). But see POWERS, supra note 37, at 249 (noting that blacklisters were about 90 percent correct on factual material alleged).
176. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-50 (1974) (dealing with private figures discussing issues of public concern); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265-66, 279-83 (1964) (dealing with public figures discussing issues of public concern). We believe that the tort of public disclosure of private facts would be unavailing in most situations, given the importance to citizens of obtaining information designed to facilitate nonassociational choice. See RESTATEMENT (SECOND) OF TORTS §652D (1977);
177. Jonathan B. Mintz, The Remains of Privacy's Disclosure Tort: An Exploration of the Private Domain, 55 MD. L. REV. 425, 445 (1996) (noting that public information is that which is of general economic, cultural, social or similar public interest);
178. James R. Beattie, Jr., Note, Privacy in the First Amendment: Private Facts and the Zone of Deliberation, 44 VAND. L. REV. 899, 913-14 (1991) (Public curiosity does not create a legitimate public interest unless the information transmitted relates to the function of citizens in their sovereign capacity.);
179. Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations, 104 HARV. L. REV. 1835, 1845 n.67 (1991)
180. (stating that privacy deals with child rearing and education; with family relationships; with procreation; with marriage; with contraception; and with abortion) (quoting Bowers v. Hardwick, 478 U.S. 186, 190 (1986)).
181. See, e.g., SCHRECKER, supra note 22, at 33 (Especially during the 1940s and early 1950s, before the North had been fully desegregated, rankand-file Communists threw themselves into the struggle against racial dis-crimination.).
182. See generally Vaughn D. Bornet, Historical Scholarship, Communism, and the Negro, 37 J. NEGRO HIST. 304 (1952).
183. KRAMER, supra note 119, at 71. Referring specifically to the victims of the Hollywood blacklist, Kramer describes them as Communists and fellowtravelers who remained abject in their loyalty to Stalin while refusing to acknowledge their political affiliations and beliefs. Id. at 70.
184. KRAMER, supra note 119, at 73.
185. Ring Lardner, Jr., served as an example of how the shunning issue has arisen in the treatment of anti-Communists. According to Navasky,
186. Frances Chaney, Ring Lardner Jr.'s actress-wife doesn't believe in . speaking to informers. So one day in the mid-60s when Ring's old Hollywood chum, the writer Bud Schulberg, encountered the Lardners at Sardi's restaurant, he had to be nonplussed. While Frances turned her back on him, Ring, whom Budd recruited into the Communist Party in the 1930s, and named as a Communist before [HUAC] in the 1950s, put out his hand and gave a friendly hello.
187. When I asked Lardner about this some years later he simply said, I don't believe in blacklisting. Navasky, supra note 1, at vii.
188. VAUGHN, swpra note 2, at 113.
189. E.g., Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969) (per curiam).
190. See generally ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1960).
191. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 259-70 (1964).
192. See Am. Communications Ass'n v. Douds, 339 U.S. 382, 431 (1950) (Jackson, J., concurring in part) (arguing that Communists infiltrated labor unions only by concealing the Communist tie);
193. HAYNES & KLEHR, supra note 22, at 57-85 (describing secrecy practices of CPUSA); SCIIRECKER, supra note 22, at 77 (referring to Communists as secretive); IRVING HOWE & LEWIS COSER, THE AMERICAN COMMUNIST PARTY: A CRITICAL HISTORY 356-63 (2d prtg. 1962) (discussing Communist infiltration of the National Negro Congress and American Student Union).
194. See supra text accompanying notes 19-20.
195. When private individuals expose the fact of another's private political association, such actions could not themselves be considered First Amendment violations because of the absence of state action. However, the argument in text dictates that such exposure by private individuals is itself protected by the First Amendment, thereby constitutionally precluding government from prohibiting or punishing such acts of exposure either through statute or common law. See RESTATEMENT (SECOND) OF TORTS §652D (1977); Mintz, supra note 154, at 445; Beattie, supra note 154, at 913-14.
196. It should be noted that we take no position on the level of constitutional protection to be extended to the methods used to discover private political associations. For example, the First Amendment would clearly not extend to physical intrusions into another's private office or files. See Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979) (holding that no constitutional protection for distribution of materials unlawfully obtained).
197. See, e.g., WOODROW WILSON, CONGRESSIONAL GOVERNMENT 303 (1885) (The informing function of Congress should be preferred even to its legislative function.).
198. Barenblatt v. United States, 360 U.S. 109, 137-62 (Black, J., dissenting).
199. See, e.g., Watkins v. United States, 354 U.S. 178, 200 (1957).
200. See, e.g., Barenblatt, 360 U.S. at 157-58 (Black, J., dissenting) (collecting statements from Committee members); Barsky v. United States, 167 F.2d 241, 256-58 (D.C. Cir. 1947) (Edgerton, J., dissenting) (same); United States v. Josephson, 165 F.2d 82,100 (2d Cir. 1947) (Clark, J., dissenting) (same);
201. Note, Constitutional Limitations on the Un-American Activities Committee, 47 COLUM. L. REV. 416, 427-28 (1947) (same).
202. Individualized inquiries, by their very nature, are almost certain to chill the exercise of speech by members of unorthodox groups. Whether it was during the Red Scares of the 1920s, the McCarthy era, or the student protest movements, history has shown that those investigated are the least likely of all to expect protection from the political process. See Redish & Kaludis, supra note 99, at 1110-11. In addition, even the judiciary failed to perform adequately its countermajoritarian institutional role in restraining the committee's excesses.
203. See Alan I. Bigel, The First Amendment and National Security: The Court Responds to Governmental Harassment of Alleged Communist Sympathizers, 19 OHIO N.U. L. REV. 885, 899-924 (1993).
204. The practices of the committee and the media will magnify the chilling effect. The witness will testify under oath, with the risk of imprisonment for contempt looming overhead, before a committee with nearly plenary investigative authority. See 2 U.S.C. § 192 (1994) (contempt of Congress statute). Congress is unlikely to practice active oversight of the committee, CARR, supra note 24, at 308-19, and the media, with its insatiable appetite for conflict and sensationalism, is likely to publish the most damning facts and innuendo coming to light, and to contribute further to the coercive, suppressive nature of the investigation, see THOMAS E. PATTERSON, Our OF ORDER 121,140-42 (1993) (criticizing the media's emphasis on personal attacks and sensationalism).
205. See R.A.V. v. City of St. Paul, 505 U.S. 377, 381-90 (1992); Mclntyre v. Ohio Elections Comm'n, 618 N.E.2d 152, 157 (Ohio 1993) (Wright, «L, dissenting), rev'd, 514 U.S. 334 (1995) (discussing school board's viewpoint-based application of literature disclosure statute); Christopher R. McFadden, Comment, Integrity, Accountability, and Efficiency: Using Disclosure to Fight the Appearance of Nepotism in School Board Contracting, 94 NW. U. L. REV. 657, 687 (2000) (discussing sporadic application of supposedly mandatory statewide disclosure regulations).
206. We should note that HUAC could not properly have justified its actions on grounds of exposing citizens to promote national security, since its legislatively authorized function was purely to investigate speech activitiesnot breaches of national security. See H.R. Res. 282, 75th Gong., 83 GONG. REC. 7568 (1938) (authorizing the Committee to investigate the extent, character, and objects of un-American propaganda activities ... [and its] diffusion within the United States).
207. Moreover, under separation-of-powers theory, a freestanding investigative committee solely designed to expose activity impermissibly intrudes on the powers delegated to the executive and judicial branches of government. Although Progressive politicians argued that [t]he informing function of Congress should be preferred even to its legislative function, WILSON, supra note 168, at 303; see also United States v. Rumley, 345 U.S. 41, 43-44 (1953) (discussing Wilson's views), this power was notoriously abused by Parliament, and the Court was unwilling to presume that the Framers would have granted such awesome plenary power to Congress, see Watkins v. United States, 354 U.S. 178, 188-200 (1957) (holding that the congressional investigative power must be undertaken with an eye towards future legislation or in furtherance of other Article I powers such as impeachment or the judging of elections and qualifications of members of Congress); McGrain v. Daugherty, 273 U.S. 135, 172-75 (1926) (holding the same);
208. see also James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 168-206 (1927) (listing and discussing various congressional investigations undertaken throughout the eighteenth and nineteenth centuries).
209. The Court refused to question the true motive of committee members in asking sensitive questions and presumed the Committee to be acting in furtherance of wholly legitimate purposes. See Wilkinson v. United States, 365 U.S. 399, 408-15 (1961). This refusal, especially in the face of repeated statements by various individual HUAC members that they were concerned less with proposing legislation than revealing the Communist background of witnesses, provoked frequent criticism as well as attempts to devise alternate methods for judicial review. See, e.g., Uphaus v. Wyman, 360 U.S. 72, 99-107 (1959) (Brennan, J., dissenting) (arguing that the Court should infer an ulterior motive by analyzing statements of Committee members and the Committee's overall behavior over the course of several years); id. at 108 (Black, J., dissenting) (same); Stamler v. Willis, 415 F.2d 1365, 1369 (7th Cir. 1969) (same);
210. Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacriβce, 1993 SUP. CT. REV. 1, 33 (arguing that courts should presume unconstitutional intent whenever a committee asks sensitive questions touching on First Amendment freedoms).
211. The First Amendment operates with an essentially pessimistic view of human nature and human institutions and, therefore, views First Amendment-based inquiries as attempts by the power structure to accrete additional authority and to silence dissenting voices. Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521, 541. Under this view, the First Amendment interposes a direct check on the actions of the government, thereby squarely creating a conflict between majoritarian politics and individual rights. See id. at 539-41.
212. See, e.g., OWEN M. FlSS, LIBERALISM DIVIDED 19 (1996); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 28-46 (1993).
213. For a discussion relating to this concern in other free speech contexts, see Redish & Kaludis, supra note 99, at 1108-13.
214. See DeGregory v. New Hampshire, 383 U.S. 825, 826-27 (1966) (discussing how state's investigating committee repeatedly interrogated witness who provided answers that the committee deemed unsatisfactory); Sweezy v. New Hampshire, 354 U.S. 234, 253 (1957) (discussing how statewide investigative committee may chill not only the witness but also society generally from exercising First Amendment interests); Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1, 41-44 (1991) (detailing repeated incidents of violence, economic reprisal, and social shunning precipitated by one's exposure as a Communist).