William O. Douglas

“ Legislatures and governments have the right to protect themselves. They may judge as to the appropriate means of meeting force directed against them, but as to the propriety of the exercise of the ultimate right of revolution, there, as John Locke says, 'The people shall be judge.' Second Treatise on Civil Government, § 240. To forbid the teaching of the propriety of revolution, even where the teacher believes his own lesson, is to hinder the people in the free exercise of this great sovereign right. ”

“ The constitutions of 15 States have, at one time or another, made specific provision for the right of revolution by reserving to the people the right to 'alter, reform or abolish' the existing frame of government. ”

“ There is here no charge of conspiracy, no charge of any overt act to overthrow the Government by force and violence, no charge of any other criminal act. The charge is being a 'member' of the Communist Party, 'well-knowing' that it advocated the overthrow of the Government by force and violence, 'said defendant intending to bring about such overthrow by force and violence as speedily as circumstances would permit.' That falls far short of a charge of conspiracy. Conspiracy rests not in intention alone but in an agreement with one or more others to promote an unlawful project. ”

“ We legalize today guit by association, sending a man to prison when he committed no unlawful act. Today's break with tradition is a serious one. It borrows from the totalitarian philosophy. As stated by O'Brian, National Security and Individual Freedom (1955) , pp. 27-28:
'The Smith Act of 1940 made it unlawful for any person to be or to become a member of or affiliate with any society, group, or assembly which teaches, advocates, or encourages the overthrow or destruction of any government in the United States by force or violence. ”

“ Jefferson wrote to Madison on December 20, 1787: [7]
'I own, I am not a friend to a very energetic government. It is always oppressive. It places the governors indeed more at their ease, at the expense of the people. The late rebellion in Massachusetts has given more alarm, than I think it should have done. Calculate that one rebellion in thirteen States in the course of eleven years, is but one for each State in a century and a half. No country should be so long without one. ”

“ What is 'dangerous behavior' that must be suppressed in its talk-stage has had a vivid history even on this continent. The British colonial philosophy was summed up by Sir William Berkeley, who served from 1641 to 1677 as Virginia's Governor: '* * * I think God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. ”

“ If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.'
'This statement by Madison, along with all the rest of his speech, is so devastating to the 'balance theory' that efforts have been and are being made to discredit its authenticity. ”

“ He wrote that 'The natural progress of things is for liberty to yield and government to gain ground.' [6] The formula he prepared for a society where ideas flourished was not punishment of the unorthodox but education and enlightenment of the masses. ”

“ In Turkey, where the sole nod of the despot is death, insurrections are the events of every day. Compare again the ferocious depredations of their insurgents, with the order, the moderation and the almost self-extinguishment of ours. And say, finally, whether peace is best preserved by giving energy to the government, or information to the people. ”

“ If the citizens of the United States persist in being afraid, the real rulers of this country will be fanatics fired with a zeal to save grown men from objectionable ideas by putting them under the care of official nursemaids.' Id., 156.
In recent years we have been departing, I think, from the theory of government expressed in the First Amendment. We have too often been 'balancing' the right o speech and association against other values in society to see if we, the judges, feel that a particular need is more important than those guaranteed by the Bill of Rights. ”

“ Among them were comments to the effect that the Party line was that the Negroes in the South and the working classes should be used to foment a violent revolution; that a Communist government could not be voted into power in this country because the Government controlled communication media, newspapers, the military, and the educational systems, and that force was the only way to achieve the revolution; that if a depression were to come the Communist America would be closer at hand than predicted by William Z. Foster; that the revolution would come within a generation ”

“ Sedition or treason in the realm of politics and heresy in the eccelesiastical field ha long centered on beliefs as the abhorrent criminal act. The struggle on this side of the Atlantic was to get rid of that concept and to punish men not for what they thought but for overt acts against the peace of the Nation. ”

“ Of course, government can move against those who take up arms against it. Of course, the constituted authority has the right of self-preservation. But we deal in this prosecution of Scales only with the legality of ideas and beliefs, not with overt acts. The Court speaks of the prevention of 'dangerous behavior' by punishing those 'who work to bring about that behavior.' That formula returns man to the dark days when government determined what behavior was 'dangerous' and then policed the dissidents for tell-tale signs of advocacy. ”

“ The perils sought to be suppressed are regularly overestimated. History shows in one example after another how excessive have been the fears of earlier generations, who shuddered at menaces that, with the benefit of hindsight, we now know were mere shadows. ”

“ The crime of belief-presently prosecuted-is a carryback to the old law of treason where men were punished for compassing the death of the King. That law, which had been employed for 'suppression of political opposition or the expression of ideas or beliefs distasteful to those in power,' Hurst, Historic Background of the Treason Clause, 6 Fed.B.J. 305, 307, was rejected here, and the treason clause of our Constitution was 'most praised for the reason that it prevented the use of treason trials as an instrument of political faction.' Id., 307. ”

“ The older constitutions often add a clause which shows the roots of these provisions in the right of revolution. 'The doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind,' the New Hampshire Const., Pt. ”

“ Men genuinely devoted to worthy ends sometimes endorse efforts to force unanimity of sentiment, not because they consciously espouse u thoritarianism, but because they hope thus to assure maximum support for the nation and its people. ”

“ Even the Alien and Sedition Laws-shameful reminders of an early chapter in intolerance-never went so far as we go today. They were aimed at conspiracy and advocacy of insurrection and at the publication of 'false, scandalous and malicious' writing against the Government, 1 Stat. ”