In 1947, Congress added Section 9(h) to the National Labor Relations Act; this section required all labor union officers to sign annual affidavits stating that they did not belong to the Communist Party or support the unlawful overthrow of the U.S. government. Unions whose officers refused to sign noncommunist affidavits were denied access to the National Labor Relations Board for relief from unfair labor practices. Congress justified the affidavit requirement as necessary to protect the free flow of Interstate Commerce from political strikes. In American Communication Association v. Douds, the Supreme Court upheld the statute despite noting that it ‘‘discourag[ed] the exercise of political rights protected by the First Amendment.’’
In an opinion written by Chief Justice Vinson, the Court concluded that the affidavit provision was designed by Congress to regulate harmful conduct in the form of political strikes, but not harmful speech. Because the statute had what the Court viewed as only an indirect effect on speech, the Court applied a balancing test, rather than the clear and present danger test, to determine the requirement’s constitutional validity. After considering the competing interests, the majority concluded that protecting the national economy from disruptive political strikes outweighed any burden on the ability of a ‘‘relative handful’’ of union members to express their political views.
The holding’s precedential value today is questionable. While not explicitly overruling Douds, the Court invalidated a later version of Section 9(h) as an unconstitutional bill of attainder in United States v. Brown, 381 U.S. 437 (1965).
NICOLE B. CÁSAREZ
References and Further Reading
Cases and Statutes Cited