The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Monday, January 05, 2004

The National Alliance, its Florida billboard ad and the First Amendment

A piece in Pandagon draws my attention to a controversy down Orlando way (Orlando Sentinel January 5):
On Florida's Turnpike, just over the Lake County line in Sumter County, there's a plain billboard with a black background and big block letters in the style of the "Got Milk?" ads.

It reads in part "WHO RULE$ AMERIKA?" Then it gives a Web address.

That goes to the home page of the National Alliance, a group founded in the early 1970s as a spinoff of the American Nazi Party. (Spelling America with a K is a nod to German Nazi leader Adolf Hitler.)

What is disputed is the following assertion:
Sumter officials and the Florida Department of Transportation, which regulates signs on the turnpike, say they're powerless to do anything.

The ADL have a page on the National Alliance (undated, apart from a 2000 copyright notice) which states that
A new ADL investigation reveals that the neo-Nazi National Alliance (NA) is the single most dangerous organized hate group in the United States today. In the past several years, dozens of violent crimes, including murders, bombings and robberies have been traced to NA members or appear to have been inspired by the group's propaganda. At the same time, the National Alliance's membership base has experienced major growth, with its numbers more than doubling since 1992.

So, is it right that the First Amendment precludes the ad from being removed by the authorities?

By coincidence, Eugene Volokh has a piece in the National Review (January 5) on various misunderstandings to which the Amendment has given rise. One of the areas where it has been hemmed in is that of national security.

Cases arising under the Espionage Act of 1917, say, or the Smith Act (Alien Registration Act) of 1940 and McCarran Act (Internal Security Act) of 1950, have laid down a limited scope to First Amendment freedoms.

And merely because those Acts may have been repealed [1] doesn't mean the principles laid down by the courts on the scope of the First Amendment in relation to security have gone with them, of course [2].

For instance, on the Smith Act, the US Supreme Court 1951 decision in Dennis (CPUSA membership convictions upheld) was followed by the 1957 decision in Yates where convictions for membership of the California Party were overturned. My understanding, from the briefest of squints at the cases, is that the grounds for the Yates decision did not involve overturning the basis of the decision in Dennis - it operated as a Merchant of Venice sort of judgement in the Yates case itself, establishing conditions for a successful Smith Act prosecution which would be nigh impossible to fulfil [3].

Would it be feasible for USG to tailor legislation banning the activities and penalising membership of the National Alliance so as to pass muster under the First Amendment?

A cursory search fails to turn up any list of US domestic organisations which have been declared illegal under US law. (The Patriot Act, for instance, seems, in general, to target foreign organisations only. Chapter 23 (Internal Security) of Title 50 of the US Code looks mostly fried. What happened to the Smith Act, already?)

In particular, I can't trace any law equivalent to the list of Foreign Terrorist Organizations designated under section 219 of the Immigration and Nationality Act which bans domestic terror groups.

But all that leaves the question of the advert on the billboard. On its own, the advert seems to me to be unexceptionable on First Amendment grounds - can its association with the NA (a legal organisation, we're saying) deprive it of protection and allow the authorities to take it down? I doubt that, somehow - further particulars required!

  1. Have they been repealed? Not a rhetorical question - my guess is the time for researching the point would be disproportionately long.

  2. Findlaw has a page on national security and the First Amendment, which is a useful place to start.

  3. In my beginner's guide on these matters, The Constitution in Crisis Times: 1918-1969 by Paul Murphy (p328), it says:
    In a decision so carefully written and fastidious in its drawing of legal distinctions as to be virtually undecipherable by the average layman, Harlan brought an abrupt halt to further prosecutions under the Smith Act's organizing proscriptions.


The Findlaw review of the various tests applied to First Amendment cases seems to indicate a less than happy situation: the Dennis case was decided on the clear and present danger test, which has since fallen out of favour. A variety of other tests - vagueness, overbreadth, etc - are currently used.

The problem is to know to what extent the selection of alternative tests by the Supreme Court result in their implicitly overruling earlier decisions arrived at on the basis of different tests.

The page notes, under the side-heading Is There A Present Test? the 1969 Brandenberg case on an anti-syndicalist law, which extends First Amendment protection to the advocacy of violence, except where
directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The (very short) opinion of the Court refers approvingly of Dennis as having overruled the decision on a similar law in
Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494 , at 507 (1951).

And yet Dennis has just been cited as an example of the use of the old-fashioned clear and present danger test!

Confused? You should be...


It seems that there was a proposal made, in the wake of the Oklahoma City bombing, to extend the RICO law (18 USC 1961 et seq, Chapter 96 of Title 18) to apply directly to terrorism - in the shape of HR 896 (104thC). There is a Cato Institute submission to the Senate Judiciary Committee (on the companion S 390, I surmise) dealing with the matter. Neither bill went beyond committee hearings.

Another piece of terrorism legislation was enacted in 1996 - S 735 which became PL 104-32: this does not include (as did HR 896) additions to the definition of racketeering activities in 18 USC 1961.

[Puzzling me: the version of S 735 as agreed by the Senate did have amendments to §1961 (in §624) - so presumably they must have been taken out of S 735 at the request of the House!]

So what happened? Why the Grand Old Duke of York routine with RICO?

Mother of Mercy...

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