¹ All except Arizona, Georgia, Louisiana, Maine, Missouri, North Dakota, Oregon, South Carolina, Texas, and Mississippi. Mississippi deserted the ranks in 1950 by enacting a law of this type.

² Michie's Tennessee Code Annotated, 1938, Sec. 11026.

³ Though some of the laws mentioned here and in following paragraphs were not enacted for the purpose of curbing Communist activities, they deserve inclusion in any reckoning of anti-Communist legislation. Regardless of the stimulus that prompted enactment of them, they are today a weapon with which to suppress Communists.

⁴ Dowell, Eldridge F., A History of Criminal Syndicalism Legislation in the United States (Baltimore, 1939)Google Scholar; Chafee, Zechariah Jr., Free Speech in the United States (New York, 1941)CrossRefGoogle Scholar.

⁵ All except Alabama, Connecticut, Delaware, Idaho, Iowa, Kentucky, Maine, Minnesota, Mississippi, Missouri, Nebraska, Ohio, Tennessee, Virginia, Wisconsin, and Wyoming. Tennessee and Virginia require special oaths of teachers, but the requirement is not specifically imposed by any state law. Mississippi passed a loyalty law in 1950.

Included in the count of thirty-two states are all which require any pledge of allegiance of teachers. Included, too, are Utah, which requires a loyalty declaration only of members of the State Police Highway Patrol, and Louisiana, which requires it of those serving in the State Guard.

Two helpful surveys have been made by the National Education Association, Teachers' Oaths and Related Stale Requirements and Local and State Restraints Upon Alleged Subversive Activities of School Employees (Washington, 1949)Google Scholar.

⁶ Arkansas, California, Delaware, Illinois, Florida, Indiana, Maryland, New Jersey, Oklahoma, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Wisconsin, Wyoming, and Alabama. Alabama achieves the result of excluding the Communist Party from the ballot by denying it the status of a political party. Though the New Jersey law was found unconstitutional (p. 566, below), the number remains seventeen since the Mississippi anti-Communist law enacted in 1950 bars subversives from the ballot. Ward, H. F., “The Communist Party and the Ballot,” Bill of Rights Review, Vol. 1, pp. 286–292 (Summer, 1941)Google Scholar; American Civil Liberties Union, Minority Parties on the Ballot (New York, 1946)Google Scholar; Baker, Sidney, “May the States, By Statute, Bar Subversive Groups From the Ballot?” Notre Dame Lawyer, Vol. 25, pp. 319–329 (Winter, 1950)Google Scholar. This last article is not completely up to date in the factual information it contains.

⁷ Thirty-three, according to the calculation of the Maryland Commission on Subversive Activities in its Report to Governor William Preston Lane, Jr. and the Maryland General Assembly (Baltimore, 1949), p. 75Google Scholar. The constitutional issues raised by such laws were considered in Stromberg v. California, 283 U.S. 359 (1931).

⁸ California, Illinois, Massachusetts, New York, Washington, and Wisconsin. In 1950 Mississippi directed a legislative committee to investigate subversive activities and make annual reports to the State legislature.

⁹ California and Michigan. The New York registration law, designed to curtail the activities of the Ku Klux Klan, might be added here. Thompson's Laws of New York, 1939, Secs. 53–56.

¹⁰ In addition to the references cited in earlier footnotes, the following works contain useful information bearing on anti-subversive measures which have been adopted by the states: Chafee, Zechariah Jr., The Inquiring Mind (New York, 1928)Google Scholar; Kirchwey, G. W., A Survey of the Workings of the California Criminal Syndicalism Law (New York, 1926)Google Scholar; American Civil Liberties Union, The Operation of the Criminal Syndicalism and Sedition Laws (New York, 1933)Google Scholar; Cohen, M. and Fuchs, R. F., “Communism's Challenge and the Constitution,” Cornell Law Quarterly, Vol. 34, pp. 182–219, 352–375 (1948)Google Scholar; Groner, S. B., “State Control of Subversive Activities in the United States,” Federal Bar Journal, Vol. 9, pp. 61–94 (1947)Google Scholar; “Restraints on American Communist Activities,” University of Pennsylvania Law Review, Vol. 96, pp. 381–401 (1948)CrossRefGoogle Scholar; “Control of Communist Activities,” Stanford Law Review, Vol. 1, pp. 85–107 (1948)CrossRefGoogle Scholar. Several studies of the attempts of state and national governments to combat communism are being prepared by a number of scholars under the general direction of Robert E. Cushman of Cornell University and Walter Gellhorn of the Columbia Law School. When published, they should be valuable additions to the literature of political science.

Summaries of the anti-subversive legislation in effect in the states at the date of publication of their works are given in appendices to Chafee's and Dowell's books (Note 4, above) and in the report of the Maryland Commission on Subversive Activities (note 7, above).

Current developments in this field are most likely to appear in the State Law Index, published biennially by the State Law Section, Legislative Reference Service of the Library of Congress; the annual reports and occasional literature of the American Civil Liberties Union (its 1949 report is entitled In the Shadow of Fear); the New York University School of Law's Annual Survey of American Law (particularly the section “Civil Rights”). In several states the journal of a leading law school gives a summary of the output of each session of the state legislature.

¹¹ All-Campus Committee, University of Chicago, The Great Investigation (Chicago, 1949)Google Scholar; Laird Bell, “Are We Afraid of Freedom?” American Association of University Professors Bulletin, Vol. 35, pp. 301–312 (Summer, 1949)Google Scholar; Kogan, Herman, “The Sucker State Sees Red,” New Republic, Vol. 120, pp. 18–19 (April 11, 1949)Google Scholar; O'Gara, James, “What Price Anti-Sedition?” Commonweal, Vol. 50, pp. 312–315 (July 8, 1949)Google Scholar.

The only complaint against the two institutions not completely exploded was the charge made by a legislator that the student lobbyists lacked “that clean-cut American look.”

¹² Williams, Carey Mo, “Mr. Tenney's Horrible Awakening,” Nation, Vol. 169, pp. 80–82 (July 23, 1949)Google Scholar.

¹³ Laws of the State of New York, 1949, Ch. 481.

¹⁴ Laws of the State of New York, 1949, Ch. 482.

¹⁵ Acts of the Forty-Ninth Legislature of West Virginia, 1949, Ch. 39.

¹⁶ Page's Ohio General Code Annotated, Cumulative Supplement, 1949, Secs. 1345–6, d (2a).

¹⁷ Rhode Island Public Laws, Ch. 2352, Sec. 7½.

¹⁸ Laws of the State of New Mexico, 1949, Ch. 312.

¹⁹ Thompson's Laws of New York, 1942, Sec. 12-a; Thompson's Laws of New York, 1949 Supplement, Sec. 3021.

²⁰ Laws of the State of New York, 1949, Ch. 360.

²¹ General and Special Laws of the State of Texas, 1949, Ch. 621. The Texas legislature had the distinction of passing more anti-Communist measures than any other state law-making body, four laws and one joint resolution. In the appropriations bill for state institutions of higher learning, a provision was incorporated directing the dismissal of any faculty member subscribing to “communism or any other form of totalitarian State doctrine.” Ibid., Ch. 584. By joint resolution the legislature urged the national government to combat Communism by breaking the Berlin Blockade, preventing Stalin from controlling China, dismissing from the State Department the architects of our China policy, and pressing the formation of a federation of European democracies. House Concurrent Resolution 89, ibid.

²² Session Laws of the State of Washington, 1949, Ch. 32.

²³ The various laws discussed in the succeeding paragraphs are all indicated here:

Florida—General Acts and Resolutions Adopted by the Legislature of Florida, 1949, Ch. 25046.

Georgia—Acts and Resolutions of the General Assembly of the State of Georgia, 1949, No. 224.

Kansas—State of Kansas, Session Laws, 1949, Ch. 246.

Maryland—Laws of the State of Maryland, 1949, Ch. 86.

Massachusetts—Laws of Massachusetts, 1949, Ch. 619.

New Jersey—Acts of the 173rd Legislature of the State of New Jersey, 1949, Chs. 21–25.

New Mexico—Laws of the State of New Mexico, 1949, Ch. 45.

Oregon—Oregon Laws, 1949, Ch. 311 (prohibiting subversives from state employment); Sec. 14, Ch. 434 (requiring non-Communist oath of members of the Civil Defense Agency).

²⁴ Maryland's Ober Act contains criminal penalties as well as exclusion from public employment for members of such organizations. Its criminal sections are treated below, p. 564 ff.

²⁵ Oregon also aimed to keep Communists out of its newly created Civil Defense Agency by requiring a loyalty oath of all its members.

²⁶ General and Special Laws of the State of Texas, 1949, Ch. 131 (barring Communist Party from ballot); ibid., 1949, Ch. 232 (requiring loyalty affidavit of candidates).

²⁷ The Kansas statute provides maximum penalties of a $10,000 fine and/or 10 years imprisonment; that of Massachusetts, $10,000 and/or one year. The loosely drawn Massachusetts law appears to permit the exaction of this stiff penalty if a public employee fails to file a copy of his oath with the proper official.

²⁸ The language of the statute, though paraphrased for brevity, is generally adhered to in this passage.

²⁹ In order to convict a member of an illegal organization, the member's knowledge of the group's illegal purpose must be proved.

³⁰ In a fourth state, Massachusetts, an abortive proceeding took place. A judge of the State Supreme Court denied the petition of the leaders of the Communist Party of the State to enjoin state officials from enforcing the loyalty law. The validity of the law was not passed on. The complainants have not so far taken advantage of the opportunity to argue their petition. New York Times, October 20, 1949, p. 26.

³¹ By a special dispensation granted by the Act for the 1949 elections only, the names of candidates who refused to execute the oath were permitted to appear on the official ballot with the notation beside them, “Refused oath of allegiance.”

³² Imbrie v. Marsh, 68 Atl. Rep. 2d 761 (1949).

³³ Imbrie v. Marsh, 71 Atl. Rep. 2d 352 (1950).

³⁴ Imbrie v. Marsh, 68 Atl. Rep. 2d, 761–765, at 764 (1950).

³⁵ Lancaster v. Hammond, Frankfeld v. Hammond, Baltimore Circuit Court #2; Sherbow, J., Daily Record (Baltimore), August 16, 1949Google Scholar.

³⁶ Maryland's constitution, unlike New Jersey's, contains the express prohibition: “nor shall the legislature prescribe any other oath of office than the oath prescribed by this Constitution.” Declaration of Rights, Art. 37.

³⁷ Hammond v. Lancaster, 71 Atl. Rep. 2d 474 (1950); Hammond v. Frankfeld, 71 Atl. Rep. 2d 483 (1950).

³⁸ Thompson v. Wallin, L'Hommedieu v. Board of Regents of the University of the State of New York, 93 N.Y.S. 2d 274 (1949); Lederman v. Board of Education, 95 N.Y.S. 2d 114 (1949).

³⁹ L'Hommedieu v. Board of Regents of the University of the State of New York, 95 N.Y.S. 2d 443; Thompson v. Wallin, 95 N.Y.S. 2d 784 (1950); Lederman v. Board of Education, 96 N.Y.S. 2d 466 (1950).

^39a Dworken v. Collopy, 91 N.E. Rep. 2d 564 (1950).

⁴⁰ Maryland's law mentions the Communist Party in another section, but the Court did not rely on this second reference in reaching its decision.

⁴¹ That statutes other than criminal laws may offend against this provision of the constitution is indicated in Cummings v. Missouri, 4 Wall. 277 (1867); Ex parte Garland, 4 Wall. 333 (1867); United States v. Lovett, 328 U. S. 303 (1946).

⁴² 274 U. S. 357 (1927).

⁴³ Partly on the very same point New Mexico's criminal syndicalism law was invalidated. State v. Diamond, 202 Pac. Rep. 988 (1921).

⁴⁴ Gitlow v. People of New York, 268 U. S. 652 (1925); Burns v. United States, 274 U. S. 328 (1927); Whitney v. California, 274 U. S. 357 (1927); Dunne v. United States, 138 Fed, Rep. 2d 137 (1943), cert. den. 320 U. S. 790, 814 (1943); United Stales v. Foster, 80 F. Sup. 479 (1948). An impressive number of decisions by state courts to the same effect is collected in American Law Reports Annotated, Vol. 1, pp. 336 ff. (1919)Google Scholar; Vol. 20, pp. 1535 ff. (1922); Vol. 73, pp. 1494 ff. (1931). See also “Criminal Syndicalism and Civil Liberties,” Illinois Law Review, Vol. 36, pp. 357–361 (1941)Google Scholar.

⁴⁵ Fiske v. Kansas, 274 U. S. 380, 386 (1927); Stromberg v. California, 283 U. S. 359, 369 (1931); Herndon v. Lowry, 301 U. S. 242, 258 (1937); Schneidermann v. United States, 320 U. S. 118, 137 (1943); Chafee, Zechariah Jr., “The Constitutional Right to Advocate Political, Social and Economic Change,” Lawyers' Guild Review, Vol. 7, pp. 57–79 (1947)Google Scholar.

⁴⁶ In the Gitlow case (and, by implication, in the Whitney case), note 44 above.

⁴⁷ For example, “… freedoms of speech and press, of assembly and of worship … are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect.” West Virginia Board of Education v. Barnette, 319 U. S. 624, 639 (1943).

⁴⁸ 80th. Cong., 2d session, H. R. 5852 (1948).

⁴⁹ That the present mood of the Supreme Court is to treat respectfully the findings of the legislature about Communism is indicated in American Communications Association v. Douds, 339 U. S. 382 (1950).

⁵⁰ Schneidermann v. United States, 320 U. S. 118, 136 (1943); Bridges v. Wixon, 326 U. S. 135, 163 (1945); United States v. Korner, 56 F. Sup. 242, 251 (1944); Emerson, T. I. and Helfeld, D. M., “Loyalty Among Government Employees,” Yale Law Journal, Vol. 58, pp. 1–143 (1948)CrossRefGoogle Scholar; “Guilt By Association—Three Words in Search of a Meaning,” University of Chicago Law Review, Vol. 17, pp. 148–162 (1949)CrossRefGoogle Scholar.

⁵¹ “Restrictions on the Civil Rights of Federal Employees,” Columbia Law Review, Vol. 47, pp. 1161–1189 (1947)CrossRefGoogle Scholar; “Constitutional Limitations on Political Discrimination in Public Employment,” Harvard Law Review, Vol. 60, pp. 779–786 (1947)CrossRefGoogle Scholar.

⁵² McAuliffe v. City of New Bedford, 155 Mass. 216, 220 (1892).

⁵³ The question is discussed in Ex parte Curtis, 106 U. S. 371 (1882); Heim v. McCall, 239 U. S. 175 (1915); Crane v. People of New York, 239 U. S. 195 (1915); United Public Workers v. Mitchell, 330 U. S. 75 (1947).

⁵⁴ Though the loyalty program of the national government has not yet reached the Supreme Court, it has proved immune to every attack made upon it in lower federal courts. Friedman v. Schwellenbach, 159 Fed. Rep. 2d 22 (1946), cert. den. 330 U. S. 838 (1947); Joint Anti-Fascist Refugee Committee v. Clark (McGrath), 177 Fed. Rep. 2d 79 (1949), cert. granted 339 U. S. 910 (1950); Bailey v. Richardson, CCA, DC, March 22, 1950 (not yet reported). The Los Angeles County loyalty program was upheld by an intermediate appellate court in California. Steiner v. Darby, Parker v. Los Angeles County, 199 Pac. Rep. 2d 429 (1948), 338 U. S. 327 (1949). In an advisory opinion the Supreme Court of Alabama upheld the constitutionality of a proposed loyalty oath for all voters in the state. Opinion of the Justices, 40 So. Rep. 2d 849 (1949).

⁵⁵ American Communications Association v. Douds, 339 U. S. 382 (1950).

⁵⁶ That Communists may be excluded from the practice of law is suggested by the decision in In re Summers, 325 U. S. 561 (1945) and decisions of state courts collected in American Law Reports Annotated, Vol. 8, pp. 1262 ff. (1920)Google Scholar; Vol. 12, pp. 1189 ff. (1921); Vol. 19, pp. 936 ff. (1922).

⁵⁷ New York Times, September 11, 1949, p. 74. In May, 1950, eight teachers in the public schools of New York City were suspended on suspicion that they were Communists. Action against them was not based on the Feinberg Law. New York Times, May 4, 1950, p. 1; May 7, IV, p. 13; May 10, p. 33; June 13, p. 1; July 11, p. 15.

⁵⁸ Boston Herald, August 3, 1949, p. 14Google Scholar. Governor Dewey (N. Y.) and Governor Lane (Md.) likewise failed conspicuously to show enthusiasm for the anti-subversive laws passed in their states.

⁵⁹ Two Texas legislators made the following comments on the solitary Communist student known to them. “He's not just representing his viewpoint. Somebody a lot smarter is behind him.” “I have reason to believe there are many of them at the University of Texas, and maybe some teachers. If I had my way, we'd escort them to the border.” The Feinberg Law spoke of the “common report” that Communists were in the school system. Maryland's Ober Commission reported, “The Commission had been informed that there is a substantial infiltration in some Maryland educational institutions.” The informant was not disclosed.

⁶⁰ These statements are based on information furnished to the writer by the legislative reference services of the states concerned. Replies were received from all the states addressed except New Mexico. In Maryland four state employees—three of them Quakers—refused to execute the loyalty declaration and were dismissed from their positions.

⁶¹ Experience in the United States and in other countries gives ground for apprehension on this score. But prevention of espionage and other forms of fifth column activity must be undertaken by the national government rather than by the states.

⁶² Many state legislatures in 1949 adopted resolutions of protest against the trials of Mindszenty and the Protestant clergymen in Bulgaria.

⁶³ The lack of such protection under New York law is treated by Justice Murray Hearn in Lederman v. Board of Education, 95 N.Y.S. 2d 114 (1949).

⁶⁴ These words were written before the outbreak of hostilities in Korea.