Morrison, "Membership Crime and the First Amendment"

Steven R. Morrison (University of North Dakota School of Law) has posted "Membership Crime and the First Amendment." Here's the abstract:

This Article provides a new history of the substantive birth of the First Amendment in 1919. Through this new history, the Article presents a doctrinal argument. As to the historical part, this Article explores two aspects of the history that have, until now, gone largely unnoticed. The first aspect is the application of criminal conspiracy charges against dissidents in federal and state courts. The second aspect is the use of criminal syndicalism laws at the state level, also against dissidents. These laws were, essentially, statutory conspiracy laws.

As to the doctrinal part, this Article argues that the accepted history of the First Amendment’s substantive birth is fundamentally incomplete. That accepted history is that the four seminal 1919 cases — Schenck v. United States, Frohwerk v. United States, Debs v. United States, and Abrams v. United States — comprised a sharp break from prior First Amendment jurisprudence that would result in the robust free speech rights we now enjoy. The new history that this Article sets forth shows two things. First, the 1919 cases were predictable products of their World War I-era time, which the Article sets as 1918-1927. Second, anti-dissident cases in this era were conspiracy or membership crime cases (including three of the 1919 headliners), and so assembly should have been the preferred First Amendment right, not speech.
This Article concludes with a discussion of conspiracy and membership crime cases in the post-9/11 era. It shows that the elision of assembly rights in the World War I era impinges upon contemporary doctrinal questions: How, if at all, can one have a First Amendment right to be a member of a designated foreign terrorist organization? How, if at all, can a non-member of a terrorist organization constitutionally act in ways that might benefit the organization? Is someone who engages in First Amendment activity that comprises material support to a terrorist organization subject to indictment?

This Article makes two contributions to First Amendment scholarship. First, it adds to emerging scholarship on First Amendment institutionalism and the underdeveloped freedom of assembly by showing that First Amendment activity at that amendment’s birth was primarily associational; speech was secondary. Second, it shows that the tension between First Amendment rights and group criminality is not a late-coming aberration to an otherwise unsullied First Amendment, as many scholars suggest. This tension, rather, lies at the center of the amendment’s jurisprudence, baked in at the start.

The full article is available here, at SSRN.