Persecution of communists’ in (fake) western democracies: case law summaries

Q:To what extent did public and political opinion in the west undermine the impartiality of judicial decision-making during the cold-war era?
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USA

In a famous dissent, Justice Douglas of the US Supreme Court declared:

‘We have deemed it more costly to liberty to suppress despised minorities than to let them vent their spleen’ (Dennis v United States U.S. 494 at p. 585 (1951) (U.S.S.C.).

No western democracy has practiced the tolerance exposed [mistake in video, it should read “expoused”] by Justice Douglas-in the above statement, without at some stage censoring unpopular organizations. Douglas was in a minority of two on a US Supreme Court bench which upheld convictions entered against Communist party sympathizers for conspiring to overthrow the US government. (Joseph, P,think it’s “1998” edn., Constitutional and Administrative Law in New Zealand, ).

In Dennis v United States, above, the US Supreme Court upheld convictions against communist party officials for conspiring to teach or advocate the overthrow of the government by force or violence. Here, the Court considered that the advocacy of the communist doctrine was to be equated with conspiring to forcibly overthrow the US government.

Dennis was decided in 1951, at the height of cold-war tensions between the USSR and the US. Justice Black aligned with Justice Douglas in the minority stating:

‘Public opinion being what it is now, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions, and fears subside, this or some other later court will restore the First Amendment liberties to the high place where they belong in a free society.’ (Dennis, supra, at 581).

Justice Black’s statement was realized six years later in Yates v United States 354 U.S. 298 (1957) (U.S.S.C). This time, a differently constituted Supreme Court bench quashed the convictions of 14 Communist Party leaders that had been entered for similar reasons under the same Act.

With the easing of east-west relations, the Court drew a clear distinction between the advocacy of forcible overthrow of government-as an abstract doctrine, and the advocacy of action to achieve that result.

According to legal philosopher Wolfgang Friedman, it was impossible to remove the judgment of the US Supreme Court from the political tensions and public opinions that existed at that time. (W. Friedman, Legal Theory, (4th edn. , 1960, at p.95).

Australia

Australia also expressed abhorrence at communist doctrine during the post-war era. In Burns v Ransley (1949) 79 C.L.R. 101 (H.C.), the Australian High Court upheld a conviction for sedition entered against a communist speaker who, when asked, announced that, in the event of a war, he would fight on the side of the Soviet Union. He was convicted for words he had spoken in reply to a hypothetical question, and not for inciting mutiny or violence.

The following year the Communist Party Dissolution Act 1950 (Cth) declared the Australian Communist Party to be a revolutionary organization which jeopardized the defence of the Commonwealth. The statute dissolved the Communist Party and all affiliated organizations declared illegal under the Act.

The fundamental democratic principle of freedom of expression was restored when a majority of the High Court of Australia in Australian Communist Party v Commonwealth (1951) 83 CLR 1, declared the Communist Dissolution Act 1950 (Cth) to be unconstitutional and beyond the defence powers of the Commonwealth (see also R v Sharky (1949) 79 CLR 121).

New Zealand

During the early 1980s in New Zealand, Priminister Robert Muldoon took exception to the Socialist Unity Party and questioned it’s right to exist in a free and democratic society. However, a government, expounding the rule of law, must demonstrate greater justification for out-lawing a particular group or organization, for reasons other than personal enmity (Joseph, supra, at p.191).

See also New Zealand Bill of Rights Act 1990, s.14 (right to freedom of expression), and related case law; and Human Rights Act 1993, s.21(j)(prohibits discrimination on grounds of political opinion) incorporated, by reference, into s.19 NZBORA; note also- Crimes (Repeal of Seditious Offences) Amendment Act 2007; & see Flags, Emblems, and Names Protection Act 1981, s.11 (offences involving New Zealand flag)

Duration : 0:4:20

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Constitutional Law Prof. Frank Askin: Part 1

Prof. Frank Askin of the Rutgers Law School, NJ Constitutional Litigation Clinic on free speech in condos and co-ops. Featuring Twin Rivers and Galaxy complexes in NJ.

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Violent Video Game Law Divides Supreme Court

California passed a law five years ago to block the sale of violent video games to minors, but the industry fought back. Jan Crawford reports, the case has the Supreme Court divided.

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Legal News Headlines 6/9/2010

http://www.lbnnews.com

Today’s Legal Headline News

BP Spill could take years to clean up

Intelligence officer arrested for posting cinfidential video on Wikileaks

ACLU files lawsuit agains government over privacy

Bhopal India Union carbide execs get 2 years

Legal Broadcast Network

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Fox News: libraries can’t show anti-religious art

In this interview from Fox News some guy comes on and suggests that libraries don’t have the legal right to have anti-religious art in their exhibits.

Feel free to comment and criticize.

Correct me if I am wrong but I do not think that the man manages to string together a coherent legal argument. It came across as white noise to me. Am I missing something?

I think it would be absurd if anything religious or non-religious was prohibited from libraries. I do not have a problem with religious art being sold at libraries, government institution or not. Pictures of crosses, or art with other religious imagery, is in my opinion perfectly acceptable if it is being sold _as art_ in a library, and not being used to promote religion. The same is true of anti-religious art.

It becomes a problem only when the state is putting religion (or irreligion) where it doesn’t belong, like in schools, on the money, or in the pledge of allegiance. In that case, it is simply a promotion of religion by the government.

Here, we are not talking about the promotion or religion or irreligion. We are talking about art being sold at a library. It would be very strange indeed if libraries were prohibited from holding items that have any implications for religion (positive or negative). The reason libraries are allowed to carry religious books, like the bible, is because they are not being used to promote religion. They are being held as part of the libraries collection -this is an acceptable purpose for a library, government run or not. The same goes for sales of art. If it is not the promotion of religion (or irreligion) but is the sale or display of art, it is constitutionally acceptable.

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BBC News on EpicNoseGuy’s court summons

UPDATE: EpicNoseGuy has won! http://news.bbc.co.uk/1/hi/england/london/7416425.stm

BBC London News today, kinda self explanatory. Just to let you know, what ENG did was completely legal and so he’s guaranteed to win in court. Keep checking http://www.wirah.com for updates.

A vaguely higher definition version is now available on Vimeo at http://www.vimeo.com/1051633. Thanks to United Chanology News for sorting that out.

Digg the story: http://digg.com/world_news/EpicNoseGuy_on_BBC_News

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