There is a conflict between subversive activity and civil liberties. Subversive activities can be defined as advocating political violence to change the political system of government. It advocates revolution.

If the government suppresses subversive activities absolutely, then it eliminates civil liberties by enforcing thought control. But if it permits these activities, it allows radicals to take away the civil liberties of other citizens through violence and murder. How can it achieve the appropriate balance?

The Madisonian balance of power described in Federalist 10 offers a pragmatic solution. Many factions will bind together to oppose radicals.

The vagueness of subversive activity is rooted in the shifting nature of politics. Liberalism was subversive against monarchism, but today it is conservative. A subversive idea is only good once it becomes conservative.

There is also no easy definition or limits found in law.

Gitlow vs New York dealt with the issue of revolutionary literature. New York State passed a law prohibiting subversive literature which advocates revolutionary violence. Gitlow was arrested for advocating anarchism.

The majority ruled that the 14th amendment’s due process protected fundamental liberties, and so extended freedom of speech and press to states. This applied the Federal 1st Amendment and free speech to all states for the first time (which was a historical landmark on its own)

The majority then ruled that the New York law was in compliance with the 1st Amendment. States are allowed to protect the general welfare and security of the people from incendiary politics. Threats of Revolutionary violence pose a “sufficient threat” to the state, despite the lack of immediate injury.

The dissent by Oliver Holmes and Louis Brandeis argued that speech is only harmful when it poses a “clear and present danger.” All political theories can hold potential dangers, but speculative future harm should not be prohibited.

Back in the 1800s, the US Federal government passed anti-sedition laws to suppress radical Jacobinism from entering the US. Again, anti-sedition laws were used heavily in the Civil War and in the World Wars.

The House Un-American Activities Committee was formed to subdue subversive activities in early part of the 20th centuries. It’s first targets included groups that already engaged in violence, namely the Ku Klux Klan. Permitting the KKK to operate reduced the civil liberties of blacks, Jews, Catholics, and immigrants. HUAAC targetted and suppressed the KKK to protect Americans. Likewise, the HUAAC targetted anarchists and fascists who engaged in terrorist acts.

The USA, during World War II, imprisoned tens of thousands of Germans and Italians in concentration camps for being members of fascist and Nazi organizations. This included the imprisoning the membership of the German-American Bund.

After the war, HUAAC famously went after Soviet Spies. These things have a habit of spinning out of control. Instead of chasing only violent neo-nazis and hard-core violent Stalinists, the HUAAC started targetting soft socialist-democrats. Political pressure stopped it from getting worse and ended the mandate for HUAAC when it started harming free speech.

I think the limit should be based on intended violence vs mere speculative subversion. Personally, I own a virtual library of subversive literature. I own books by Marx, Hitler, Rousseau, Mao Zedung, anarchists, autobiographies by various tinpot dictators, and an assortment of raving religious fanatics like Qutb. I either take the “know thy enemy” motto seriously, or I’m a potential radical. How can the government know the difference when I’m shopping in the bookstore?

Indeed. How can a government handle this fairly? Free Speech includes subversive beliefs. Free Speech is subversive – that’s why the rest of the world cannot tolerate the radical concept behind the American first amendment. We cannot label certain ideas “hate speech” and outlaw it without destroying the First Amendment.

The advice of Justice Robert Jackson should be heeded.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.” They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

There ought to be a real debate on this issue. Today, the government once more must separate radicals from violent radicals. Their mission deals with this fundamental problem – they must prevent radical religious freaks from attacking peaceful citizens, not merely arrest them after the attacks. Nor can we let this mission expand unchecked to included non-violent activities.