peech has been the degree of danger which must exist before it may
be punished. The recent decision in Dennis _v._ United States
diminishes, if it does not eliminate, this issue.[206]

LOYALTY REGULATIONS: THE DOUDS CASES

"Section 9 (h) of the Labor Management Relations Act requires, as a
condition of a union's utilizing the opportunities afforded by the act,
each of its officers to file an affidavit with the National Labor
Relations Board (1) that he is not a member of the Communist Party or
affiliated with such party, and (2) that he does not believe in, and is
not a member of or supports any organization that believes in or teaches
the overthrow of the United States Government by force or by any illegal
or unconstitutional methods." The statute also makes it a criminal
offense to make willfully or knowingly any false statement in such an
affidavit.[207] In American Communications Association, C.I.O. et al.
_v._ Douds[208] five of the six Justices participating sustained the
requirement (1) and three Justices sustained the requirement (2)
against the objection that the act exceeded Congress's power over
interstate commerce and infringed freedom of speech and the rights of
petition and assembly; and in Osman _v._ Douds[209] the same result was
reached by a Court in which only Justice Clark did not participate. In
the end only Justice Black condemned requirement (1), while the Court
was evenly divided as to requirement (2). In the course of his opinion
for the controlling wing of the Court, Chief Justice Vinson said: "The
attempt to apply the term, 'clear and present danger,' as a mechanical
test in every case touching First Amendment freedoms, without regard to
the context of its application, mistakes the form in which an idea was
cast for the substance of the idea * * * the question with which we are
here faced is not the same one that Justices Holmes and Brandeis found
convenient to consider in terms of clear and present danger.
Government's interest here is not in preventing the dissemination of
Communist doctrine or the holding of particular beliefs because it is
feared that unlawful action will result therefrom if free speech is
practiced. Its interest is in protecting the free flow of commerce from
what Congress considers to be substantial evils of conduct that are not
the products of speech at all. * * * The contention of petitioner * * *
that this Court must find that political strikes create a clear and
pr