From Stalin to Bin Laden: Comparing Yesteryear's Anti-Communist Statutes with the Public Employer Provision of the Ohio Patriot Act
Gustavo Otalvora | 2010 U. Ill. L. Rev. 1303
In the beginning decades of the twentieth century, membership in communist organizations in the United States began to increase signifi-cantly. Governing bodies across the country, worried that members of these organizations were a threat to national security, responded by en-acting laws that attempted to deter people from participating in these, of-ten legitimate, organizations. These statutes, however, failed to take into account the right to association guaranteed in the First Amendment, and because of this, many were invalidated by the Supreme Court of the Unit-ed States because they were unconstitutionally overbroad and violated the doctrine of due process.
The start of the twenty-first century saw a new threat to national se-curity emerge—terrorism, illustrated most horrifically in the terrorist at-tacks on September 11, 2001. And again, state and federal governments reacted by enacting laws attempting to combat terrorism and prohibiting people from assisting or associating with groups that were thought to be supporting terrorism. This Note argues that like the anti-communist laws of the early twentieth century, these anti-terrorism laws similarly imper-missibly restrict freedom of association and should similarly be held un-constitutional.
The author focuses on the Ohio Patriot Act, which has not yet been challenged on constitutional grounds. This Note outlines the relevant doctrines and arguments that courts have used to hold both the early twentieth-century anti-communism laws and certain more recent federal anti-terrorism laws unconstitutional. The author then applies these doc-trines to the Ohio Patriot Act and argues that if challenged, it should be held unconstitutional by the Supreme Court of the United States. The author does acknowledge, however, that prohibiting people from assisting known terrorist organizations is a legitimate state goal, and so the author concludes by suggesting amendments Ohio could make to its Patriot Act that would accomplish this goal, while still complying with constitutional requirements.