Laws Affecting Speaking

Chancellor William B. Aycock ’37 (MA, ’48 JD) speaking to the Watauga Club, Raleigh
Jan. 21, 1964

When discussing laws affecting speakers it is essential to refer to an act of Congress (Smith Act) which became law in 1940 and to two acts passed by the General Assembly of North Carolina-the first in 1941 and the second in 1963. The Smith Act provided in part the following:

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or by the government of any political subdivision therein, by force or violence, or by assassination of any officer of any such government … Shall be fined not more than $20,000 or imprisoned not more than 20 years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

The Federal law, of course, applies throughout the United States including the State of North Carolina.

In 1941 the General Assembly of North Carolina passed a criminal statute modeled after a Virginia law. This statute makes it unlawful for:

 any person, by word of mouth, or writing, willfully and deliberately to advocate, advise or teach a doctrine that the government of the United States, State of North Carolina or any political subdivision thereof SHALL BE OVERTHROWN OR OVERTURNED BY FORCE OR VIOLENCE OR BY ANY OTHER UNLAWFUL MEANS.

This statute specifically prohibits the use of any public building in the State for such purposes. Presumably the custodian of a public building as well as a speaker may violate the act. The first offense is punishable as a misdemeanor and the second offense would constitute a felony. On August 2, 1963, the Attorney General of North Carolina signed a Memorandum written by the Deputy Attorney General. The following appears on page two of this Memorandum:

“In order to show that it is not new to prohibit the use of State property by advocates or speakers who set forth doctrines in some form or other that the government of the United States, the various State governments and subdivisions thereof, should be overthrown by violence or other unlawful means, it is necessary to set forth some statutes that were enacted by the General Assembly of this State in 1941 and in 1947. APPARENTLY THE INSTITUTIONS OF HIGHER LEARNING HAVE PAID NO ATTENTION TO THESE STATUTES FOR IT IS A MATTER OF COMMON KNOWLEDGE THAT CERTAIN HARD CORE COMMUNISTS HAVE VISITED THE CAMPUS OF AT LEAST ONE INSTITUTION OF HIGHER LEARNING AND DELIVERED LECTURES OR SPEECHES. (Caps supplied).”

The Attorney General is the official lawyer for State supported institutions of higher learning. Thus our own legal counsel is on record as stating “apparently the institutions of higher learning have paid no attention to these statutes… (1941 statute and subsequent amendments). . . ” The only way in which institutions of higher learning could “have paid no attention to these statutes” is to have permitted speakers who violated the law to speak in buildings under the supervision of the institutions. If there is a guilty institution, it follows there must be a guilty speaker. The two must stand or fall together. Who has the responsibility for bringing the guilty speaker to the bar of justice? The law of North Carolina states that the Attorney General shall set up in the Department of Justice a division to be designated as the State Bureau of Investigation in order to secure a more effective administration of the criminal laws of the State, to prevent crime, and to procure the speedy apprehension of all criminals. Further, the Director of the Bureau and his assistants are given the same power of arrest as is vested in the sheriffs of the several counties, and their jurisdiction shall be State wide. If the Department of justice or any other law enforcement agency has arrested any person alleged to have violated the 1941 Act on a college or university campus, I am unaware of it. The only conclusion one can draw on this point is that if the institutions of higher learning have “paid no attention” to the 1941 law, the office of the Attorney General is equally guilty in that his office has not performed its duty to bring to the bar of justice either the guilty speaker or the guilty college or university administrator who permitted a public building to be used for such purpose. Furthermore, does it not follow that Federal enforcement agencies have likewise “paid no attention” to the enforcement of the Smith Act on the campuses of the colleges and universities in North Carolina? All of us oppose the advocacy of the overthrow of the government by force, violence, and other unlawful means. The 1941 Act, as amended, should not be ignored. So far as I know it has not been ignored by our institutions of higher learning nor by our law enforcement agencies. Nevertheless, since the appearance of the Memorandum of the Attorney General last August, there have been repeated assertions that one reason for the 1963 legislation was that the institutions of higher learning had “paid no attention” to the 1941 Act.

Now to the 1963 Speaker Ban Law: It is quite different from the 1941 Act. Its full text follows:


The General Assembly of North Carolina do enact:

Section 1. No college or university, which receives any state funds in support thereof, shall permit any person to use the facilities of such college or university for speaking purposes, who:
(A) Is a known member of the Communist Party;
(B) Is known to advocate the overthrow of the Constitution of the United States or the State of North Carolina;
(C) Has pleaded the Fifth Amendment of the Constitution of the United States in refusing to answer any question, with respect to communist or subversive connections, or activities, before any duly constituted legislative committee, any judicial tribunal, or any executive or administrative board of the United States or any state.

Sec. 2. This Act shall be enforced by the Board of Trustees, or other governing authority, of such college or university, or by such administrative personnel as may be appointed therefore by the Board of Trustees or other governing authority of such college or university.

Sec. 3. All laws and clauses of laws in conflict with this Act are hereby repealed.

Sec. 4. This Act shall be effective upon its ratification.

The 1963 Act goes much further than the 1941 Act in that it  prohibits any person to whom it applies from speaking on any state  supported campus on any subject. The text of the Act states “No college or university, which receives any state funds in support thereof. . . ” Precisely what is meant by “any state funds” is not clear. I will not dwell on the possibilities that it might include  some private institutions. Apart from this, the statute is fraught with uncertainties and ambiguities. Only a few examples need be  cited. The 1963 Act by its own terms does not impose any penalties for failure to comply. However, General Statutes 14 230 declares that: “If any … official of any of the State institutions … shall willfully omit, neglect, or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, he shall be guilty of a misdemeanor.” This statute which, incidentally, goes back to at least 1901 may apply. If so, the 1963 Visiting Speaker Law is a criminal statute. Who knows for certain?

On the surface the 1963 Act appears to be a simple one to enforce. To one charged with the duty of enforcement, however, it is quickly evident that it is worded in extremely vague terms in almost every particular. What is meant by a “known” member of THE Communist Party? American Communist Party only? Communist Party of Great Britain? France? Italy? Does it include all citizens of Russia whether or not they are members of the Party? Does it include all citizens in the Russian Bloc? What is meant by “known” member of the Communist Party? Judgment of a court? Admission? Reputation? Accusation by some official body or individual? Section B prohibits speakers known “to advocate the overthrow of the Constitution of the United States or the State of North Carolina.” It omits the vital language “by force or violence.” Does it include “overthrow” by peaceful means? If so, what is peaceful? Section C outlaws speakers who have pleaded the Fifth Amendment “with respect to communist or subversive connections.” This section does not require that the inviter must “know” that the speaker has done so. Is the requirement of knowledge implied? Recently, a former student took the Fifth Amendment in an investigation to determine whether a certain citizen of the United States had violated a law requiring registration as a foreign agent for handling foreign money to purchase airline tickets for certain persons who visited Cuba in violation of a State Department travel ban to that country. Was the Fifth Amendment taken with respect to Communist or subversive connections in this situation? I am not sure. Enough has been said to illustrate the problems posed to one charged with enforcement without even dealing with the vital question of who is a visiting speaker.

In order to resolve some of the ambiguities in the 1963 Act, the Executive Committee of the Board of Trustees adopted the following policy statement on July 8, 1963:

“The facilities of the Consolidated University of North Carolina shall be denied to any visiting speaker who is known to be a member of any Communist Party; or is known to advocate the overthrow of the Constitution of the United States or the State of North Carolina; or is known to have pleaded the Fifth Amendment of the Constitution of the United States in refusing to answer any question, with respect to Communist or subversive connections, or activities, before any duly constituted legislative committee, any judicial tribunal, or any executive or administrative board of the United States or any state.

This policy shall be enforced by student representatives of student organizations authorized to invite visiting speakers and by any member of the faculty or administrative official who invites a visiting speaker to the campus.”

This policy statement is helpful on several points but there is no way to resolve all the ambiguities. One more example should suffice. What is meant by “facilities of such college or university for speaking purposes?” Channel Four, the Television Station of the University is a facility. Is it a facility within the meaning of the 1963 Act? If so, Is it legal to permit a member of the Communist Party to say a single word on any subject on Channel Four? What about news programs? Would it make any difference if the speaker were in a studio on or off the campus or whether the program were live or taped? Would it be permissible to telecast Communist or Fifth Amendment speakers over Channel Four so long as all sets on the campus were off? What about the Carolina Inn, a Universityowned hotel? Can a University owned television set in the lobby of the hotel show programs originating on a commercial station involving any speaker in the forbidden class? Is this statute “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application?” If so, is it destined to be declared unconstitutional and its enforcement enjoined on the ground that it clearly appears to deny certain fundamental rights in violation of constitutional guarantees? We may never know because it is not at all clear by what means, if any, these constitutional questions can be raised. Enough has been said about the sloppy draftsmanship of the Act to bring forth concessions from some of its most ardent proponents that amendments are in order. Certainly the law can be improved in technical detail in a dozen or more ways. A good job of draftsmanship would enable those charged with its enforcement to fulfill their responsibilities under the law but all the technical skill in the land cannot make wise a law which runs counter to a fundamental principle of our society. The most vital question of all is why such a law? On the last day of 1963 The Greensboro Daily News in an editorial “North Carolina in 1963” had this to say:

… The General Assembly of North Carolina steam rolled in its closing hours an obnoxious speaker ban law for state supported university and college campuses. The
Act was hastily conceived and superfluous. It removed from the Boards of Trustees of the various state institutions authority to handle such matters on the campus level (italics supplied) and seriously damaged the cause of academic freedom and the reputation of North Carolina in national and international circles.

Did the sponsors of the legislation have before them reports from police departments, the State Bureau of Investigation, the office of the Attorney General, the Federal Bureau of Investigation or from any other source indicating the need for further protective legislation? If so, such evidence has remained secret. If there were no evidence, what then, motivated the sponsors to secure the passage of the 1963 Visiting Speakers Law? It could not have been the alleged “ignoring” of the 1941 Act because the sponsors admit they did not know that this law was on the books! Recently statements have been made implying that the legislation was to punish institutions of higher learning because a handful of faculty members in certain institutions, including the University at Chapel Hill, had participated in racial demonstrations. Suggestions have been made that the hassle over the name change for State College and the cancellation of the Dixie Classic played a part in the passage of the legislation. It is beyond the scope of my knowledge, wisdom, and imagination to evaluate these possible motives. I do know, however, that there should be some relationship between a supposed evil and the legislative remedy designed to cope with it.

Not widely understood, unfortunately, is the harm which this legislation will cause to higher education in North Carolina, particularly to the University, and consequently, to the entire State. Many newspapers, most educators, and a few legislators and other citizens comprehend the danger and they are disturbed. But we are informed, and I believe correctly so, that the majority of the people favor this legislation. Of course they favor it and will continue to do so unless and until the leaders in the State speak out! Their silence is interpreted to mean approval or at least qualified approval. Even more surprising is the constant admonition directed to those few of us who speak out that we should be quiet. This brings a new dimension to our representative form of government. There is nothing in the history of this State or Nation to support the notion that the merits of legislation cannot be discussed in full measure. Neither the decisions of Presidents, Governors, Congress, the General Assembly or the Courts, both State and Federal, have ever enjoyed the immunity suggested for this legislation. The fact that the majority of the people favor the legislation is no reason to concede that it is necessary, wise or valid; otherwise we subscribe to the notion that everything momentarily popular should remain permanently our public policy. Time and time again the General Assembly has taken leadership in spite of the so called “popular will.” What about statewide referendums on liquor? What about the sales tax on food? What about redistricting under the Constitution for the past decade? But, then, we are reminded that there is a forthcoming political campaign. There is nothing unique about this. A political campaign is always forthcoming and every political leader is conscious of the fact that the end of one is the beginning of another. One aspiring to political office may foresee the dangers of trying to interpret the true impact of this law on the State and thus seek to push it out of the campaign. This I understand. Yet, even from my so called “Ivory Tower” I know that such is not possible. This issue is being used and will be used because it is always before us.

Obviously the General Assembly of North Carolina has the power to enact any legislation it chooses so long as it will ultimately pass muster with the State and Federal Constitutions. Those of us who think that a law is unwise possess only the power of education to work for us. This power has an impact only after great effort and over a period of time. The power of education is exercised by communication and not by silence. The newspapers who understand this issue have contributed much already. Unfortunately, the relative influence of our newspapers is declining. Our “functional illiterates” can listen even though they cannot read and many of our citizens who can read prefer to listen. What they hear is not always prepared with a view to helping them understand fundamental principles. Rather it is directed toward encouraging them to distrust leadership whether in government or education. In many areas of this State the people are responding to poor leadership and herein is a danger which transcends all the supposed dangers from afar. The tragic truth is that in the Speaker Ban Law a fundamental principle has been set aside for some one or more nonfundamental reasons.

… It will take much to upgrade North Carolina economically-it costs no money-only leadership, courage, common sense, and the exercise of the educational process to restore to North Carolina its high place in diversity, controversy, tolerance and freedom on its campuses.