I emailed Prof. Volokh:In Elrod v. Burns, the US Supreme Court held that the Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of non-civil-service employees by discharging them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders". In US v. Robel, the Court held that a law barring members of the Communist party from “engage[ing] in any employment in any defense facility" to be unconstitutional.
"Would you make the same statement about Nazis, al-Qaedists, Klansmen? The logic of your position seems to demand it." He replied: Sure; I wouldn't fire a postman just because he's a Klansman, and the Supreme Court's caselaw would be on my side in this, see, e.g., U.S. v. Robel; Elrod v. Burns.
So, Volokh is not soft on Communists, he is a First Amendment scholar.
I agree with the Court’s decision the first case. A government officer does not have the right to coerce membership or support for a political organization as a condition of employment.
The second case is more complex. In US v. Robel, the court held that a ban on communists from working at government facilities was “an unconstitutional abridgment of the right of association protected by the First Amendment.” The law in question was politically controversial and was passed over President Truman’s veto. In its decision, the Court quotes Truman as saying "the language of the bill is so broad and vague that it might well result in penalizing the legitimate activities of people who are not Communists at all, but loyal citizens."
Yet in rendering its decision, the Court did not contemplate situations where a person’s philosophy would be so irrational and so abhorrent that it would preclude them from being employed by the government. Membership in the Klu Klux Klan is based on the philosophy of racial collectivism—the view that one’s racial group is the fount of all truth and justice— and the desire to implement that philosophy nation-wide. If that is a person’s view, how can they be trusted to be just with coworkers of different races, or with the public? Taken literally, the Court precludes the government from contemplating a person’s character and actions in is its hiring and firing for anything other then the most concrete-bound issues. The government may fire Jones for stealing pens, but not for being an active advocate for the institutionalized theft between the classes as a member of the Communist Party.
The difficulty in judging these cases rests in divining the line between the an individual’s right to hold ideas free from coercion and the responsibility he bears when he acts upon wicked or vicious ideas. Life requires the freedom to think without shackles—yet this freedom does not excuse one from bearing the responsibility for his corrupt actions. Agreement with racial and social collectivism is outside the bounds of honest disagreement. Membership in an organization dedicated to the advancement of these ideals indicates a serious moral breach, and takes one from merely holding a wrong idea to acting upon it. Those who seek to implement vicious ideas have no right to demand that other men deal with them, or that a government dedicated to protecting individual rights provide them with job opportunities.