Smith Act trials of Communist Party leaders

Foley Square trial

Defendants Robert Thompson and Benjamin Davis surrounded by supporters as they leave the courthouse
Date	January to October 1949
Location	Foley Square federal courthouse, New York City
Also known as	Smith Act trial of 1949
Participants	Judge: Harold Medina Defendants: Eleven leaders of the Communist Party USA
Charges	Conspiring to violently overthrow the government
Verdict	Guilty
Convictions	Five years in prison, and $10,000 fine, each
Related Supreme Court cases: Dennis v. United States (1951) Sacher v. United States (1952) Yates v. United States (1957)

The Foley Square trial was a 1949 federal criminal case, in which eleven leaders of the Communist Party USA (CPUSA) were accused of conspiring to violently overthrow the government. The trial is sometimes referred to as the Smith Act trial of 1949. The trial was a major episode in the McCarthy era of American history, and focused on whether Congress could outlaw political parties which advocated for radical restructuring of the US government. The prosecution argued that the CPUSA endorsed a violent overthrow of the government; but the defendants countered that they advocated for a peaceful transition to socialism, and that the First Amendment's guarantee of free speech and association protected their membership in a political party. The trial was one of the lengthiest and most contentious trials in American history.

The trial–held in Manhattan's Foley Square courthouse–was widely publicized by the media, and was featured on the cover of Time magazine twice. Large numbers of supporter of the communist defendants protested outside the courthouse daily. The defense attorneys used a "labor defense" strategy, which attacked the trial as a capitalist venture that could not provide a fair outcome to proletarian defendants. During the trial, the defense routinely antagonized the judge and prosecution, and five of the defendants were sent to jail for contempt of court for disrupting the trial. The prosecution's case relied on the testimony of undercover informants who interpreted communist texts, such as The Communist Manifesto, and concluded that the communist doctrine advocated the violent overthrow of the US government.

While the trial was underway, events outside the courtroom influenced public perception of communism: The USSR detonated its first atomic bomb, and communists prevailed in the Chinese Civil War. Public opinion was overwhelmingly against the defendants, and, after a ten-month trial, the jury found all eleven defendants guilty and they were sentenced to terms of five years in federal prison. When the trial concluded, the judge sent all five defense attorneys to jail for contempt of court. Two of the attorneys were subsequently disbarred.

After the trial, the government prosecutors–encouraged by their success–tried and convicted over 100 additional CPUSA officers. Some of them were convicted solely of being members of the Party. Many of these defendants had difficulty finding attorneys to represent them. The trial decimated the leadership of the CPUSA, and its membership plunged. Eight years after the trial, in 1957, the US Supreme Court brought an end to similar prosecutions with its decision in Yates v. United States, holding that for the Smith Act to be violated, defendants must encourage others to do something, rather than merely to believe in something.

Background

The first manifestation of anti-communism in the United States was the First Red Scare, illustrated by this 1919 political cartoon.

See also: Cold War and Red Scare

After the communist revolution in Russia in 1917, communism gradually gained footholds in many countries around the world. In Europe and the United States, communist parties were formed, generally allied with trade union and labor causes. During the First Red Scare of 1919–1920, many within the United States were fearful that communism would lead to a revolution within the US In the late 1930s, state and federal legislatures passed numerous laws designed to expose communists, including laws requiring loyalty oaths, and laws requiring communists to register with the government. Even the American Civil Liberties Union–generally considered a liberal institution–passed a resolution in 1939 expelling communists from its leadership ranks. During World War II, the United States was allied with the USSR, so the government suspended some of its anti-communist agenda. But when the war was over, and the Cold War commenced, the Federal Bureau of Investigation (FBI), and the Department of Justice resumed their campaign against communists within the United States.

Smith Act

Main article: Smith Act

One of the key pieces of anti-communist legislation was the Smith Act, passed in 1940. The Smith Act set criminal penalties for advocating the overthrow of the US government, and required all non-citizen adult residents to register with the government. The first persons convicted under the Smith Act were members of the Socialist Workers Party (SWP) in Minneapolis in 1941. The CPUSA, bitter rivals of the Trotskyist SWP, supported the Smith Act prosecution of the SWP–a decision they would later regret. In 1943, in the middle of World War II, the government used the Smith Act to prosecute American Nazis; that case ended in a mistrial when the judge died of a heart attack. Anxious to avoid alienating the USSR, an ally in World War II, the government did not prosecute any communists under the law until after the war was over. By March 1946, Truman had become disturbed by the antagonistic behavior of the USSR, and thus abandoned President Franklin D. Roosevelt's policy of appeasement.

Communist Party

Main article: History of the US Communist Party

In late 1945, hardline Stalinist William Z. Foster took over leadership of the CPUSA, replacing Earl Browder who Foster considered to be an "accommodationist" because he had collaborated with Roosevelt's administration during the war. In the late 1940s, public opinion in America continued to turn against the Party for a variety of reasons: Stalinist threats in Greece and Czechoslovakia, revelations of past instances of communist espionage in the US during 1930s and 1940s, and criticism of communism from the Republican Party. By 1948, the membership of the CPUSA had declined to 60,000 members, down from a peak of 80,000 during World War II when the US was allied with USSR. Truman did not feel that the CPUSA was a threat (he dismissed it a "a contemptible minority in a land of freedom") yet he made the specter of communism a campaign issue during the 1948 election.

Indictments

J. Edgar Hoover gathered evidence against the defendants, and encouraged the Attorney General to prosecute

Despite the relatively small size of the CPUSA, in 1945 the FBI and the Justice Department embarked on a campaign against the organization. In July 1945, FBI director J. Edgar Hoover instructed his agents to begin gathering information on CPUSA members to demonstrate the the Party's subversive goals, leading to a 1,850 page report published in 1946 which outlined a case for prosecution. As the Cold War continued to intensify in 1947, Congress held a hearing at which the Hollywood ten refused to testify about alleged involvement with the CPUSA, leading to their convictions for contempt of Congress in early 1948. Also in 1948, Hoover instructed the Department of Justice to level charges against the CPUSA leaders with the intention of rendering the Party ineffective. John McGohey, a federal prosecutor from the Southern District of New York, was given the lead role in prosecuting the case and charged twelve leaders of the CPUSA with violations of the Smith Act. The specific charges against the defendants were first, that they conspired to overthrow the US government by violent means, and second, that they belonged to an organization that advocated the violent overthrow of the government. The indictment, issued on June 29, 1945, asserted that the CPUSA had been in violation of the Smith Act since July 1945, when hardliner Foster had taken over leadership from Browder. The Department of Justice was worried that publicizing the indictments might cause liberal voters to shift their support from Truman to the Progressive Party candidate Henry Wallace, so the prosecutors kept the indictments secret until after the Democratic National Convention concluded on July 14, 1948. The twelve defendants, arrested in late July, were:

The defendants. Back row (left to right): Stachel, Potash, Winter, Davis, Gates, Green. Front row: Thompson, Winston, Dennis, Hall, Williamson

• Benjamin J. Davis – Chairman of the CPUSA's Legislative Committee
• Eugene Dennis – General Secretary
• William Z. Foster – National Secretary (indicted; but not tried due to illness)
• John Gates – Leader of the Young Communist League
• Gil Green – Member of the National Board
• Gus Hall – Member of the National Board
• Irving Potash - Furriers Union official
• Jack Stachel
• Robert G. Thompson – Lead of the New York organization
• John Williamson – Member of the Central Committee
• Henry Winston – Member of the National Board
• Carl Winter – Lead of the Michigan organization

Hoover was disappointed that the prosecutors had indicted only twelve leaders and he wrote–recalling his 1917 arrests of over one hundred leaders of the Industrial Workers of the World (IWW)–"the IWW was crushed [in 1917] and never revived, similar action at this time would have been as effective against the Communist Party." Although twelve CPUSA members were indicted, only eleven were tried, because William Z. Foster was not brought to trial due to his ill health.

Pre-trial activity

Before the trial began, supporters of the defendants hoped to gain an advantage by letter-writing and by public demonstrations: the Daily Worker urged CPUSA members to bombard Truman with letters requesting that the charges be dropped. Later, supporters similarly flooded judge Harold Medina with telegrams and letters urging him to dismiss the charges. In spite of the aggressive defense tactics and a voluminous letter-writing campaign directed at Medina, he professed to be unaffected and said "I will not be intimidated". The defense made pre-trial motions arguing that the defendants' right to trial by a jury of peers had been denied, because the federal grand jury (which approved the indictments) was composed of wealthy, propertied persons, rather than a broad cross-section of the community (at the time, grand jury members had to meet a minimum property test, and were paid only $4 per day). The defense also argued that the jury selection process to be used for their trial was similarly flawed. Their objections to the jury selection process were not successful, but when a jury was finally selected, it contained four African Americans, and consisted primarily of working-class citizens.

Trial

The trial was held in the Foley Square federal courthouse in Manhattan.

The trial was presided over by judge Harold Medina, a former Columbia University professor who had been a judge for only 18 months when the trial began. The trial was held in the Foley Square federal courthouse in New York City, and opened on November 1, 1948; preliminary proceedings and jury selection lasted until January 17, 1949; the defendants first appeared in court on March 7; and the trial concluded on October 14, 1949. Although later trials surpassed it, in 1949 it was the longest federal trial in US history. The trial was one of the country's most contentious legal proceedings and sometimes had a "circus-like atmosphere". Magazines, newspapers, and radio reported on the trial heavily, including two Time magazine cover stories titled "Communists: The Little Commissar" and "Communists: The Presence of Evil". Four hundred police officers were assigned to the courthouse on the opening day of the trial. During the trial, there were days when several thousand picketers protested in Foley Square outside the courthouse, chanting slogans like "Adolph Hitler never died / He's sitting at Medina's side". In response, the US House of Representatives passed a bill which would outlaw protests near federal courthouses; but the Senate never voted on the law.

Prosecution

Prosecutor John McGohey did not assert that the defendants had a specific plan to violently overthrow the US government, but rather alleged that the CPUSA's philosophy generally advocated the violent overthrow of governments. To prove this, the prosecution proffered articles, pamphlets and books (such as The Communist Manifesto) written by authors such as Karl Marx and Joseph Stalin. The prosecution argued that the texts advocated violent revolution, and that by adopting the texts as their political foundation, the defendants were also personally guilty of advocating violent overthrow of the government.

The interpretation of the texts was performed by witnesses for the prosecution, all of whom were either undercover informants, such as Angela Calomiris and Herbert Philbrick, or former communists who had become disenchanted with the CPUSA, such as Louis Budenz. Prosecution witness Angela Calomiris was recruited by the FBI in 1942, and infiltrated the CPUSA, gaining access to a membership roster. During the seven years Calomiris was an informant, the FBI paid her a salary. In her testimony, Calomiris identified four of the defendants as members of the CPUSA, and provided information about its organization. She also testified that the CPUSA espoused violent revolution against the government and that the CPUSA had attempted to recruit members working in key war industries, on instructions from Moscow.

Another important witness for the prosecution was Louis Budenz, a former communist, who testified that the CPUSA subscribed to a philosophy of violent overthrow of the government. Budenz also testified that the clauses of the constitution of the CPUSA which disavowed violence were decoys written in "Aesopean language" which were put in place specifically to protect the CPUSA from prosecution.

The opinion of contemporary media was overwhelming in favor of conviction, but an editorial in the left-leaning The New Republic, written after the prosecution rested on May 19, 1949, wrote that the government had "failed to make out the overwhelming case that many people anticipated before the trial began". Legal scholar Michal Belknap wrote in 1981 that the prosecution case "just did not add up to much".

Defense

All five of the defense attorneys were sent to jail for contempt of court: Abraham Isserman, George Crockett, Richard Gladstein, Harry Sacher, and Louis F. McCabe.

The five attorneys who volunteered to defend the communists were familiar with leftist causes and personally supported the defendants' rights to espouse communist views. They were Abraham Isserman, George W. Crockett, Jr., Richard Gladstein, Harry Sacher, and Louis F. McCabe. Defendant Eugene Dennis represented himself. The ACLU was dominated by anti-communist leaders during the 1940s, and did not enthusiastically support persons indicted under the Smith Act. However, the ACLU did provide an amicus brief for the Foley Square defendants, endorsing a motion for dismissal.

The defense employed a three-pronged strategy: First, portraying the CPUSA as a conventional political party, which promoted socialism by peaceful means; second, employing the "labor defense" tactic to attack the trial as a capitalist venture which could never provide a fair outcome to proletarian defendants; and third, using the trial as an opportunity to publicize CPUSA policies.

A primary theme of the defense was that the CPUSA sought to convert the US to socialism by education, not by force. The defense claimed that most of the prosecution's documentary evidence came from older texts that pre-dated the 1935 Seventh World Congress of the Comintern, when the CPUSA rejected violence as a means of change. The defense attempted to introduce documents into evidence which represented the CPUSA's advocacy of peace, claiming that these policies superseded the older materials that the prosecution had introduced which emphasized violence. However, Medina excluded most of the defense's material because it did not directly pertain to the specific documents the prosecution had produced. As a result, the defense complained that they were unable to portray the totality of their belief system to the jury. The defense attorneys also used a "labor defense" strategy, by which they attacked the entire trial process, including the prosecutor, the judge, and the jury selection process. The strategy involved verbally disparaging the judge and the prosecutors, and may have been an attempt to provoke a mistrial. Another aspect of the labor defense was an effort to rally popular support to free the defendants, in the hope that public pressure would help achieve acquittals. Throughout the course of the trial, thousands of supporters of the defendants flooded the judge with protests, and marched outside the courthouse in Foley Square. The defense also used the trial as an opportunity to educate the public about their beliefs, so they focused their defense around the political aspects of communism, rather than rebutting the legal aspects of the prosecution's evidence. Defendant Dennis chose to represent himself so he could, in his role as attorney, directly address the jury and explain communist principles.

Courtroom atmosphere

The defense deliberately antagonized the judge by making a large number of objections and motions, which led to numerous bitter engagements between the attorneys and judge Medina. Out of the chaos, an atmosphere of "mutual hostility" arose between the judge and attorneys. Medina came to believe that the defense attorneys were using the trial as an opportunity to publicize communist propaganda, and that the they deliberately disrupted the trial using any means they could. Judge Medina attempted to maintain order by removing defendants who were out of order. In the course of the trial, Medina sent five of the defendants to jail for outbursts, including Hall because he shouted "I've heard more law in a Kangaroo court", and Winston–an African American–for shouting "more than five thousand Negroes have been lynched in this country". Several times in July and August, the judge held defense attorneys in contempt of court, and told them their punishment would be meted out upon conclusion of the trial.

Legal scholar Michal Belknap writes that Medina was "unfriendly" to the defense, and that "there is reason to believe that Medina was biased against the defendants", citing a statement Medina made during pretrial activity: "If we let them do that sort of thing [postpone the trial start], they'll destroy the government". Medina's hostility towards the defense may have been exacerbated by the fact that another federal judge had recently died of a heart attack during a similar trial involving the Smith Act; and Medina came to believe that the defense was deliberately trying to provoke him with the goal of achieving a mistrial. Belknap asserts that the defendants could "insist with complete justification that they were the targets of a political prosecution", and that "rather than attempting to prove eleven individuals guilty of criminal conduct, the prosecution mounted an attack on the CPUSA." Legal scholar Arthur Sabin writes that one of the jurors stated that "we must fight communism to the death" and spoke of his desire to "hang those Commies".

Justice William O. Douglas concluded that judge Medina and the defense attorneys were equally at fault for the antagonism evident in the courtroom.

The defense was not optimistic about the probability of success. After the trial was over, defendant Gates wrote: "The anti-communist hysteria was so intense, and most Americans were so frightened by the Communist issue, that we were convicted before our trial even started". The Washington Post wrote that the purpose of the government's legal attack on the CPUSA was "no so much the protection and security of the state as the exploitation of justice for the purpose of propaganda."

Supreme Court Justice William O. Douglas, after the trial was over, wrote:

"One who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers."

Events outside the courtroom

Vigilantes attacked attendees at a benefit concert in which Paul Robeson performed to raise funds for the Civil Rights Congress, which was paying the legal expenses of the defendants.

During the ten-month trial, the Red Scare intensified across America. Several widely publicized events occurred during the trial may have influenced its outcome: The Judith Coplon Soviet espionage case was in progress; the University of California required all faculty to take an oath asserting that they were not communists; government employee Alger Hiss was accused of being a communist; labor leader Harry Bridges was accused of perjury when he denied being a communist; and the ACLU passed an anti-communist resolution. Two events during the final month of the trial may have been particularly influential: On September 23, 1949, the USSR detonated its first atomic bomb; and on October 1, 1949, the Communists prevailed in the Chinese Civil War.

Two defendants were involved in the Peekskill Riots which took place in August about 35 miles (56 km) north of the Foley Square courthouse. The riots targeted a benefit concert for the Civil Rights Congress (CRC), an organization which provided funding for the legal expenses of communist defendants, including the Foley Square trial defendants. In the summer of 1949, Paul Robeson, a longtime supporter of leftist causes, volunteered to headline a benefit concert for the CRC. The concert was scheduled for August 27, but on the day of the concert, hundreds of vigilantes–mostly members of the Veterans of Foreign Wars and American Legion–blockaded the roads and prevented the audience from arriving. After darkness fell, the|vigilantes attacked the concert organizers, and viciously beat them. The concert was rescheduled for Sunday, September 4, and this time several hundred state police and local sheriff deputies surrounding the campground where the concert would take place. Foley Square trial defendants Irving Potash and Benjamin Davis went to the concert, and heard Robeson, Pete Seeger, and others perform. After the concert, hundreds of vigilantes lined the roads leaving the campground and threw rocks and bottles at the departing vehicles, injuring over 140 persons, including Potash, whose eyes were struck by glass from a broken windshield. The police refrained from stopping the assault. The Foley Square trial was suspended for two days while Potash recovered from his injuries.

Convictions and sentencing

A crowd gathers outside the Foley Square courthouse on October 21, 1949, during the sentencing phase of the trial.

On October 14, 1949, after the defense rested their case, the judge gave the jury instructions to guide them in reaching a verdict. He instructed the jury that they could find the defendants guilty even if the alleged danger of overthrow was not "clear and present"; instead the jury should consider if the defendants had advocated communist policy as a "rule or principle of action" with the intention of inciting overthrow by violence "as speedily as circumstances would permit". The judge's instructions also included the phrase "I find as a matter of law that there is sufficient danger of a substantive evil ..." which would later be challenged by the defense during their appeals. After deliberating for seven and one-half hours, the jury returned guilty verdicts against all eleven defendants. The judge sentenced ten defendants to five years and a $10,000 fine each ($128,056 in 2024 dollars). The eleventh defendant, Robert G. Thompson–a veteran of World War II–was sentenced to three years in consideration of his wartime service. Thompson said that he took "no pleasure that this Wall Street judicial flunky has seen fit to equate my possession of the Distinguished Service Cross to two years in prison."

Immediately after the jury rendered a verdict, Medina turned to the defense attorneys saying he had some "unfinished business" and he held them in contempt of court, and sentenced all of them–including future Congressman George W. Crockett, Jr.–to jail terms ranging from 30 days to six months. The attorneys had no opportunity to respond, and were immediately handcuffed and led to jail. After the trial concluded, Medina received 50,000 letters congratulating him on the trial outcome. The vast majority of the public, and most news media also endorsed the verdict. Seven days after the convictions, President Truman promoted prosecutor John McGohey to a job as a federal judge. A few days later, Time magazine featured judge Medina on its cover.

Post-trial events

Out on bail

Defendant Gus Hall helped lead the CPUSA when he was out on bail, but later fled to Mexico and was captured trying to reach the USSR.

After sentencing, all defendants were released on bail, pending appeal. The $260,000 bail was provided by Civil Rights Congress, a non-profit trust fund which was created to assist CPUSA members with legal expenses. Released on bail, Hall was appointed to a position in the secretariat within the CPUSA. Eugene Dennis was–in addition to his Smith Act charges–also fighting contempt of Congress charges stemming from an incident in 1947 when he refused to appear before the House Unamerican Activities Committee. He appealed the contempt charge, but the Supreme Court upheld his conviction for contempt in March 1950, and he began to serve a one year term at that time.

Legal appeals

See also: First amendment issues related to speech critical of government

The trial resulted in a dozen appeals to the federal Court of Appeals, and five appeals to the Supreme Court. During the course of the appeals, the Korean War began as North Korea invaded South Korea. One of the appeals court decisions, written by judge Learned Hand, upheld the verdict based on analysis of freedom of speech principles. Courts had previously considered a "clear and present danger" test to determine if speech could be outlawed, but Hand deemphasized the element of time, and introduced the notion of testing the gravity and probability of the violence. The most important Supreme Court decision arising from the case was Dennis v. United States, in which the defendants' legal appeal was assisted by the National Lawyers Guild and the ACLU. The 6 to 2 decision, issued on June 4, 1951, upheld Hand's decision; the opinion authored by Justice Fred Vinson stated that the First Amendment does not require that the government must wait "until the putsch is about to be executed, the plans have been laid and the signal is awaited" before it interrupts seditious plots. Justices Hugo Black and William O. Douglas dissented; Black writing

"Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society."

The defense attorneys also appealed their own contempt sentences to the Supreme Court, which upheld the sentences by a 5 to 3 vote in Sacher v. United States.

Prison

Party leader Eugene Dennis was sentenced to five years in prison.

After the Supreme Court issued its decision in June 1951, the defendants were ordered to report to prison on July 2, 1951. While waiting for the Supreme Court to render a decision, CPUSA leaders had become convinced that government prosecutions of Party officials would accelerate, and so, to ensure continuity of their leadership, they decided that four of the defendants should go into hiding and lead the CPUSA from outside prison. When July arrived, only seven defendants reported to prison, and four (Winston, Green, Thompson, and Hall) went into hiding, forfeiting $80,000 bail. Hall was captured in Mexico in 1951, trying to flee to the USSR. Thompson was captured in California in 1952. Both had three years added to their five year sentences. Winston and Green surrendered voluntarily in 1956 after they felt that anti-communist hysteria had diminished.

The defendants did not fare well in prison: Thompson was attacked by an anti-communist inmate; Winston became blind because a brain tumor was not treated promptly; Gates was put into solitary confinement because he refused to lock the cells of fellow inmates; and Davis was ordered to mop floors because he protested against racial segregation in prison.

Release from prison

The defendants were released from prison in the mid 1950s. After release from prison, Eugene Dennis continued to be involved in the CPUSA, and died in 1961. Benjamin J. Davis died in 1964. Jack Stachel, who continued working on the Daily Worker, died on 1966. John Gates became disillusioned with the CPUSA after the revelation of Stalin's Great Purge; he quit the Party in 1958 and later gave a television interview to Mike Wallace, in which he blamed the CPUSA's "unshaken faith" in the USSR for the CPUSA's downfall. Henry Winston was diagnosed with a brain tumor in prison, and became blind as a result. In 1966 he became co-chair of the CPUSA (with Hall) and in 1976 was awarded the Order of the October Revolution by the USSR. After prison, Carl Winter resumed Party activities, became editor of The Worker and died in 1991. Gil Green was released from Leavenworth in 1961, and continued working with the CPUSA to oppose the Vietnam War. Gus Hall had the highest visibility of all the defendants, and served as a party leader for another 40 years; he supported Moscow policies, and ran for president of the US four times from 1972 to 1984, twice with Angela Davis as his vice presidential partner. Party leader William Z. Foster was never tried due to ill health (he was 69 years old at the time of the trial); he retired from the Party in 1957 and died in Moscow in 1961.

Aftermath

Rise of McCarthyism

Four months after the trial finished, senator Joseph McCarthy rose to fame when made his famous "I have here in my hand a list..." speech.

Main article: McCarthyism

The Foley Square trial was a major victory for anti-communists and imparted momentum to the rise of McCarthyism. Three months after the trial, in January 1950, a representative of the Justice Department testified before Congress during appropriation hearings to justify an enlarged budget to support Smith Act prosecutions. He testified that there were 21,105 potential persons that could be indicted under the Smith Act, and that 12,000 of those depended on the precedent set by the Foley Square trial. The FBI had also compiled a list of 200,000 persons in its Communist Index, but since the CPUSA had only around 32,000 members in 1950, the FBI explained the disparity by asserting that for every official Party member, there were ten persons who were loyal to the CPUSA and ready to carry out its orders. The following month, February 1950, senator Joseph McCarthy rose suddenly to national fame when he claimed "I have here in my hand a list" of over 200 communists who were employed in the State Department. Eight months after the convictions, Hoover stated "communists have been and are today at work within the very gates of America…. Wherever they may be, they have in common one diabolic ambition: to weaken and to eventually destroy American democracy by stealth and cunning." Subsequent high-profile hearings involving alleged communists included the 1950 trial of Alger Hiss, and the 1954 investigation of J. Robert Oppenheimer.

Several agencies of the federal government worked to undermine the CPUSA: The Internal Revenue Service investigated 81 organizations that were considered to be subversive, threatening to revoke their tax exempt status; Congress passed a law prohibiting members of subversive organizations from obtaining federal housing benefits; and attempts were made to deny Social Security benefits, veterans benefits, and unemployment benefits to communist sympathizers.

Trials of "second tier" officials

Communist Dorothy Healey was one of the "second tier" defendants prosecuted after the Foley Square trial finished.

The conviction of the eleven leaders was considered by prosecutors to be a "green light" to move against the entire Party leadership structure. Between 1951 and 1956, the Justice Department indicted 126 additional communists under the Smith Act, leading to trials in over a dozen cities. These post-1950 defendants were called "second string" or "second tier" defendants and they included 15 CPUSA members in Los Angeles (including Dorothy Healey), 21 in New York (including Claudia Jones and Elizabeth Gurley Flynn) and others in Honolulu, Pittsburg, Philadelphia, Cleveland, Seattle and other cities. Approximately 89 percent of the second tier defendants were convicted. Some of the defendants in California were able to win acquittals by persuading the jury that they had a legal right to be communists. Until 1956, federal appeals courts upheld all convictions, and the Supreme Court refused to hear an appeal. To supply witnesses for the second tier trials, the Justice Department relied on a dozen informants, who traveled full-time from trial to trial, testifying about communism and the CPUSA. The informants were paid for their time (for example, Budenz earned $70,000 from his activities as a witness) leading journalist Victor Navasky to describe them as "professional witnesses" and to call their objectivity into question.

The second tier defendants had a difficult time finding lawyers to represent them: All five lawyers that worked on the Foley Square trial had been sent to jail for contempt of court, and two of the attorneys–Abraham Isserman and Harry Sacher–were disbarred. Attorneys for other Smith Act defendants routinely found themselves attacked by courts, attorneys' groups, and licensing boards, leading many defense attorneys to shun Smith Act cases. Some defendants were forced to contact over one hundred attorneys before finding one that would accept; defendant Steve Nelson could not find a lawyer in Pennsylvania who would represent him, and was compelled to represent himself; and judges sometimes had to appoint unwilling attorneys for defendants who could not find a lawyer to take the case. The National Lawyers Guild provided some lawyers to the defendants, but in 1953 Attorney General Herbert Brownell threatened to list the Guild as a subversive organization, causing half its members to leave the organization. Many second tier defendants were unable to post bail because the government refused to permit the Civil Rights Congress (CRC) legal defense fund to post bail. The CRC had run afoul of the judicial system because it posted bail for the Foley Square trial defendants, and four of those defendants skipped bail in 1951. Leaders of the CRC were called before a grand jury and asked to identify the donors who had contributed money to the bail fund. Novelist Dashiel Hammet, a manager of the CRC fund, invoked the Fifth Amendment, refused to identify donors, and was sentenced to six months in prison.

Effect on the Communist Party USA

The Foley Square trial decimated the leadership ranks of the CPUSA. The CPUSA, alarmed at the undercover informants that had testified for the prosecution, initiated efforts to identify and exclude informers from its membership. Membership dropped dramatically, and the CPUSA's leadership was marked by confusion and discord. Dennis attempted to provide leadership from within his cell in the Atlanta penitentiary, but prison officials censored his mail and successfully isolated him from the outside world. Similarly, prison officials from the Lewisburg prison prevented Williamson from writing to anyone other than immediate family members. Lacking leadership, the CPUSA suffered from internal dissension and disorder. By 1953, the CPUSA's leadership structure was inoperative. In 1956, Khrushchev revealed the reality of Stalin's purges, causing many remaining CPUSA members to quit in disillusionment. By the late 1950s the CPUSA's membership had dwindled to 5,000, of which over 1,000 may have been FBI informants.

End of the Smith Act prosecutions

In 1951, Justice Hugo Black felt the convictions in the Foley Square trial were unjustified, and his viewpoint prevailed in 1957's Yates decision.

Joseph Stalin died in 1953, setting the stage for a gradual retreat from the post-World War II anti-communist fervor. McCarthyism declined in late 1954 after television journalist Edward R. Murrow and others publicly chastised McCarthy. The end of the Smith Act prosecutions came as a result of an appeal by 14 "second tier" CPUSA officials from California who had been convicted of Smith Act violations: On "Red Monday", June 17, 1957, the Supreme Court issued the Yates v. United States decision, which reversed the California convictions and undermined the 1951 Dennis v. United States decision. Yates was a landmark case which held that contemplation of abstract, future violence may not be prohibited by law, but that urging others to act in violent ways may be outlawed. In his opinion, Justice Hugo Black wrote:

"Doubtlessly, dictators have to stamp out causes and beliefs which they deem subversive to their evil regimes. But governmental suppression of causes and beliefs seems to me to be the very antithesis of what our Constitution stands for. The choice expressed in the First Amendment in favor of free expression was made against a turbulent background by men such as Jefferson, Madison, and Mason–men who believed that loyalty to the provisions of this Amendment was the best way to assure a long life for this new nation and its Government.... The First Amendment provides the only kind of security system that can preserve a free government–one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us."

The Yates decision, along with the companion case Watkins v. United States, undermined the Smith Act and marked the beginning of the end of CPUSA membership inquiries. When the indictments ceased in 1956, 138 persons had been indicted, with cumulative sentences totaling 418 years and $435,500 in fines. The final prisoner's sentence was commuted by President Kennedy on Christmas Eve, 1962.

References

• Auerbach, Jerold S., Unequal Justice: Lawyers and Social Change in Modern America, Oxford University Press, 1977, ISBN 9780195021707
• Belknap, Michal R., Cold War Political Justice: the Smith Act, the Communist Party, and American civil liberties, Greenwood Press, 1977, ISBN 9780837196923
• Belknap, Michal R., "Foley Square Trial", in American political trials, (Michal Belknap, Ed.), Greenwood Publishing Group, 1994, ISBN 9780275944377
• Belknap, Michal R., "Cold War, Communism, and Free Speech", in Historic U.S. Court Cases: An Encyclopedia (Vol 2), (John W. Johnson, Ed.), Taylor & Francis, 2001, ISBN 9780415930192
• Martelle, Scott, The Fear Within: Spies, Commies, and American Democracy on Trial, Rutgers University Press, 2011, ISBN 9780813549385
• Morgan, Ted, Reds: McCarthyism in Twentieth-Century America, Random House Digital, Inc., 2004, ISBN 9780812973020
• Navasky, Victor S., Naming Names, Macmillan, 2003, ISBN 9780809001835
• Redish, Martin H., The Logic of Persecution: Free Expression and the McCarthy Era, Stanford University Press, 2005, ISBN 9780804755931
• Sabin, Arthur J., In Calmer Times: the Supreme Court and Red Monday, University of Pennsylvania Press, 1999, ISBN 9780812235074
• Starobin, Joseph R., American Communism in Crisis, 1943–1957, University of California Press, 1975, ISBN 9780520027961
• Walker, Samuel, In Defense of American Liberties: A History of the ACLU, Oxford University Press, 1990, ISBN 0195045394

Further reading

• Caute, David, The Great Fear: the Anti-Communist purge under Truman and Eisenhower, Simon and Schuster, 1978, ISBN 9780671226824
• McKiernan, John, "Socrates and the Smith Act: the Dennis prosecution and the trial of Socrates in 399 B.C.", Temple Political and Civil Rights Law Review, Vol. 15 (Fall, 2005), pp 65–119
• Nathanson, Nathaniel, "The Communist trial and the clear-and-present-danger test", Harvard Law Review, Vol. 63, No. 7 (May, 1950), pp 1167–1175
• Schrecker, Ellen, Many are the Crimes: McCarthyism in America, Princeton University Press, 1999, ISBN 9780691048703
• Smith, Craig R., Silencing the Opposition: How the U.S. Government Suppressed Freedom of Expression During Major Crises, SUNY Press, 2011, ISBN 9781438435190
• Steinberg, Peter L., The Great "Red menace": United States Prosecution of American Communists, 1947–1952, Greenwood Press, 1984, ISBN 9780313230202
• Stone, Geoffrey R., Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism, W. W. Norton, 2004, ISBN 9780393058802

Selected works by Smith Act defendants

• Davis, Benjamin, Communist councilman from Harlem: autobiographical notes written in a federal penitentiary, International Publishers Co, 1991, ISBN 9780717806805
• Dennis, Eugene, Ideas They Cannot Jail, International Publishers, 1950
• Dennis, Eugene, Letters from prison, International Publishers, 1956
• Flynn, Elizabeth Gurley, et al., 13 Communists Speak to the Court, New Century Publishers, 1953
• Foster, William Z., History of the Communist Party of the United States, Greenwood Press, 1968, ISBN 9780837104232
• Gates, John, The Story of an American Communist, Nelson, 1958
• Green, Gil, Cold War Fugitive: a personal story of the McCarthy years, International Publishers, 1984, ISBN 9780717806157
• Healey, Dorothy; and Isserman, Maurice, California Red: A Life in the American Communist Party, University of Illinois Press, 1993, ISBN 9780252062780
• Lannon, Albert, Second String Red: The Life of Al Lannon, American Communist, Lexington Books, 1999, ISBN 9780739100028
• Nelson, Steve, Steve Nelson, American Radical, University of Pittsburgh Press, 1992, ISBN 9780822954712
• Scales, Junius Irving, et al., Cause at Heart: A Former Communist Remembers, University of Georgia Press, 2005, ISBN 9780820327853
• Williamson, John, Dangerous Scot: the Life and Work of an American "Undesirable"., International Publishers, 1969
• Winston, Henry, Africa's Struggle for Freedom, the U.S.A. and the U.S.S.R.: a selection of political analyses, New Outlook Publishers, 1972

Selected works by prosecution witnesses

• Budenz, Louis, This is My Story, McGraw-Hill, 1947
• Budenz, Louis, The Techniques of Communism, Henry Regnery, 1954, ISBN 0405099371
• Calomiris, Angela, Red Masquerade: Undercover for the F. B. I., Lippincott, 1950
• Philbrick, Herbert, I Led Three Lives: Citizen, 'Communist', Counterspy, Hamilton, 1952