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Smith Act trials of Communist Party leaders

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Smith Act trials of Communist Party leaders
Two men dressed in suits are surrounded by persons holding signs.
Defendants Robert Thompson and Benjamin Davis surrounded by supporters during the 1949 trial
When1949–1958
AllegationViolating the Smith Act by conspiring to violently overthrow the government
Defendants144 leaders of the Communist Party USA
WhereFederal courthouses in New York, Los Angeles, Honolulu, Pittsburgh, Philadelphia, Cleveland, Seattle, Baltimore, Seattle, Detroit, St. Louis, Denver, Boston, Puerto Rico, and New Haven.
OutcomeOver 100 convictions, with sentences up to six years in prison, and $10,000 fine, each
This article is about trials that involved the CPUSA. For other trials, see Smith Act trial (disambiguation).

The Smith Act trials of Communist Party leaders were a series of trials held from 1949 to 1958 in which leaders of the Communist Party of the United States (CPUSA) were accused of violating the Smith Act by conspiring to violently overthrow the government. The prosecution argued that the CPUSA endorsed a violent overthrow of the government; 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 trials led to the important US Supreme Court decisions Dennis v. United States (1951) and Yates v. United States (1957).

The first trial, known as the Smith Act trial of 1949 or the Foley Square trial, was one of the lengthiest and most contentious trials in American history. The trial was featured on the cover of Time magazine twice during the course of the trial, and large numbers of supporters of the communist defendants protested outside the courthouse daily. 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 undercover informants who described the goals of the CPUSA, interpreted communist texts, and testified that they believed the CPUSA advocated the violent overthrow of the US government.

While first 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 up to 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 first trial, the government prosecutors–encouraged by their success–tried over 100 additional CPUSA officers of violating the Smith Act. Some were tried solely because they were members of the Party. Many of these defendants had difficulty finding attorneys to represent them. The trials decimated the leadership of the CPUSA, and its membership plunged. In 1957, eight years after the first trial, the US Supreme Court's Yates decision signaled an end to similar prosecutions, by holding that for the Smith Act to be violated, defendants could be prosecuted only for their actions, not for their beliefs.

Background

A political cartoon showing a person walking down steps from "strikes" to "chaos"
The first manifestation of anti-communism in the United States was the First Red Scare, illustrated by this 1919 political cartoon.

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 Americans were fearful that communism would lead to a revolution within the US.[1] 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.[2]

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.[3] The first persons convicted under the Smith Act were members of the Socialist Workers Party (SWP) in Minneapolis in 1941.[4] Leaders of the CPUSA, bitter rivals of the Trotskyist SWP, supported the Smith Act prosecution of the SWP–a decision they would later regret.[5] In 1943, in the midst 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.[6] 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.[7]

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.[7] 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.[8] The CPUSA was not especially large or influential, and 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.[9]

Cold War

Near the end of the war, Allied leaders met at the Yalta Conference and agreed that the Eastern European nations would be permitted to hold elections and form their own governments. After the conclusion of World War II, the USSR did not carry though on that agreement, and it occupied several Eastern European countries, marking the start of the Cold War. Other events caused Americans to feel that communism was a significant danger, including the Stalinist threats in Greek Civil War (1946–1949), the Czechoslovak coup d'état of 1948, and revelations of past instances of communist espionage in the US during 1930s and 1940s.[10] The growing influence of communism around the world motivated the Department of Justice–spearheaded by the Federal Bureau of Investigation (FBI)–to resume its investigation of communists within the United States.[7]

1949 trial

A portrait of a man, standing, holding papers
J. Edgar Hoover initiated the case.

After the conclusion of World War II, the FBI and the Justice Department sought to prosecute the CPUSA. 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.[11] 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 bring charges against the CPUSA leaders with the intention of rendering the Party ineffective.[12] 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.[13] The indictment, issued on June 29, 1948, asserted that the CPUSA had been in violation of the Smith Act since July 1945, when Foster had taken over leadership from Browder.[14] The twelve defendants, arrested in late July, were all members of the National Board of the CPUSA:[14][15]

Eleven well-dressed men, seated for a formal photograph.
The defendants. Back row (left to right): Stachel, Potash, Winter, Davis, Gates, Green. Front row: Thompson, Winston, Dennis, Hall, Williamson

Hoover had hoped that all 55 members of the CPUSA's National Committee would be indicted, and was disappointed that the prosecutors had chosen to pursue only twelve.[16] A week before they were arrested, Hoover complained to the Justice Department–recalling the arrests and convictions of over one hundred leaders of the Industrial Workers of the World (IWW) in 1917–"the IWW was crushed and never revived, similar action at this time would have been as effective against the Communist Party."[17]

Start of the trial

A large, stately building
The 1949 trial was held in the Foley Square federal courthouse in Manhattan.

The 1949 trial was presided over by Judge Harold Medina, a former Columbia University professor who had been a judge for 18 months when the trial began.[18] Before he was a judge, Medina successfully defended a German-American defendant in the Cramer v. United States treason case, which he argued before the Supreme Court.[19][20] 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.[21][22] Although later trials surpassed it, in 1949 it was the longest federal trial in US history.[21][23] The trial was one of the country's most contentious legal proceedings and sometimes had a "circus-like atmosphere".[24] 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".[25] Four hundred police officers were assigned to the courthouse on the opening day of the trial.[21] During the trial, there were days when several thousand picketers protested in Foley Square outside the courthouse, chanting slogans like "Adolf Hitler never died / He's sitting at Medina's side".[22] 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.[26][21]

Before the 1949 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.[27] Later, supporters similarly flooded judge Harold Medina with telegrams and letters urging him to dismiss the charges.[28] In spite of the aggressive defense tactics and a voluminous letter-writing campaign directed at Medina, he stated "I will not be intimidated".[29] The defense made pre-trial motions arguing that the defendants' right to trial by a jury of peers had been denied, because at that time, a potential grand juror had to meet a minimum property requirement, effectively eliminating the less affluent from service.[30] The defense also argued that the jury selection process to be used for their trial was similarly flawed.[31] 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.[32] Although twelve CPUSA members were indicted, only eleven were tried, because William Z. Foster was not brought to trial due to his ill health.

Events outside the courtroom

A portrait of a well-dressed man.
Vigilantes attacked attendees at a benefit concert in which Paul Robeson performed to raise funds for the Civil Rights Congress to pay the legal expenses of the defendants.

During the ten-month trial, the Red Scare intensified across America. Several widely publicized events occurred during the 1949 trial which may have influenced the 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; former government employee Alger Hiss was tried for perjury stemming from accusations that he was a communist (a trial held in the same building as the 1949 Smith Act trial–the Foley Square courthouse); labor leader Harry Bridges was accused of perjury when he denied being a communist; and the ACLU passed an anti-communist resolution.[33][34] Two events during the final month of the trial may have been particularly influential: On September 23, 1949, Truman announced that the USSR detonated its first atomic bomb; and on October 1, 1949, the Chinese Communist party prevailed in the Chinese Civil War.[33]

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 1949 trial defendants.[35] Paul Robeson volunteered to headline a benefit concert for the CRC on August 27, but the concert was disrupted by vigilantes who attacked the concert organizers.[36] Defendants Irving Potash and Benjamin Davis went to the rescheduled concert on September 4, and heard Robeson 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.[37] The police refrained from stopping the assault.[38] The trial was suspended for two days while Potash recovered from his injuries.[39]

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.[32] To prove this, the prosecution called witnesses who 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.[40] The prosecution witnesses testified about the goals and policies of the CPUSA, and they interpreted the statements of pamphlets and books (such as The Communist Manifesto) written by authors such as Karl Marx and Joseph Stalin.[41] 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.[7]

Prosecution witness Angela Calomiris was recruited by the FBI in 1942, and infiltrated the CPUSA, gaining access to a membership roster.[42] During the seven years Calomiris was an informant, the FBI paid her a salary.[42] In her testimony, Calomiris identified four of the defendants as members of the CPUSA, and provided information about its organization.[43] 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.[44]

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.[32] 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.[32]

Defense

Five well-dressed men standing and conversing.
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 socialist viewpoints. They were Abraham Isserman, George W. Crockett, Jr., Richard Gladstein, Harry Sacher, and Louis F. McCabe.[45][21] 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.[46]

The defense employed a three-pronged strategy: First, they sought to portray the CPUSA as a conventional political party, which promoted socialism by peaceful means; second, they employed what they called a "labor defense" tactic to attack the trial as a capitalist venture which could never provide a fair outcome to proletarian defendants; and third, they used the trial as an opportunity to publicize CPUSA policies.[47]

A primary theme of the defense was that the CPUSA sought to convert the US to socialism by education, not by force.[48] 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.[49] 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.[48] 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.[50]

The defense attorneys also developed a labor defense strategy, by which they attacked the entire trial process, including the prosecutor, the judge, and the jury selection process.[51] The strategy involved verbally disparaging the judge and the prosecutors, and may have been an attempt to provoke a mistrial.[52] 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.[28] 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.[53] Defendant Dennis chose to represent himself so he could, in his role as attorney, directly address the jury and explain communist principles.[53]

Courtroom atmosphere

The defense deliberately antagonized the judge by making a large number of objections and motions,[18] which led to numerous bitter engagements between the attorneys and Judge Medina.[54] Out of the chaos, an atmosphere of "mutual hostility" arose between the judge and attorneys.[52] 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.[28] 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".[55] 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.[56]

Fellow judge James L. Oakes described Medina as a fair and reasonable judge, and writes that "after the judge saw what the lawyers were doing, he gave them a little bit of their own medicine, too."[20] 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".[57] Medina's attitude 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.[28][58] Medina came to believe that the defense was deliberately trying to provoke him into committing a legal error with the goal of achieving a mistrial, but Medina did not succumb to the temptation. [50][20]

The opinion of most Americans, as well as contemporary media, was overwhelming in favor of conviction.[59] 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".[60] The Washington Post wrote that the purpose of the government's legal attack on the CPUSA was "not so much the protection and security of the state as the exploitation of justice for the purpose of propaganda."[61]

Convictions and sentencing

Several police officers on horses watch a large crowd standing in a public park.
A crowd gathers outside the Foley Square courthouse during the sentencing phase of the 1949 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 the prosecution was not required to prove that the danger of violence was "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".[62] 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.[62] After deliberating for seven and one-half hours, the jury returned guilty verdicts against all eleven defendants.[63] The judge sentenced ten defendants to five years and a $10,000 fine each ($128,056 in 2024 dollars[64]). The eleventh defendant, Robert G. Thompson–a veteran of World War II–was sentenced to three years in consideration of his wartime service.[65] 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."[66]

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 to jail terms ranging from 30 days to six months.[67][21] Since the contempt sentences were issued under Rule 42(a) of the Federal Rules of Criminal Procedure, no hearings were required for the contempt charges, and the attorneys were immediately handcuffed and led to jail.[68][69] After the 1949 trial concluded, Medina was hailed as a national hero and received 50,000 letters congratulating him on the trial outcome.[70] The vast majority of the public, and most news media also endorsed the verdict.[63] Seven days after the convictions, President Truman promoted prosecutor John McGohey to a job as a federal judge.[71] A few days later, Time magazine featured Judge Medina on its cover, and soon thereafter he was asked to consider running for governor of New York.[72]

Out on bail

A jail mug shot of a man.
Party leader Eugene Dennis was sentenced to five years in prison.

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.[73] 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 Un-American 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.[74]

Prison

After the Supreme Court issued its decision in June 1951, the defendants were ordered to report to prison on July 2, 1951.[75] 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.[75] When July arrived, only seven defendants reported to prison, and four (Winston, Green, Thompson, and Hall) went into hiding, forfeiting $80,000 bail.[75] 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.[75] Winston and Green surrendered voluntarily in 1956 after they felt that anti-communist hysteria had diminished.[75]

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.[75][76]

Legal appeals of 1949 trial

Perception of communism in the United States

Portrait of a man in a suit.
Senator Joseph McCarthy was a prominent anti-communist.

The defendants of the 1949 trial appealed to the federal Court of Appeals, and then to the Supreme Court.[52] During the course of the legal appeals, the Cold War continued unabated in the international arena. In September 1950, President Truman signed National Security Council Report 68, which outlined a significant military expansion to combat perceived communist threats. In December 1950, Truman declared a national emergency in response to the Korean war. During the appeal process, the First Indochina War continued in Vietnam, in which communist forces in the north fought against French Union forces in the south. Also in these years, the US expanded the Radio Free Europe broadcasting system in an effort to promote Western political ideals in Eastern Europe. In March 1951, American communists Julius and Ethel Rosenberg were convicted of spying for the USSR. In 1952 the US exploded its first hydrogen bomb, and the USSR followed suit in 1953.[77]

Domestically, the Cold War was also in the forefront of national consciousness. In 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.[78] In September 1950, the US Congress passed the McCarran Internal Security Act, which required communist organizations to register with the government, and formed the Subversive Activities Control Board to investigate persons suspected of engaging in subversive activities. High-profile hearings involving alleged communists included the 1950 conviction of Alger Hiss, the 1951 trial of the Rosenbergs, and the 1954 investigation of J. Robert Oppenheimer.[60]

The convictions in the 1949 trial encouraged the Department of Justice to prepare for additional prosecutions of CPUSA leaders. 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 1949 trial.[79] The FBI had also compiled a list of 200,000 persons in its Communist Index; 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.[80] Seven months after the convictions, in May 1950, Hoover gave a radio address in which he declared "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."[81]

In addition to the Department of Justice, other federal government agencies 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.[82]

Appeal to the federal Court of Appeals

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

The first major appeal by the defendants of the 1949 trial was to the Second Circuit Court of Appeals, in which they raised issues about the use of informant witnesses, the impartiality of the jury and judge, the judge's conduct, and the constitutionality of the Smith Act.[83] The federal appeals court heard oral arguments in the case on June 21–23, 1950, and two days later, on June 25, North Korean forces invaded South Korea, marking the start of the Korean War. During the two months that the appeals court judges were forging their opinions, the Korean War dominated the headlines.[84] In August, the appeals court unanimously upheld the convictions in an opinion written by judge Learned Hand which was based upon analysis of freedom of speech principles.[84][85] Courts had previously considered a "clear and present danger" test to determine if speech could be outlawed. Hand augmented the clear and present danger test by treating it as a balancing test; he also deemphasized the element of time, and introduced the notion of testing the gravity and probability of the violence.[86] In his opinion, Hand wrote

"In each case they [the courts] must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.... The American Communist Party, of which the defendants are the controlling spirits, is a highly articulated, well contrived, far spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are infused with a passionate Utopian faith that is to redeem mankind.... The violent capture of all existing governments is one article of the creed of that faith [communism], which abjures the possibility of success by lawful means."[87]

Dennis v. United States

Main article: Dennis v. United States
A formal portrait of a older man, sitting, in judicial robes
Chief Justice Fred M. Vinson authored the majority opinion in Dennis v. United States

The defendants appealed the federal Appeals Court decision to the Supreme Court in Dennis v. United States. During the Supreme Court appeal, the defendants were assisted by the National Lawyers Guild and the ACLU.[84] The Supreme Court limited its consideration to the questions of the constitutionality of the Smith Act and the jury instructions, and did not rule on the issues of impartiality, jury composition, or informant witnesses.[88] The 6–2 decision, issued on June 4, 1951, upheld Hand's decision. The opinion authored by Chief 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.[89] Vinson analyzed the clear and present danger test, and considered when and how it could be applied to impose restrictions on speech.[90] In his opinion, Vinson wrote "Chief Judge Learned Hand, writing for the majority below, interpreted the [clear and present danger] phrase as follows: 'In each case, [courts] must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words."[91]

Vinson's opinion also addressed the contention that Medina's jury instructions were faulty. The defendants claimed the instructions "I find as matter of law that there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution" were erroneous, but Vinson's opinion concluded that the instructions were an appropriate interpretation of the Smith Act statute.[91]

At the time of the Dennis decision, the Supreme Court was bitterly divided on the First Amendment issues, leading Justices Hugo Black and William O. Douglas dissent from the majority opinion.[90] In his dissent, Black wrote "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."[92]

Sacher v. United States

Main article: Sacher v. United States

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.

Justice William O. Douglas's opinion in Sacher v. United States[93]

The defense attorneys also appealed their own contempt sentences, which were handed out by Judge Medina under Rule 42 of the Federal Rules of Criminal Procedure.[94] The attorneys raised a variety of issues on appeal, including the purported misconduct of the judge, and the claim that they were deprived of due process because there was no hearing to evaluate the merits of the contempt charge. The attorneys also argued that the contempt charges would prevent future CPUSA defendants from obtaining counsel, because attorneys would be afraid of judicial retaliation.[95][96] The attorneys' initial appeal to the federal appeals court was not successful: the court reviewed Medina's actions, and reversed some specifications of contempt, but affirmed the convictions.[97][95] The attorneys then appealed to the Supreme Court which denied the initial petition, but later reconsidered and accepted the appeal.[98] The Supreme Court limited their review to the question "was the charge of contempt, as and when certified, one which the accusing judge was authorized under Rule 42(a) to determine and punish himself; or was it one to be adjudged and punished under Rule 42(b) only by a judge other than the accusing one and after notice, hearing, and opportunity to defend?".[95] The Supreme Court, in an opinion written by Justice Jackson, upheld the contempt sentences by a 5–3 vote.[99] Jackson's opinion stated that "summary punishment always, and rightly, is regarded with disfavor, and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary."[100]

Trials of "second tier" officials

A photo of a smiling lady, standing in a jail.
Communist Dorothy Healey was one of the "second tier" defendants prosecuted after the 1949 trial finished.

After the 1949 convictions, prosecutors waited until the constitutional issues were settled by the Supreme Court before they tried additional leaders of the CPUSA. So when the 1951 Dennis decision upholding the convictions was announced, prosecutors initiated indictments of 132 additional CPUSA leaders, leading to trials in over a dozen cities.[101][102] 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, Pittsburgh, Philadelphia, Cleveland, Seattle, Baltimore, Seattle, Detroit, St. Louis, Denver, Boston, Puerto Rico, and New Haven.[103] Some of the defendants in California were able to win acquittals by persuading the jury that they had a legal right to be communists.[104] Until 1956, federal appeals courts upheld all convictions, and the Supreme Court refused to hear an appeal.[102] 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.[105]

The second tier defendants had a difficult time finding lawyers to represent them: All five lawyers that worked on the 1949 trial had been sent to jail for contempt of court,[68] and two of the attorneys–Abraham Isserman and Harry Sacher–were disbarred.[106] 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.[107] Some defendants were forced to contact over one hundred attorneys before finding one that would accept;[108] defendant Steve Nelson could not find a lawyer in Pennsylvania who would represent him, and was compelled to represent himself;[109] and judges sometimes had to appoint unwilling attorneys for defendants who could not find a lawyer to take the case.[110] 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.[111] 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 1949 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.[112]

Yates v. United States

Main article: Yates v. United States
A formal portrait of a judge, in his robes, sitting.
Justice John Marshall Harlan II wrote the majority opinion for 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.[113] 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 6–1 Yates v. United States decision, which reversed the California convictions and undermined the 1951 Dennis decision. By the time of the Yates decision, four of the Supreme Court Justices that approved the 1951 Dennis decision had been replaced, including Chief Justice Vinson, who was replaced by Chief Justice Earl Warren.[90] Yates 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.[114] In his majority opinion, Justice John Marshall Harlan introduced the notion of explicitly balancing society's right of self-preservation against the right to free speech.[90] In his opinion, he wrote:

We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not.... In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough."[115][116]

The Yates decision outraged some conservative members of the US Congress, leading to the introduction of legislation that would limit judicial review of certain sentences related to sedition and treason; but the legislation was not passed.[117]

Noto v. United States

Main article: Noto v. United States

Another Supreme Court case resulting from a trial of a second-tier CPUSA leader was the 1961 Noto v. United States decision.[118] By a unanimous vote, the court reversed the conviction of John Francis Noto, a CPUSA member from New York, because the evidence presented at trial was not sufficient to demonstrate that the Party was advocating action (as opposed to mere doctrine) of forcible overthrow of the government.[119] The majority opinion was authored by Justice Harlan, who wrote:

"The evidence was insufficient to prove that the Communist Party presently advocated forcible overthrow of the Government not as an abstract doctrine, but by the use of language reasonably and ordinarily calculated to incite persons to action, immediately or in the future.... In order to support a conviction under the membership clause of the Smith Act, there must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it."[120]

In their concurring opinions, Justices Black and Douglas went further, and argued that the membership clause of the Smith Act was unconstitutional on its face as a violation of the First Amendment; Douglas writing "the utterances, attitudes, and associations in this case ... are, in my view, wholly protected by the First Amendment, and not subject to inquiry, examination, or prosecution by the Federal Government."[118][119]

Scales v. United States

Main article: Scales v. United States

In 1958, Junius Scales became the final CPUSA member convicted under the Smith Act, and the only person convicted under the membership clause of the Smith Act (all others were convicted of conspiring to overthrow the government).[121] Scales appealed his conviction to the Supreme Court in Scales v. United States.[122][123] Scales contended that the 1950 McCarran Internal Security Act rendered the Smith Act's membership clause ineffective, because the McCarren Act explicitly stated that membership in a communist party does not constitute a per se violation of any criminal statute.[122] In 1961, the Supreme Court, in a 5–4 decision, upheld the conviction of Scales, finding that the Smith Act membership clause was not obviated by the McCarran Act, because the Smith Act required prosecutors to prove first, that there was direct advocacy of violence; and second, that the defendant's membership was substantial and active, not merely passive or technical.[124] Two Justices of the Supreme Court who had approved the Yates decision in 1957, Harlan and Frankfurter, voted to uphold the conviction.[117] Scales' sentence was commuted by President Kennedy on Christmas Eve, 1962, making Scales the final Smith Act defendant released from prison.[125]

Aftermath

The Yates and Noto decisions undermined the Smith Act and marked the beginning of the end of CPUSA membership inquiries.[126] When the trials came to an end in 1958, 144 persons had been indicted, resulting in 105 convictions, with cumulative sentences totaling 418 years and $435,500 in fines.[127] The Smith Act, 18 U.S.C. § 2385, has not been repealed.[128]

A jail mug shot of a man.
Defendant Gus Hall ran for president four times after being released from prison.

The Smith Act trials decimated the leadership ranks of the CPUSA.[51] Immediately after the 1949 trial, the CPUSA–alarmed at the undercover informants that had testified for the prosecution–initiated efforts to identify and exclude informers from its membership. The FBI encouraged these suspicions by planting fabricated evidence which suggested that many innocent Party members were FBI informants.[129] 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.[102] Similarly, prison officials from the Lewisburg prison prevented Williamson from writing to anyone other than immediate family members.[102] Lacking leadership, the CPUSA suffered from internal dissension and disorder, and by 1953 the CPUSA's leadership structure was inoperative.[102][130] In 1956, Khrushchev revealed the reality of Stalin's purges, causing many remaining CPUSA members to quit in disillusionment.[131] By the late 1950s the CPUSA's membership had dwindled to 5,000, of which over 1,000 may have been FBI informants.[132]

The defendants of the 1949 trial were released from prison in the mid 1950s. After release from prison, Gus Hall had the highest visibility of all the defendants, and served as a party leader for another 40 years; he supported the policies of the USSR, and ran for president of the US four times from 1972 to 1984, twice with Angela Davis as his vice presidential partner.[76] 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.[76] 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.[133] In 1966, Henry Winston became co-chair of the CPUSA (with Hall) and in 1976 was awarded the Order of the October Revolution by the USSR.[76] After prison, Carl Winter resumed Party activities, became editor of The Worker and died in 1991.[76] Gil Green was released from Leavenworth in 1961, and continued working with the CPUSA to oppose the Vietnam War.[76] Party leader William Z. Foster was never tried due to ill health (he was 69 years old at the time of the 1949 trial); he retired from the Party in 1957 and died in Moscow in 1961.[134] Defense attorney George W. Crockett, Jr. later became a congressman for the state of Michigan.[135]

Footnotes

  1. ^ Murray, Robert K. (1955), Red Scare: A Study in National Hysteria, 1919-1920, University of Minnesota Press, ISBN 0313226733.
  2. ^ Walker, pp 128–133.
  3. ^ The Smith Act is 18 U.S.C. § 2385. The provision most relevant to the Smith Act trials prohibited "advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence...".
  4. ^ Belknap (1994), p 179. President Roosevelt insisted on the prosecution because the SWP had challenged a Roosevelt ally.
  5. ^ Smith, Michael Steven, "Smith Act Trials, 1949", in Encyclopedia of the American Left, Oxford University Press, 1998, p 756.
  6. ^ Belknap (1994), pp 196, 207.
    See also: Ribuffo, Leo, "United States v. McWilliams: The Roosevelt Administration and the Far Right", in Belknap (1994), pp 179–206.
  7. ^ a b c d Belknap (1994), p 209.
  8. ^ Belknap (1994), p 210.
    Hoover, J. Edgar, Masters of Deceit: the Story of Communism in America and How to Fight It, Pocket Books, 1958, p 5 (80,000 peak in 1944).
  9. ^ Belknap (1994), p 210. Truman quoted by Belknap. Belknap writes that Truman considered the CPUSA to be a "non problem".
  10. ^ Belknap (1994), p 210.
  11. ^ Redish, pp 81–82, 248. Redish cites Schrecker and Belknap.
    Belknap (1994), p 210.
    Powers, p 214.
  12. ^ Belknap (1994), p 210.
    Redish, pp 81–82.
    Redish, p 81 (Hoover).
  13. ^ Redish, pp 81–82.
  14. ^ a b Belknap (1994), p 211.
  15. ^ Belknap (1977), p 51.
    Belknap (1994), p 207.
    Lannon, p 122.
    Morgan, p 314.
    Powers, p 215.
  16. ^ Powers, p 215.
  17. ^ Morgan, p 314. Hoover quoted by Morgan.
    Powers, p 215.
  18. ^ a b Morgan, p 314.
    Sabin, p 41.
  19. ^ Cramer v. United States, 325 U.S. 1, 1945.
  20. ^ a b c Oakes, p 1460.
  21. ^ a b c d e f "Communist Trial Ends with 11 Guilty", Life, October 24, 1949, p 31.
  22. ^ a b Morgan, p 315.
  23. ^ Longer trials have been held since then, for example a 20-month trial in 1988.
  24. ^ Walker, p 185.
    Morgan, p 315.
    Sabin, pp 44–45. "Circus-like" are Sabin's words.
  25. ^ "Communists: The Little Commissar", Time, April 25, 1949 (Cover photo: Eugene Dennis).
    "Communists: The Presence of Evil", Time: October 24, 1949. (Cover photo: Harold Medina).
    "Communists: the Field Day is Over", Time, (article, not cover), August 22, 1949.
    "Communists: Evolution or Revolution?", Time, April 4, 1949.
    See also Life magazine articles "Communist trial ends with 11 guilty", Life, October 24, 1949, p 31; and "Unrepentant reds emerge", Life, March 14, 1955, p 30.
  26. ^ Walker, p 186.
  27. ^ Belknap (1994), p 212.
  28. ^ a b c d Redish, p 82.
  29. ^ Belknap (1994), p 218. Medina quoted by Belknap.
  30. ^ Belknap (1994), p 213.
    Walker, p 185.
    Starobin, p 206.
    The appellate decision regarding the jury selection methods is 83 F.Supp. 197 (1949).
  31. ^ Belknap (1994), p 213.
  32. ^ a b c d Belknap (1994), p 214.
  33. ^ a b Sabin, p 45.
  34. ^ Johnson, John W., "Icons of the Cold War: The Hiss-Chambers Case", in Historic U.S. Court Cases: An Encyclopedia (Vol 1), (John W. Johnson, Ed.), Taylor & Francis, 2001, p 79, ISBN 9780415930192 (Hiss in same building).
  35. ^ Martelle, p 193.
  36. ^ Martelle, pp 193–199.
  37. ^ Belknap (1977), p 105.
  38. ^ Martelle, pp 197–204.
  39. ^ Martelle, pp 204–205.
  40. ^ Belknap (1994), pp 216–217.
  41. ^ Belknap (1994), p 214.
    Belknap (1994), p 209.
  42. ^ a b Mahoney, M.H., Women in Espionage: A Biographical Dictionary, Santa Barbara, California: ABC-CLIO, 1993, pp 37–39.
  43. ^ "Girl Official of Party Stuns Reds at Trial", Chicago Daily Tribune, April 27, 1949, p 21.
  44. ^ Porter, Russell (April 29, 1949). "Communist Drive in Industry Bared". The New York Times. p. 11.
  45. ^ Sabin, p 42.
    Attorney Maurice Sugar participated in an advisory role.
  46. ^ Walker, pp 185–187. However, many local affiliates of the ACLU supported communist defendants.
  47. ^ Walker, p 185.
    Belknap (1994), p 217.
    Sabin, pp 44–46.
  48. ^ a b Belknap (1994), p 219.
  49. ^ Belknap (1994), pp 219–220.
    Starobin, p 207.
  50. ^ a b Belknap (1994), p 220.
  51. ^ a b Redish, pp 81–82.
  52. ^ a b c Sabin, p 46. "Mutual hostility" is Sabin's characterization.
  53. ^ a b Belknap (1994), p 218.
  54. ^ Redish, p 82.
    Sabin, p 46.
  55. ^ Sabin, pp 46–47. Sabin writes that only four defendants were cited.
    Morgan, p 315 (Morgan erroneously quotes Winston as saying 500–the correct quote is 5,000).
    Martelle, p 175.
  56. ^ Martelle, p 190.
  57. ^ Belknap (1994), p 212. On page 220 Belknap gives more assertions of Medina's bias.
  58. ^ Belknap (2001), p 860.
  59. ^ Belknap (1994), p 217. Belknap writes that 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". The New Republic quoted by Belknap.
  60. ^ a b Belknap (1994), p 208.
  61. ^ Belknap (1994), p 214. Washington Post quoted by Belknap.
  62. ^ a b Sabin, p 45.
    Belknap (1994), p 221.
    Redish, p 87.
    The full instruction from Medina to the jury was "I find as a matter of law that there is sufficient danger of a substantive evil that the Congress had a right to prevent, to justify the application of the statute under the First Amendment of the Constitution."
  63. ^ a b Belknap (1994), p 221.
  64. ^ 1634–1699: McCusker, J. J. (1997). How Much Is That in Real Money? A Historical Price Index for Use as a Deflator of Money Values in the Economy of the United States: Addenda et Corrigenda (PDF). American Antiquarian Society. 1700–1799: McCusker, J. J. (1992). How Much Is That in Real Money? A Historical Price Index for Use as a Deflator of Money Values in the Economy of the United States (PDF). American Antiquarian Society. 1800–present: Federal Reserve Bank of Minneapolis. "Consumer Price Index (estimate) 1800–". Retrieved February 29, 2024.
  65. ^ Morgan, p 317.
  66. ^ Belknap (1994), p 221.
    Morgan, p 317. Thompson quoted by Morgan.
  67. ^ Defendant Dennis, acting as his own attorney during the 1949 trial, also received a six-month contempt sentence. Attorney Maurice Sugar, who participated in an advisory role, was not cited for contempt.
  68. ^ a b Sabin, p 47.
  69. ^ Some of the contempt sentences were postponed pending appeal; for instance, Crockett served four months in an Ashland, Kentucky Federal prison in 1952. See Smith, Jessie Carney, Notable Black American Men, Volume 1, Gale, 1998, p 236, ISBN 9780787607630.
  70. ^ Belknap (1994) p 221 (50,000 letters).
    Oakes, p 1460 ("national hero").
  71. ^ "McGohey, John F. X.", Biographical Directory of Federal Judges, Federal Judicial Center. Retrieved February 20, 2012. Appointment was on October 21, 1949.
  72. ^ Time, October 24, 1949. Retrieved 31 January 2012.
    Oakes, p 1460 (governor).
  73. ^ Belknap (1977), p 123.
  74. ^ Associated Press, "Justices Uphold Red Conviction", Spokesman-Review, March 28, 1950.
  75. ^ a b c d e f Belknap (1994), pp 224–225.
  76. ^ a b c d e f Martelle, pp 256–257.
  77. ^ Gregory, Ross, Cold War America, 1946 to 1990, Infobase Publishing, 2003, pp 48–53, ISBN 9781438107981.
    Kort, Michael, The Columbia Guide to the Cold War, Columbia University Press, 2001, ISBN 9780231107730.
    Walker, Martin, The Cold War: a History, Macmillan, 1995, ISBN 9780805034547.
  78. ^ "Communists in Government Service, McCarthy Says". United States Senate History Website. Retrieved March 9, 2007.
  79. ^ Sabin, p 56.
    See also Fast, Howard, "The Big Finger", Masses & Mainstream, March, 1950, pp 62–68.
  80. ^ Sabin, p 56 (200,000 figure).
    Navasky, p 26 (32,000 figure).
  81. ^ Heale, M. J., American Anticommunism: Combating the Enemy Within, 1830-1970, JHU Press, 1990, p 162, ISBN 9780801840517. Hoover quoted by Heale.
    Sabin, p 56.
  82. ^ Sabin, p 60.
  83. ^ Belknap (2005), pp 258–259.
  84. ^ a b c Belknap (1994), p 222.
  85. ^ Belknap (2005), pp 258–259.
  86. ^ O'Brien, pp 7–8.
    Belknap (1994), p 222.
    Walker, p 187.
    Belknap, Michal, The Vinson Court: Justices, Rulings, and Legacy, ABC-CLIO, 2004, p 109, ISBN 9781576072011.
    Kemper, Mark, "Freedom of Speech", in Encyclopedia of American Civil Liberties, Volume 1, (Finkelman, Paul, Ed.), CRC Press, 2006, p 655, ISBN 9780415943420.
  87. ^ United States v. Dennis et al (183 F.2d 201)
  88. ^ Belknap (2005), pp 258–259.
  89. ^ Belknap (1994), p 223. Vinson quoted by Belknap.
  90. ^ a b c d O'Brien, pp 7–8; "Bitterly divided" are O'Brien's words"
  91. ^ a b Dennis v. United States - 341 U.S. 494 (1951).
  92. ^ Dennis v. United States, 341 U.S. 494 (1951). (Black, J., dissenting). Retrieved 31 January 2012.
    Sabin, p 84. Black quoted by Sabin.
    Morgan, pp 317–318.
  93. ^ Associated Press, "Contempt Sentences Upheld For Six Who Defended 11 Communist Leaders", The Toledo Blade, March 11, 1952. Douglas quoted in article.
    Full text of Douglas' opinion is at: Sacher v. United States - 343 U.S. 1 (1952) Dissenting opinion. Retrieved 30 January 2012.
  94. ^ Rule 42(a), Fed.Rules Crim.Proc., 18 U.S.C.A.
  95. ^ a b c Sacher v. United States 343 U.S. 1 (1952). Retrieved March 20, 2012.
  96. ^ From Sacher's majority opinion: "We are urged that these sentences will have an intimidating effect on the legal profession, whose members hereafter will decline to appear in trials where 'defendants are objects of hostility of those in power,' or will do so under a 'cloud of fear' which "threatens the right of the American people to be represented fearlessly and vigorously by counsel'."
  97. ^ The appeals case was United States v. Sacher, 2 Cir., 182 F.2d 416.
  98. ^ The initial appeal was 341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1374.
  99. ^ Belknap (1994), pp 224–225.
  100. ^ Sacher v. United States. Retrieved March 20, 2012.
  101. ^ Sabin p 59 (the 132 were in addition to the twelve from 1949). Belknap (1994) p 226 (126 of the 132 were conspiracy charges, 6 or 7 were membership clause charges).
  102. ^ a b c d e Belknap (1994), p 225–226.
  103. ^ Edson, Peter, "New Anti-Red Laws Requested", Lawrence Journal-World, July 15, 1954, p 4.
    Navasky, p 33.
    Belknap (1994) p 225.
  104. ^ Starobin, p 208.
  105. ^ Oshinsky, David M., A Conspiracy So Immense: the World of Joe McCarthy, Oxford University Press, 2005, p 149, ISBN 9780029234907 (discusses Budenze's income, which includes revenue from lectures and books, as well as compensation from the government for testifying).
    Navasky, pp 33, 38.
    Sabin, pp 62–63.
  106. ^ Sabin, pp 47–48.
  107. ^ Sabin, p 48.
    Auerbach , p 245–248.
    Rabinowitz, Victor, A History of the National Lawyers Guild: 1937–1987, National Lawyers Guild Foundation, 1987, p 28.
  108. ^ Auerbach, p 248.
  109. ^ Auerbach, p 249.
  110. ^ Navasky, p 37.
  111. ^ Brown, Sarah Hart, Standing Against Dragons: Three Southern Lawyers in an Era of Fear, LSU Press, 2000, pp 21–22, ISBN 9780807125755.
    Navasky, p 37.
  112. ^ Sabin, p 49.
  113. ^ Walker, p 212.
  114. ^ Belknap (2001), p 869 (term "Red Monday").
    Sabin, p 10.
    Parker, Richard A. (2003). "Brandenburg v. Ohio". In Parker, Richard A. (ed.) (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. University of Alabama Press. pp. 145–159. ISBN 081731301X. {{cite book}}: |editor= has generic name (help)
  115. ^ Yates v. United States - 354 U.S. 298 (1957)
  116. ^ Justice Black's concurring opinion stated: "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." - Black quoted by Mason, Alpheus Thomas, The Supreme Court from Taft to Burger, LSU Press, 1979, pp 37, 162, ISBN 9780807104699. Original decision: Yates v. United States, 354 U.S. 298 (1957). Retrieved February 12, 2012.
  117. ^ a b Belknap, Michal, "Communism and Cold War", in Oxford Companion to the Supreme Court, 2005, pp 199.
  118. ^ a b Noto v. United States 367 U.S. 290 (1961).
    The preceding federal appeals case, which upheld the conviction, was United States v. John Francis Noto, 262 F.2d 501 (2d Cir. 1958)
  119. ^ a b Konvitz, Milton, "Noto v. United States", in The Oxford companion to the Supreme Court of the United States, Oxford University Press, 2005, p 697, ISBN 9780195176612.
  120. ^ Noto v. United States - 367 U.S. 290 (1961)
  121. ^ Scales was initially convicted in 1955, but the sentence was overturned on appeal due to procedural mistakes by the prosecution; and he was retried in 1958. The 1957 reversal is Scales v. U. S., 355 U.S. 1, 78 S.Ct. 9, 2 L.Ed.2d 19 Retrieved March 20, 2012.
  122. ^ a b Scales v. United States, Oyez. Retrieved March 20, 2012.
  123. ^ The federal appeals case preceding the Supreme Court appeal was 260 F.2d 21 (1958).
  124. ^ Willis, Clyde, Student's Guide to Landmark Congressional Laws on the First Amendment, Greenwood, 2002, p 47, ISBN 9780313314162.
  125. ^ Goldman, Ari, "Junius Scales, Communist Sent to Prison, Dies at 82,", New York Times, August 7, 2002. Retrieved April 23, 2011.
    See also "Clemency for Scales", New York Times, December 28, 1962. Retrieved April 23, 2011. (subscription required).
    See also Sabin, p 60.
  126. ^ Walker, pp 240–242.
  127. ^ Belknap (1994), p 225–226.
    Sabin, p 60.
    Not all indictments led to convictions: ten were acquitted, one died, three did not go to trial due to ill health, and one had a hung jury (Belknap (1994) p 225).
  128. ^ Wolf, Adam B., "Anti-Anarchy and Anti-Syndicalism Statutes", Encyclopedia of American civil liberties, Volume 1, Paul Finkelman (Ed.), CRC Press, p 68, ISBN 9780415943420.
  129. ^ Powers, p 216.
  130. ^ Belknap (1994), p 226.
  131. ^ Martelle, p 255.
  132. ^ Gentry, Kurt, J. Edgar Hoover: The Man and the Secrets, W. W. Norton & Company, 1991, p 442, ISBN 0393024040.
  133. ^ Martelle, p 255. Gates quoted by Martelle.
    Mike Wallace interview of John Gates, January 18, 1958. University of Texas at Austin.
  134. ^ Buhle, Mari Jo, The American Radical, Psychology Press, 1994, p 202, ISBN 9780415908047.
  135. ^ Schrecker, Ellen, The Age of McCarthyism: a Brief History with Documents, Palgrave Macmillan, 2002, p 203, ISBN 9780312294250.

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, 2004, ISBN 9780812973020
  • Oakes, James L., "Memorial to Harold R. Medina", Columbia Law Review, Vol. 90, No. 6 (Oct., 1990), pp. 1459-1462.
  • O'Brien, David M., Congress Shall Make No Law: the First Amendment, Unprotected Expression, and the Supreme Court, Rowman & Littlefield, 2010, ISBN 9781442205109
  • Navasky, Victor S., Naming Names, Macmillan, 2003, ISBN 9780809001835
  • Powers, Richard Gid, Broken: the Troubled Past and Uncertain Future of the FBI, Simon and Schuster, 2004, ISBN 9780684833712
  • 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

  • Bell, Jonathan, The Liberal State On Trial: The Cold War And American Politics In The Truman Years, Columbia University Press, 2004, ISBN 9780231133562
  • 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
  • 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

Contemporary legal analyses

  • Boudin, Louis B. "'Seditious Doctrines' and the 'Clear and Present Danger' Rule: Part II", Virginia Law Review, Vol. 38, No. 3 (April, 1952), pp 315–356
  • Nathanson, Nathaniel, "The Communist trial and the clear-and-present-danger test", Harvard Law Review Vol. 63, No. 7 (May, 1950), pp 1167–1175
  • Wormuth, Francis D., "Learned Legerdemain: A Grave but Implausible Hand", The Western Political Quarterly, Vol. 6, No. 3 (September, 1953), pp 543–558

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
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