Smith Act trials of Communist Party leaders

This article is about trials that involved the CPUSA. For other trials, see Smith Act trial.

Smith Act trials of Communist Party leaders
Defendants Robert Thompson and Benjamin J. Davis surrounded by supporters during the 1949 trial
When	1949–1958
Defendants	144 leaders of the Communist Party USA
Allegation	Violating the Smith Act by conspiring to violently overthrow the government
Where	Federal courthouses in New York, Los Angeles, Honolulu, Pittsburgh, Philadelphia, Cleveland, Seattle, Baltimore, Seattle, Detroit, St. Louis, Denver, Boston, Puerto Rico, and New Haven.
Outcome	Over 100 convictions, with sentences up to six years in prison and a $10,000 fine, each

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, a 1940 statute that set penalties for advocating the violent overthrow of the government. The prosecution argued that the CPUSA's policies promoted violent revolution; the defendants countered that they advocated 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 US Supreme Court decisions Dennis v. United States (1951) and Yates v. United States (1957).

The first trial, in 1949, was one of the lengthiest and most contentious trials in American history. The hearing was featured on the cover of Time magazine twice, and large numbers of supporters of the communist defendants protested outside the courthouse daily. During the trial, the defense frequently antagonized the judge and prosecution, and five of the defendants were sent to jail for contempt of court for disrupting the proceedings. 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 Soviet Union tested its first atomic bomb, and communists prevailed in the Chinese Civil War. Public opinion was overwhelmingly against the defendants. After a ten-month trial the jury found all eleven defendants guilty and the judge sentenced them 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. 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

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

Main article: History of the Communist Party USA

After the 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. In the late 1930s, state and federal legislatures passed 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.

In response to the growing influence of communism, particularly the signing of the Molotov–Ribbentrop Pact between the Soviet Union and Nazi Germany, the US Congress passed the Smith Act in 1940. The statute set criminal penalties for advocating the overthrow of the government, and required all non-citizen adult residents to register with the government. Five million aliens were fingerprinted and registered following passage of the Act. The first persons convicted under the Smith Act were members of the Socialist Workers Party (SWP) in Minneapolis in 1941. Leaders of the CPUSA, bitter rivals of the Trotskyist SWP, supported the Smith Act prosecution of the SWP – a decision they would later regret. In 1943 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 Soviet Union, then an ally, the government did not prosecute any communists under the law during World War II.

The CPUSA's membership peaked at around 80,000 members during World War II under the leadership of Earl Browder who was not a strict Stalinist and cooperated with the US government during the war. In late 1945, hardliner William Z. Foster took over leadership of the CPUSA, and steered it on a course of strict adherence to Stalin's policies. The CPUSA was not very influential in American politics, and by 1948 its membership had declined to 60,000 members. Truman did not feel that the CPUSA was a threat (he dismissed it a "non problem") yet he made the specter of communism a campaign issue during the 1948 election.

The perception of communism in the US was shaped by the Cold War, which began after World War II when the Soviet Union failed to uphold the commitments it made at the Yalta Conference. Instead of holding elections for new governments, as agreed at Yalta, the Soviet Union occupied several Eastern European countries, leading to a strained relationship between the US and Soviet Union. Subsequent international events served to increase the apparent danger that communism posed to Americans: The Stalinist threats in Greek Civil War (1946–1949); the Czechoslovak coup d'état of 1948; the 1948 blockade of Berlin; and revelations of instances of Soviet espionage in the US during the 1930s and 1940s. The growing influence of communism around the world motivated the Department of Justice – spearheaded by the Federal Bureau of Investigation (FBI) – to initiate an investigation of communists within the United States.

1949 trial

J. Edgar Hoover initiated the case.

In July 1945, FBI director J. Edgar Hoover instructed his agents to begin gathering information on CPUSA members to support an analysis of 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. The same year, Hoover instructed the Department of Justice to bring 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, 1948, asserted that the CPUSA had been in violation of the Smith Act since July 1945, when Foster had taken over leadership from Browder. The twelve defendants, arrested in late July, were all members of the National Board of the CPUSA:

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 – CPUSA General Secretary
• William Z. Foster – CPUSA 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 CPUSA National Board
• Irving Potash - Furriers Union official
• Jack Stachel - Editor of the Daily Worker
• Robert G. Thompson – Lead of the New York branch of CPUSA
• John Williamson – Member of the CPUSA Central Committee
• Henry Winston – Member of the CPUSA National Board
• Carl Winter – Lead of the Michigan branch of CPUSA

Hoover 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. 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."

Start of the trial

The 1949 trial was held in the Foley Square federal courthouse in Manhattan.

The 1949 trial was held in the United States District Court for the Southern District of New York, and was presided over by Judge Harold Medina, a former Columbia University professor who had been on the bench for 18 months when the hearing began. 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. 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 case 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". Four hundred police officers were assigned to the site on the opening day of the hearing. Magazines, newspapers, and radio reported on the case heavily; Time magazine featured the trial twice with cover stories titled "Communists: The Presence of Evil" and "Communists: The Little Commissar" (referring to Eugene Dennis).

Before the trial began, supporters of the defendants decided on a campaign of letter-writing and demonstrations: the Daily Worker urged CPUSA members to bombard Truman with letters requesting that the charges be dropped. Later, supporters similarly flooded Judge Medina with telegrams and letters urging him to dismiss the charges. During the proceedings, 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". In response, the US House of Representatives passed a bill that would outlaw protests near federal courthouses; but the Senate never voted on the law.

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. 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; when a jury was finally selected, it contained four African Americans, and consisted primarily of working-class citizens.

Events outside the courtroom

Paul Robeson performed in a concert to raise funds for the legal expenses of the defendants. A defendant was attacked by vigilantes at the concert.

During the ten-month trial, several events occurred in America that intensified the nation's anti-communism sentiment: 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 also held at the Foley Square courthouse); labor leader Harry Bridges was accused of perjury when he denied being a communist; and the American Civil Liberties Union (ACLU) passed an anti-communist resolution. Two events during the final month of the trial may have been particularly influential: On September 23, 1949, Truman announced that the Soviet Union detonated its first atomic bomb; and on October 1, 1949, the Chinese Communist Party prevailed in the Chinese Civil War.

Two defendants, Irving Potash and Benjamin J. Davis, were victims of 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 those of the 1949 trial. Paul Robeson volunteered to headline a benefit concert for the CRC on August 27, but it was disrupted by vigilantes who attacked the concert organizers. Potash and 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 people, including Potash, whose eyes were struck by glass from a broken windshield. The police refrained from stopping the assault. The trial was suspended for two days while Potash recovered from his injuries.

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 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. The prosecution witnesses testified about the goals and policies of the CPUSA, and they interpreted the statements of pamphlets and books (including 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 guilty of advocating violent overthrow of the government.

Prosecution witness Calomiris was recruited by the FBI in 1942, and infiltrated the CPUSA, gaining access to a membership roster. During the seven years she 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.

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

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 supported the defendants' rights to espouse socialist viewpoints. 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, 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 for proletarian defendants; and third, they used 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, after which 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 texts that the prosecution had introduced which emphasized violence. However, Medina excluded most of the material proposed by the defense 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 developed 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 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. Despite the aggressive defense tactics and a voluminous letter-writing campaign directed at Medina, he stated "I will not be intimidated". 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 they deliberately were attempting to disrupt 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.

Fellow judge James L. Oakes described Medina as a fair and reasonable judge, and wrote that "after the judge saw what the lawyers were doing, he gave them a little bit of their own medicine, too." 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 before the trial: "If we let them do that sort of thing [postpone the trial start], they'll destroy the government". Medina's attitude towards the defense may have been exacerbated by the fact that another federal judge had died of a heart attack during the 1943 trial involving the Smith Act. 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.

The opinion of the American public and the news media was overwhelming in favor of conviction. 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 "not so much the protection and security of the state as the exploitation of justice for the purpose of propaganda."

Convictions and sentencing

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". The judge's instructions 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 to jail terms ranging from 30 days to six months; Dennis, acting as his own attorney, also was cited. 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.

The vast majority of the public, and most news media, endorsed the verdict. Seven days after the convictions, President Truman promoted prosecutor John McGohey to a job as a federal judge. Judge Medina was hailed as a national hero and received 50,000 letters congratulating him on the trial outcome. Ten days after the trial, Time magazine featured Medina on its cover, and soon thereafter he was asked to consider running for governor of New York. In 1951 he was promoted to the federal appeals court.

Out on bail

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

After sentencing, the defendants posted bail, enabling them to remain free during the appeal process. 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. While out on bail, Hall was appointed to a position in the secretariat within the CPUSA. Eugene Dennis was – in addition to his Smith Act charges – 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.

Prison

While waiting for their legal appeals to be heard, the CPUSA leaders became convinced that the government would undertake the prosecution of many additional Party officers. To ensure continuity of their leadership, they decided that four of the defendants should go into hiding and lead the CPUSA from outside prison. The defendants were ordered to report to prison on July 2, 1951, after the Supreme Court upheld their convictions and their legal appeals were exhausted. 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 Soviet Union. 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. Some of 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.

Legal appeals of 1949 trial

Perception of communism in the United States

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. 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. 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 Soviet Union. In 1952 the US exploded its first hydrogen bomb, and the Soviet Union followed suit in 1953.

Domestically, the Cold War was 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. 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.

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. The FBI had 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. 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."

Other federal government agencies also worked to undermine organizations, such as the CPUSA, they considered subversive: The Internal Revenue Service investigated 81 organizations that were deemed 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.

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. 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. On August 1, 1950, 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. The opinion specifically mentioned the contemporary dangers of communism worldwide, with emphasis on the Berlin Airlift. 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."

Courts had previously considered a "clear and present danger" test (first articulated in 1919's Schenck v. United States) to determine if speech could be prohibited. 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.

Dennis v. United States

Main article: Dennis v. United States

Chief Justice Fred M. Vinson authored the majority opinion in Dennis v. United States.

The defendants appealed the Second Circuit's 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. 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. The 6–2 decision was issued on June 4, 1951 and upheld Hand's decision. In his majority opinion, Chief Justice Fred Vinson considered the 1927 Whitney v. California case which addressed restrictions on speech and included the concepts of immanency and incitement. Vinson's opinion 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. 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."

Vinson's opinion also addressed the contention that Medina's jury instructions were faulty. The defendants claimed that 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.

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. 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."

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, in his dissenting opinion in Sacher v. United States

The defense attorneys appealed their own contempt sentences, which were handed out by Judge Medina under Rule 42 of the Federal Rules of Criminal Procedure. 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 argued that the contempt charges would prevent future CPUSA defendants from obtaining counsel, because attorneys would be afraid of judicial retaliation. 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. The attorneys then appealed to the Supreme Court which denied the initial petition, but later reconsidered and accepted the appeal. 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?". The Supreme Court, in an opinion written by Justice Robert Jackson, upheld the contempt sentences by a 5–3 vote. 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."

Trials of "second-tier" officials

Dorothy Healey, leader of the California branch of the CPUSA, 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. When the 1951 Dennis decision upholding the convictions was announced, prosecutors initiated indictments of 132 additional CPUSA leaders, called "second string" or "second-tier" defendants. The second-tier defendants were prosecuted in three waves: 1951, 1954, and 1956. The second-tier trials were held in over a dozen cities, including Los Angeles (15 CPUSA defendants, including Dorothy Healey, leader of the California branch of the CPUSA), New York (21 defendants, including National Committee members Claudia Jones and Elizabeth Gurley Flynn), Honolulu, Pittsburgh, Philadelphia, Cleveland, Seattle, Baltimore, Seattle, Detroit, St. Louis, Denver, Boston, Puerto Rico, and New Haven.

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, 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 counsel 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.

Some 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 had 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 Dashiell Hammett, a manager of the CRC fund, invoked the Fifth Amendment, refused to identify donors, and was sentenced to six months in prison.

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.

The federal appeals courts upheld all convictions of second-tier officials, and the Supreme Court refused to hear their appeals until 1956 when it agreed to hear the appeal of the California defendants, leading to the landmark Yates v. United States decision.

Yates v. United States

Main article: Yates v. United States

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. 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. 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. 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. 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."

The Supreme Court did not rule the Smith Act unconstitutional, but its decision limited the application of the Act to a degree that rendered it nearly unenforceable. 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.

Noto v. United States

Main article: Noto v. United States

Four years after the Yates decision, the Supreme Court case reversed the conviction of another second-tier CPUSA leader, John Francis Noto of New York, in the 1961 Noto v. United States case. Noto was convicted under the membership clause of the Smith Act, and he challenged the constitutionality of that clause on appeal. By a unanimous vote, the court reversed the conviction 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. 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."

The decision did not rule the membership clause unconstitutional. In their concurring opinions, Justices Black and Douglas 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."

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 one convicted after the Yates decision. Prosecutors pursued Scales' case because he specifically advocated violent political action and gave demonstrations of martial arts skills. Scales was the only defendant convicted under the membership clause (all others were convicted of conspiring to overthrow the government). In his appeal to the Supreme Court, Scales contended that the 1950 McCarran Internal Security Act rendered the Smith Act's membership clause ineffective, because the McCarran Act explicitly stated that membership in a communist party does not constitute a per se violation of any criminal statute. 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. Two Justices of the Supreme Court who had approved the Yates decision in 1957, Harlan and Frankfurter, reversed course and voted to uphold the conviction.

Scales' sentence was commuted by President Kennedy on Christmas Eve, 1962, making Scales the final Smith Act defendant released from prison. The Scales decision is the only case in which the Supreme Court upheld a conviction based solely upon membership in a political party.

Aftermath

The Yates and Noto decisions undermined the Smith Act and marked the beginning of the end of CPUSA membership inquiries. 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. Less than half the convicted communists served jail time. The Smith Act, 18 U.S.C. § 2385, remains on the statute books.

Defendant Gus Hall ran for president four times after being released from prison.

The Smith Act trials decimated the leadership ranks of the CPUSA. 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. 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, and 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 whom over 1,000 may have been FBI informants.

The defendants of the 1949 trial were released from prison in the mid 1950s. Gus Hall went on to serve as a Party leader for another 40 years; he supported the policies of the Soviet Union, and ran for president four times from 1972 to 1984, twice with Angela Davis as his running mate. 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 Soviet Union for the CPUSA's downfall. 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 Soviet Union. After prison, Carl Winter resumed Party activities, became editor of the Daily Worker and died in 1991. Gil Green was released from Leavenworth prison in 1961, and continued working with the CPUSA to oppose the Vietnam War. 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. Defense attorney George W. Crockett, Jr. later became a congressman for the state of Michigan.

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
• Finkelman, Paul (Editor), Encyclopedia of American Civil Liberties (two volumes), CRC Press, 2006, ISBN 9780415943420
• Konvitz, Milton R., "Noto v. United States" and "Scales v. United States" in The Oxford Companion to the Supreme Court of the United States, Hall, Kermit; Ely, James; (Eds.), Oxford University Press, 2005, ISBN 9780195176612
• Levin, Daniel, "Smith Act", in Finkelman, Vol 1, p 1488.
• 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
• Birdnow, Brian, E., Communism, Anti-communism, And the Federal Courts in Missouri, 1952–1958: The Trial of the St. Louis Five, E. Mellen Press, 2005, ISBN 9780773461017
• 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, and Nickson, Richard, 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

Documentaries

• Strange, Eric; Dugan, David, Love in the Cold War, 1991, American Experience (PBS) and Windfall Films. A documentary film about Eugene Dennis and his wife, Peggy Dennis, during the McCarthyism era.