The Smith Act trials of Communist Party leaders in New York City from 1949 to 1958 were the result of
US federal government
The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a fed ...
prosecutions in the postwar period and during the
Cold War between the
Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, ...
and the United States. Leaders of the
Communist Party of the United States
The Communist Party USA, officially the Communist Party of the United States of America (CPUSA), is a communist party in the United States which was established in 1919 after a split in the Socialist Party of America following the Russian Revo ...
(CPUSA) were accused of violating the
Smith Act
The Alien Registration Act, popularly known as the Smith Act, 76th United States Congress, 3d session, ch. 439, , is a United States federal statute that was enacted on June 28, 1940. It set criminal penalties for advocating the overthrow of th ...
, a statute that prohibited advocating violent overthrow of the government. The defendants argued that they advocated a peaceful transition to socialism, and that the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
's guarantee of
freedom of speech and of
association
Association may refer to:
*Club (organization), an association of two or more people united by a common interest or goal
*Trade association, an organization founded and funded by businesses that operate in a specific industry
*Voluntary associatio ...
protected their membership in a political party. Appeals from these trials reached the
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
, which ruled on issues in ''
Dennis v. United States
''Dennis v. United States'', 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the ...
'' (1951) and ''
Yates v. United States
''Yates v. United States'', 354 U.S. 298 (1957), was a case decided by the Supreme Court of the United States that held that the First Amendment protected radical and reactionary speech, unless it posed a " clear and present danger."
Background
...
'' (1957).
The first trial of eleven communist leaders was held in New York in 1949; it was one of the lengthiest trials in United States history. Numerous supporters of the defendants protested outside the courthouse on a daily basis. The trial was featured twice on the cover of ''
Time
Time is the continued sequence of existence and events that occurs in an apparently irreversible succession from the past, through the present, into the future. It is a component quantity of various measurements used to sequence events, ...
'' magazine. The defense frequently antagonized the judge and prosecution; five defendants were jailed for
contempt of court because they disrupted the proceedings. The prosecution's case relied on undercover informants, who described the goals of the CPUSA, interpreted communist texts, and testified of their own knowledge that the CPUSA advocated the violent overthrow of the US government.
While the first trial was under way, events outside the courtroom influenced public perception of communism: the
Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, ...
tested its first
nuclear weapon
A nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission (fission bomb) or a combination of fission and fusion reactions ( thermonuclear bomb), producing a nuclear explosion. Both bom ...
, and communists prevailed in the
Chinese Civil War
The Chinese Civil War was fought between the Kuomintang-led government of the Republic of China and forces of the Chinese Communist Party, continuing intermittently since 1 August 1927 until 7 December 1949 with a Communist victory on m ...
. In this period, the
House Un-American Activities Committee (HUAC) had also begun conducting investigations and hearings of writers and producers in Hollywood suspected of communist influence. Public opinion was overwhelmingly against the defendants in New York. After a 10-month trial, the jury found all 11 defendants guilty. The judge sentenced them to terms of up to five years in federal prison, and sentenced all five defense attorneys to imprisonment for contempt of court. Two of the attorneys were subsequently
disbarred.
After the first trial, the prosecutorsencouraged by their success prosecuted more than 100 additional CPUSA officers for violating the
Smith Act
The Alien Registration Act, popularly known as the Smith Act, 76th United States Congress, 3d session, ch. 439, , is a United States federal statute that was enacted on June 28, 1940. It set criminal penalties for advocating the overthrow of th ...
. 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 brought an end to similar prosecutions. It ruled that defendants could be prosecuted only for their actions, not for their beliefs.
Background
![Step by step greene](https://upload.wikimedia.org/wikipedia/commons/3/34/Step_by_step_greene.jpg)
After the
revolution
In political science, a revolution (Latin: ''revolutio'', "a turn around") is a fundamental and relatively sudden change in political power and political organization which occurs when the population revolts against the government, typically due ...
in Russia in 1917, the communist movement gradually gained footholds in many countries around the world. In Europe and the US, communist parties were formed, generally allied with trade union and labor causes. During the
First Red Scare
The First Red Scare was a period during the early 20th-century history of the United States marked by a widespread fear of far-left movements, including Bolshevism and anarchism, due to real and imagined events; real events included the R ...
of 1919–1920, many U.S. capitalists were fearful that
Bolshevism
Bolshevism (from Bolshevik) is a revolutionary socialist current of Soviet Marxist–Leninist political thought and political regime associated with the formation of a rigidly centralized, cohesive and disciplined party of social revolution, ...
and
anarchism would lead to disruption 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
The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
(ACLU), a free-speech advocacy organization, passed a resolution in 1939 expelling communists from its leadership ranks.
Following Congressional investigation of left-wing and right-wing extremist political groups in the mid-1930s, support grew for a statutory prohibition of their activities. The alliance of
Nazi Germany
Nazi Germany (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") (officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945) was ...
and the
Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, ...
in the August 1939
Molotov–Ribbentrop Pact
The Molotov–Ribbentrop Pact was a non-aggression pact between Nazi Germany and the Soviet Union that enabled those powers to partition Poland between them. The pact was signed in Moscow on 23 August 1939 by German Foreign Minister Joachim von Ri ...
and their invasion of Poland in September gave the movement added impetus. In 1940 the
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
passed the Alien Registration Act of 1940 (known as the
Smith Act
The Alien Registration Act, popularly known as the Smith Act, 76th United States Congress, 3d session, ch. 439, , is a United States federal statute that was enacted on June 28, 1940. It set criminal penalties for advocating the overthrow of th ...
) which required all non-citizen adult residents to register with the government, and made it a crime "to knowingly or willfully advocate ... the duty, necessity, desirability, ... of overthrowing or destroying any government in the United States by force or violence ... with the intent to cause the overthrow or destruction of any government in the United States...."
[Levin, p 1488]
available online
accessed June 13, 2012[The Smith Act was officially called the Alien Registration Act of 1940]
The Act has been amended since then
Text of 2012 version
The portion of the 1940 Act that was relevant to the CPUSA trials was: "Sec. 2. (a) It shall be unlawful for any person—
(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government;
(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence.
(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof...." Five million non-citizens 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
Minneapolis () is the largest city in Minnesota, United States, and the county seat of Hennepin County. The city is abundant in water, with thirteen lakes, wetlands, the Mississippi River, creeks and waterfalls. Minneapolis has its origins ...
in 1941. Leaders of the CPUSA, bitter rivals of the
Trotskyist
Trotskyism is the political ideology and branch of Marxism developed by Ukrainian-Russian revolutionary Leon Trotsky and some other members of the Left Opposition and Fourth International. Trotsky self-identified as an orthodox Marxist, a ...
SWP, supported the Smith Act prosecution of the SWPa decision they would later regret. In 1943, the government used the Smith Act
to prosecute American Nazis; that case ended in a
mistrial
In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, ...
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 .
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,
hardline
In politics, hardline (or hard-line) is an adjective describing a stance on an issue that is inflexible and not subject to compromise. A hardliner is a person holding such views. The stance is usually far from the centrist view. People, policies, ...
r
William Z. Foster took over leadership of the CPUSA, and steered it on a course adhering 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 as 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
The Yalta Conference (codenamed Argonaut), also known as the Crimea Conference, held 4–11 February 1945, was the World War II meeting of the heads of government of the United States, the United Kingdom, and the Soviet Union to discuss the post ...
. Instead of holding elections for new governments, as agreed at Yalta, the Soviet Union occupied several
Eastern European countries, leading to a strained relationship with the US. Subsequent international events served to increase the apparent danger that communism posed to Americans: the Stalinist threats in the
Greek Civil War
The Greek Civil War ( el, ο Eμφύλιος όλεμος}, ''o Emfýlios'' 'Pólemos'' "the Civil War") took place from 1946 to 1949. It was mainly fought against the established Kingdom of Greece, which was supported by the United Kingdom and ...
(1946–1949); the
Czechoslovak coup d'état of 1948
Czechoslovak may refer to:
*A demonym or adjective pertaining to Czechoslovakia (1918–93)
**First Czechoslovak Republic (1918–38)
** Second Czechoslovak Republic (1938–39)
**Third Czechoslovak Republic (1948–60)
**Fourth Czechoslovak Repu ...
; and the 1948
blockade of Berlin.
[Belknap (1994), p 210.]
The view of communism was also affected by evidence of espionage in the US conducted by agents of the USSR. In 1945, a Soviet spy,
Elizabeth Bentley, repudiated the USSR and provided a list of Soviet spies in the US to the
Federal Bureau of Investigation
The Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principal federal law enforcement agency. Operating under the jurisdiction of the United States Department of Justice, ...
(FBI). The FBI also had access to secret Soviet communications, available from the
Venona decryption effort, which revealed significant efforts by Soviet agents to conduct espionage within the US.
The growing influence of communism around the world and the evidence of Soviet spies within the US motivated the Department of Justicespearheaded by the FBIto initiate an investigation of communists within the US.
[Belknap (1994), p 209.]
1949 trial
![Hoover-JEdgar-LOC](https://upload.wikimedia.org/wikipedia/commons/b/b0/Hoover-JEdgar-LOC.jpg)
In July 1945, FBI director
J. Edgar Hoover
John Edgar Hoover (January 1, 1895 – May 2, 1972) was an American law enforcement administrator who served as the first Director of the Federal Bureau of Investigation (FBI). He was appointed director of the Bureau of Investigation ...
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
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
held a hearing at which the
Hollywood Ten
The Hollywood blacklist was an entertainment industry blacklist, broader than just Hollywood, put in effect in the mid-20th century in the United States during the early years of the Cold War. The blacklist involved the practice of denying empl ...
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
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
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
An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that of a ...
, issued on June 29, 1948, asserted that the CPUSA had been in violation of the Smith Act since July 1945.
[Belknap (1994), p 211.] The twelve defendants, arrested in late July 1948, were all members of the National Board of the CPUSA:
*
Benjamin J. Davis, Jr. – Chairman of the CPUSA's Legislative Committee and Council-member of New York City
*
Eugene Dennis
Francis Xavier Waldron (August 10, 1905 – January 31, 1961), best known by the pseudonym Eugene Dennis and Tim Ryan, was an American communist politician and union organizer, best remembered as the long-time leader of the Communist Party USA a ...
– CPUSA General Secretary
*
William Z. Foster – CPUSA National Secretary (indicted; but not tried due to illness)
*
John Gates
John "Johnny" Gates, born Solomon Regenstreif (28 September 1913 – 23 May 1992) was an American Communist business man, best remembered as one of the individuals spearheading a failed attempt at liberalization of the Communist Party USA in ...
– Leader of the
Young Communist League
The Young Communist League (YCL) is the name used by the youth wing of various Communist parties around the world. The name YCL of XXX (name of country) originates from the precedent established by the Communist Youth International.
Examples of Y ...
*
Gil Green – Member of the National Board (represented by
A.J. Isserman)
*
Gus Hall
Gus Hall (born Arvo Kustaa Halberg; October 8, 1910 – October 13, 2000) was the General Secretary of the Communist Party USA (CPUSA) and a perennial candidate for president of the United States. He was the Communist Party nominee in the ...
– Member of the CPUSA National Board
*
Irving Potash – Furriers Union official
*
Jack Stachel
Jacob Abraham "Jack" Stachel (19001965) was an American Communist functionary who was a top official in the Communist Party from the middle 1920s until his death in the middle 1960s. Stachel is best remembered as one of 11 Communist leaders conv ...
– Editor of the ''
Daily Worker
The ''Daily Worker'' was a newspaper published in New York City by the Communist Party USA, a formerly Comintern-affiliated organization. Publication began in 1924. While it generally reflected the prevailing views of the party, attempts were ...
''
*
Robert G. Thompson – Lead of the New York branch of CPUSA
*
John Williamson – Member of the CPUSA Central Committee (represented by
A.J. Isserman)
*
Henry Winston
Henry M. Winston (April 2, 1911December 13, 1986) was an African-American political leader and Marxist civil rights activist.
Winston, committed to equal rights and communism, was an advocate of civil rights for African Americans decades before ...
– 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 chose to pursue only twelve. A week before the arrests, Hoover complained to the Justice Departmentrecalling the
arrests
An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be quest ...
and
convictions of over one hundred leaders of the
Industrial Workers of the World
The Industrial Workers of the World (IWW), members of which are commonly termed "Wobblies", is an international labor union that was founded in Chicago in 1905. The origin of the nickname "Wobblies" is uncertain. IWW ideology combines general ...
(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
![WTM sheila 0036](https://upload.wikimedia.org/wikipedia/commons/5/5d/WTM_sheila_0036.jpg)
The 1949 trial was held in New York City at the
Foley Square federal courthouse of the
. Judge
Harold Medina
Harold Raymond Medina (February 16, 1888 – March 14, 1990) was a United States circuit judge of the United States Court of Appeals for the Second Circuit and previously was a United States district judge of the United States District Court for ...
, a former
Columbia University
Columbia University (also known as Columbia, and officially as Columbia University in the City of New York) is a private research university in New York City. Established in 1754 as King's College on the grounds of Trinity Church in Manhatt ...
professor who had been on the bench for 18 months when the hearing began, presided.
[Morgan, p 314. ]
Sabin, p 41. Before becoming a judge, Medina successfully argued the case of ''
Cramer v. United States'' before the Supreme Court, defending a German-American charged with treason.
The trial opened on November 1, 1948, and 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.
[Morgan, p 315.] 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".
[Walker, p 185. ]
Morgan, p 315.
Sabin, pp 44–45. "Circus-like" are Sabin's words. Four hundred police officers were assigned to the site on the opening day of the trial.
Magazines, newspapers, and radio reported on the case heavily;
''Time'' magazine featured the trial on its cover twice with stories titled "Communists: The Presence of Evil" and "Communists: The Little Commissar" (referring to Eugene Dennis).
["Communists: The Little Commissar"](_blank)
''Time'', April 25, 1949 (Cover photo: Eugene Dennis).
''Time'': October 24, 1949. (Cover photo: Harold Medina).
''Time'', (article, not cover), August 22, 1949.
''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.
Public opinion
The opinion of the American public and the news media was overwhelming in favor of conviction.
Magazines, newspapers, and radio reported on the case heavily; ''
Time
Time is the continued sequence of existence and events that occurs in an apparently irreversible succession from the past, through the present, into the future. It is a component quantity of various measurements used to sequence events, ...
'' magazine featured the trial on its cover twice with stories titled "Communists: The Presence of Evil" and "Communists: The Little Commissar" (referring to Eugene Dennis).
Most American newspapers supported the prosecution, such as the ''
New York World-Telegram
The ''New York World-Telegram'', later known as the ''New York World-Telegram and The Sun'', was a New York City newspaper from 1931 to 1966.
History
Founded by James Gordon Bennett Sr. as ''The Evening Telegram'' in 1867, the newspaper began ...
'' which reported that the Communist Party would soon be punished.
[Martelle, p 76. Martelle states that Shirer's statement was published in the ''New York Star''.] ''
The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid d ...
'', in an editorial, felt that the trial was warranted and denied assertions of the Party that the trial was a provocation comparable to the
Reichstag fire. ''
The Christian Science Monitor
''The Christian Science Monitor'' (''CSM''), commonly known as ''The Monitor'', is a nonprofit news organization that publishes daily articles in electronic format as well as a weekly print edition. It was founded in 1908 as a daily newspaper ...
'' took a more detached view in an editorial: "The outcome of the case will be watched by government and political parties around the world as to how the United States, as an outstanding exponent of democratic government, intends to share the benefits of its civil liberties and yet protect them if and when they appear to be abused by enemies from within".
Support for the prosecutions was not universal, however.
During the proceedings, there were days when several thousand picketers protested in
Foley Square
Foley Square, also called Federal Plaza, is a street intersection in the Civic Center neighborhood of Lower Manhattan, New York City, which contains a small triangular park named Thomas Paine Park. The space is bordered by Worth Street to th ...
outside the courthouse, chanting slogans like "Adolf Hitler never died / He's sitting at Medina's side".
In response, the
US House of Representatives
The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
passed a bill in August to outlaw picketing near federal courthouses, but the
Senate did not vote on it before the end of the trial.
[Walker, p 186.]
Journalist
William L. Shirer
William Lawrence Shirer (; February 23, 1904 – December 28, 1993) was an American journalist and war correspondent. He wrote ''The Rise and Fall of the Third Reich'', a history of Nazi Germany that has been read by many and cited in scholarly w ...
was skeptical of the trial, writing "no overt act of trying to forcibly overthrow our government is charged ... The government's case is simply that by being members and leaders of the Communist Party, its doctrines and tactics being what they are, the accused are guilty of conspiracy".
''
The Washington Post
''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large nati ...
'' 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."
Third-party
Third party may refer to:
Business
* Third-party source, a supplier company not owned by the buyer or seller
* Third-party beneficiary, a person who could sue on a contract, despite not being an active party
* Third-party insurance, such as a Ve ...
presidential candidate
Henry A. Wallace claimed that the trial was an effort by the Truman administration to create an atmosphere of fear, writing "we Americans have far more to fear from those actions which are intended to suppress political freedom than from the teaching of ideas with which we are in disagreement."
Farrell Dobbs
Farrell Dobbs (July 25, 1907 – October 31, 1983) was an American Trotskyist, trade unionist, politician, and historian.
Early years
Dobbs was born in Queen City, Missouri, where his father was a worker in a coal company garage. The family ...
of the SWP wrotedespite the fact that the CPUSA had supported Dobbs' prosecution under the Smith Act in 1941"I want to state in no uncertain terms that I as well as the Socialist Workers Party support their struggle against the obnoxious Smith Act, as well as against the indictments under that act".
Before the trial began, supporters of the defendants decided on a campaign of letter-writing and demonstrations: the CPUSA urged its members to bombard Truman with letters requesting that the charges be dropped.
[Belknap (1994), p 212.] Later, supporters similarly flooded Judge Medina with telegrams and letters urging him to dismiss the charges.
[Redish, p 82.]
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".
[Belknap (1994), p 208.]
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.
The prosecution called witnesses who were either undercover informants, such as
Angela Calomiris and
Herbert Philbrick
Herbert Arthur Philbrick (May 11, 1915 – August 16, 1993) was a Boston-area advertising executive who was encouraged by the FBI to infiltrate the Communist Party USA between 1940 and 1949. His autobiography was the basis for the 1950s television ...
, 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
''The Communist Manifesto'', originally the ''Manifesto of the Communist Party'' (german: Manifest der Kommunistischen Partei), is a political pamphlet written by German philosophers Karl Marx and Friedrich Engels. Commissioned by the Commu ...
'') and works by such authors as
Karl Marx
Karl Heinrich Marx (; 5 May 1818 – 14 March 1883) was a German philosopher, economist, historian, sociologist, political theorist, journalist, critic of political economy, and socialist revolutionary. His best-known titles are the 1848 ...
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.
Calomiris was recruited by the FBI in 1942 and infiltrated the CPUSA, gaining access to a membership roster.
[Mahoney, M.H., ''Women in Espionage: A Biographical Dictionary'', Santa Barbara, California: ABC-CLIO, 1993, pp 37–39.] She received a salary from the FBI during her seven years as an informant.
Calomiris identified four of the defendants as members of the CPUSA and provided information about its organization. She testified that the CPUSA espoused violent revolution against the government, and that the CPUSAacting on instructions from Moscowhad attempted to recruit members working in key war industries.
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 "
Aesopian language" which were put in place specifically to protect the CPUSA from prosecution.
Defense
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.
[Communist Trial Ends with 11 Guilty]
, ''Life'', October 24, 1949, p 31. 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; but it did submit an
''amicus'' brief endorsing a motion for dismissal of the charges.
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 attacked 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.
The defense made pre-trial
motions
In physics, motion is the phenomenon in which an object changes its position with respect to time. Motion is mathematically described in terms of displacement, distance, velocity, acceleration, speed and frame of reference to an observer and me ...
arguing that the defendants' right to trial by a jury of their 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.
[Belknap (1994), p 213. ]
Walker, p 185.
Starobin, p 206.
Medina's ruling on the jury selection issue i
83 F.Supp. 197 (1949)
The issue was addressed by the appeals court i
183 F.2d 201 (2d Cir. 1950)
The defense also argued that the jury selection process for the trial was similarly flawed.
[Belknap (1994), p 213.] Their objections to the jury selection process were not successful and jurors included four African Americans and consisted primarily of working-class citizens.
[Belknap (1994), p 214.]
A primary theme of the defense was that the CPUSA sought to convert the US to socialism by education, not by force.
[Belknap (1994), p 219.] 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.
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.
[Belknap (1994), p 220.]
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.
[Redish, pp 81–82.] The strategy involved verbally disparaging the judge and the prosecutors, and may have been an attempt to provoke a mistrial.
[Sabin, p 46. "Mutual hostility" is Sabin's characterization.] 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.
[Belknap (1994), p 218.] 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 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 trial.
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.
Judge Medina attempted to maintain order by removing disorderly defendants. 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
A kangaroo court is a court that ignores recognized standards of law or justice, carries little or no official standing in the territory within which it resides, and is typically convened ad hoc. A kangaroo court may ignore due process and come ...
", and Winstonan African Americanfor 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
James Lowell Oakes (February 21, 1924 – October 13, 2007) was a United States circuit judge of the United States Court of Appeals for the Second Circuit and previously was a United States district judge of the United States District Court for ...
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."
[Oakes, p 1460.] Legal scholar and historian 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
ostpone the trial start they'll destroy the government". According to Belknap, Medina's behavior 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.
[Belknap (2001), p 860.] Some historians speculate that 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.
Events outside the courtroom
![Paul Robeson 1942 crop](https://upload.wikimedia.org/wikipedia/commons/3/3b/Paul_Robeson_1942_crop.jpg)
During the ten-month trial, several events occurred in America that intensified the nation's
anti-communist sentiment: The
Judith Coplon
Judith Coplon Socolov (May 17, 1921 – February 26, 2011) was a spy for the Soviet Union whose trials, convictions, and successful constitutional appeals had a profound influence on espionage prosecutions during the Cold War.
In 1949, three majo ...
Soviet espionage case was in progress; former government employee
Alger Hiss was tried for
perjury
Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
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 ACLU passed an anti-communist resolution.
[Sabin, p 45.] 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 nuclear bomb; and on October 1, 1949, the
Communist Party of China
The Chinese Communist Party (CCP), officially the Communist Party of China (CPC), is the founding and sole ruling party of the People's Republic of China (PRC). Under the leadership of Mao Zedong, the CCP emerged victorious in the Chinese Civil ...
prevailed in the
Chinese Civil War
The Chinese Civil War was fought between the Kuomintang-led government of the Republic of China and forces of the Chinese Communist Party, continuing intermittently since 1 August 1927 until 7 December 1949 with a Communist victory on m ...
.
Defendants Irving Potash and Benjamin J. Davis were among the audience members attacked as they left a September 4 concert headlined by
Paul Robeson
Paul Leroy Robeson ( ; April 9, 1898 – January 23, 1976) was an American bass-baritone concert artist, stage and film actor, professional American football, football player, and activist who became famous both for his cultural accomplish ...
in
Peekskill, New York
Peekskill is a city in northwestern Westchester County, New York, United States, from New York City. Established as a village in 1816, it was incorporated as a city in 1940. It lies on a bay along the east side of the Hudson River, across from ...
. It was given to benefit the
Civil Rights Congress
The Civil Rights Congress (CRC) was a United States civil rights organization, formed in 1946 at a national conference for radicals and disbanded in 1956. It succeeded the International Labor Defense, the National Federation for Constitutional Li ...
(CRC), which was funding the defendants' legal expenses.
Hundreds lined the roads leaving the performance grounds and
threw rocks and bottles at the departing vehicles without interference by the police. Over 140 people suffered injuries, including Potash, whose eyes were struck by glass from a broken windshield. The trial was suspended for two days while Potash recovered from his injuries.
Convictions and sentencing
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".
This instruction was in response to the defendants, who endorsed the "
clear and present danger
''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to '' The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence in ...
" test, yet that test was not adopted as law by the Supreme Court.
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.
[Sabin, p 45. ]
Belknap (1994), p 221.
Redish, p 87.
One 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." After deliberating for seven and one-half hours, the jury returned guilty verdicts against all eleven defendants.
[Belknap (1994), p 221.] The judge sentenced ten defendants to five years and a $10,000 fine each ($ in dollars). The eleventh defendant,
Robert G. Thompsona veteran of World War IIwas 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 The Distinguished Service Cross (D.S.C.) is a military decoration for courage. Different versions exist for different countries.
*Distinguished Service Cross (Australia)
The Distinguished Service Cross (DSC) is a military decoration awarded to ...
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, was also cited.
Since the contempt sentences were based on behavior witnessed by the judge, no hearings were required for the contempt charges, and the attorneys were immediately handcuffed and led to jail.
[Sabin, p 47.]
Public reaction
The vast majority of the public, and most news media, endorsed the verdict.
Typical was a letter to the ''New York Times'': "The Communist Party may prove to be a hydra-headed monster unless we can discover how to kill the body as well as how to cut off its heads." The day of the convictions, New York Gov.
Thomas E. Dewey
Thomas Edmund Dewey (March 24, 1902 – March 16, 1971) was an American lawyer, prosecutor, and politician who served as the 47th governor of New York from 1943 to 1954. He was the Republican candidate for president in 1944 and 1948: although ...
and Senator
John Foster Dulles praised the verdicts.
Some vocal supporters of the defendants spoke out in their defense. A New York resident wrote: "I am not afraid of communism ... I am only afraid of the trend in our country today away from the principles of democracy." Another wrote: "the trial was a political trial ... Does not the Soviet Union inspire fear in the world at large precisely because masses of human beings have no confidence in the justice of its criminal procedures against dissidents? ... I trust that the Supreme Court will be able to correct a grave error in the operation of our political machinery by finding the ... Smith bill unconstitutional."
William Z. Foster wrote: "every democratic movement in the United States is menaced by this reactionary verdict ... The Communist Party will not be dismayed by this scandalous verdict, which belies our whole national democratic traditions. It will carry the fight to the higher courts, to the broad masses of the people."
Vito Marcantonio
Vito is an Italian name that is derived from the Latin word "''vita''", meaning "life".
It is a modern form of the Latin name Vitus, meaning "life-giver," as in San Vito or Saint Vitus, the patron saint of dogs and a heroic figure in southern I ...
of the
American Labor Party
The American Labor Party (ALP) was a political party in the United States established in 1936 that was active almost exclusively in the state of New York. The organization was founded by labor leaders and former members of the Socialist Party of A ...
wrote that the verdict was "a sharp and instant challenge to the freedom of every American."
The
ACLU issued a statement reiterating its opposition to the Smith Act, because it felt the act criminalized political advocacy.
Abroad, the trial received little mention in mainstream press, but Communist newspapers were unanimous in their condemnation.
The Moscow press wrote that Medina showed "extraordinary prejudice"; the London communist newspaper wrote that the defendants had been convicted only of "being communists"; and in France, a paper decried the convictions as "a step on the road that leads to war."
On October 21, President Truman appointed prosecutor John McGohey to serve as a US District Court judge. Judge Medina was hailed as a national hero and received 50,000 letters congratulating him on the trial outcome. On October 24,
''Time'' magazine featured Medina on its cover, and soon thereafter he was asked to consider running for governor of New York. On June 11, 1951, Truman nominated Medina to the
US Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
, where he served until 1980.
Bail and prison
After sentencing, the defendants posted
bail
Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.
In some countrie ...
, enabling them to remain free during the appeal process. The $260,000 bail ($ in dollars) was provided by
Civil Rights Congress
The Civil Rights Congress (CRC) was a United States civil rights organization, formed in 1946 at a national conference for radicals and disbanded in 1956. It succeeded the International Labor Defense, the National Federation for Constitutional Li ...
, 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 wasin addition to his Smith Act chargesfighting
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.
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.
[Belknap (1994), pp 224–225.] 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 $80,000 bail ($ in dollars).
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.
[Martelle, pp 256–257.]
Perception of communism after the trial
![Joseph McCarthy](https://upload.wikimedia.org/wikipedia/commons/f/fa/Joseph_McCarthy.jpg)
After the convictions, the Cold War continued in the international arena. In December 1950, Truman declared a
national emergency
A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state du ...
in response to the Korean War.
The
First Indochina War
The First Indochina War (generally known as the Indochina War in France, and as the Anti-French Resistance War in Vietnam) began in French Indochina from 19 December 1946 to 20 July 1954 between France and Việt Minh (Democratic Republic of Vi ...
continued in
Vietnam
Vietnam or Viet Nam ( vi, Việt Nam, ), officially the Socialist Republic of Vietnam,., group="n" is a country in Southeast Asia, at the eastern edge of mainland Southeast Asia, with an area of and population of 96 million, making i ...
, in which communist forces in the north fought against
French Union
The French Union () was a political entity created by the French Fourth Republic to replace the old French colonial empire system, colloquially known as the " French Empire" (). It was the formal end of the "indigenous" () status of French subj ...
forces in the south.
The US expanded the
Radio Free Europe
Radio Free Europe/Radio Liberty (RFE/RL) is a United States government funded organization that broadcasts and reports news, information, and analysis to countries in Eastern Europe, Central Asia, Caucasus, and the Middle East where it says tha ...
broadcasting system in an effort to promote Western political ideals in Eastern Europe.
In March 1951, American communists
Julius and Ethel Rosenberg
Julius Rosenberg (May 12, 1918 – June 19, 1953) and Ethel Rosenberg (; September 28, 1915 – June 19, 1953) were American citizens who were convicted of spying on behalf of the Soviet Union. The couple were convicted of providing top-secret i ...
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.
[Gregory, Ross, ''Cold War America, 1946 to 1990'', Infobase Publishing, 2003, pp 48–53, . ]
Kort, Michael, ''The Columbia Guide to the Cold War'', Columbia University Press, 2001, .
Walker, Martin, ''The Cold War: a History'', Macmillan, 1995, .
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
The Internal Security Act of 1950, (Public Law 81-831), also known as the Subversive Activities Control Act of 1950, the McCarran Act after its principal sponsor Sen. Pat McCarran (D-Nevada), or the Concentration Camp Law, is a United States fede ...
, 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
J. Robert Oppenheimer (; April 22, 1904 – February 18, 1967) was an American theoretical physicist. A professor of physics at the University of California, Berkeley, Oppenheimer was the wartime head of the Los Alamos Laboratory and is oft ...
.
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 increase in funding to support Smith Act prosecutions.
[Sabin, p 56. ]
See also Fast, Howard, "The Big Finger", ''Masses & Mainstream'', March, 1950, pp 62–68. He testified that there were 21,105 potential persons that could be indicted under the Smith Act, and that 12,000 of those would be indicted if the Smith Act was upheld as constitutional.
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.
Legal appeals of 1949 trial
The 1949 trial defendants appealed to the
Second Circuit Court of Appeals
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
in 1950.
In the appeal they raised issues about the use of informant witnesses, the impartiality of the jury and judge, the judge's conduct, and
free speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
.
[Belknap (2005), pp 258–259.] Their free speech arguments raised important constitutional issues: they asserted that their political advocacy was protected by the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
, because the CPUSA did not advocate imminent violence, but instead merely promoted revolution as an abstract concept.
Free speech law
One of the major issues raised on appeal was that the defendants' political advocacy was protected by the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
, because the CPUSA did not advocate imminent violence, but instead merely promoted revolution as an abstract concept.
In the early twentieth century, the primary legal test used in the United States to determine if speech could be criminalized was the
bad tendency
In U.S. law, the bad tendency principle was a test that permitted restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in '' Patte ...
test.
[Rabban, pp 132–134, 190–199.] Rooted in English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
, the test permitted speech to be outlawed if it had a tendency to harm public welfare.
One of the earliest cases in which the Supreme Court addressed punishment after material was published was ''
Patterson v. Colorado'' (1907) in which the Court used the bad tendency test to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies.
Anti-war protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case ''
Schenck v. United States
''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes ...
'' the Supreme Court held that an anti-war activist did not have a First Amendment right to speak out against the draft.
[Killian, p 1093.] In his majority opinion,
Justice Holmes introduced the
clear and present danger
''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to '' The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence in ...
test, which would become an important concept in First Amendment law; but the ''Schenck'' decision did not formally adopt the test.
Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test.
Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.
[Killian, pp 1096, 1100.]
Currie, David P., ''The Constitution in the Supreme Court: The Second Century, 1888–1986, Volume 2'', University of Chicago Press, 1994, p 269, .
Konvitz, Milton Ridvad, ''Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly'', Transaction Publishers, 2003, p 304, .
Eastland, p 47.
The Court continued to use the bad tendency test during the early twentieth century in cases such as 1919's ''
Abrams v. United States'' which upheld the conviction of anti-war activists who passed out leaflets encouraging workers to impede the war effort. In ''Abrams'', Holmes and
Justice Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and Associate Justice of the Supreme Court of the United States, associate justice on the Supreme Court of the United States from 1916 to 1939.
Starti ...
dissented and encouraged the use of the clear and present test, which provided more protection for speech. In 1925's ''
Gitlow v. New York
''Gitlow v. New York'', 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of spe ...
'', the Court extended the First Amendment to the states, and upheld the conviction of Gitlow for publishing the "
Left Wing Manifesto". ''Gitlow'' was decided based on the bad tendency test, but the majority decision acknowledged the validity of the clear and present danger test, yet concluded that its use was limited to Schenck-like situations where the speech was not specifically outlawed by the legislature.
Brandeis and Holmes again promoted the clear and present danger test, this time in a concurring opinion in 1927's ''
Whitney v. California'' decision.
[Dunlap, William V., "National Security and Freedom of Speech", in Finkelman (vol 1), pp 1072–1074.] The majority did not adopt or use the clear and present danger test, but the concurring opinion encouraged the Court to support greater protections for speech, and it suggested that "imminent danger"a more restrictive wording than "present danger"should be required before speech can be outlawed. After ''Whitney'', bad tendency tests continued to be used by the Court in cases such 1931's ''
Stromberg v. California'', which held that a 1919 California statute banning red flags was unconstitutional.
The clear and present danger test was invoked by the majority in the 1940 ''
Thornhill v. Alabama'' decision in which a state anti-picketing law was invalidated.
Although the Court referred to the clear and present danger test in a few decisions following ''Thornhill'', the bad tendency test was not explicitly overruled,
and the clear and present danger test was not applied in several subsequent free speech cases involving incitment to violence.
Appeal to the federal Court of Appeals
In May 1950, one month before the appeals court heard
oral arguments
Oral arguments are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also a ...
in the CPUSA case, the Supreme Court ruled on free speech issues in ''
American Communications Association v. Douds''. In that case the Court considered the clear and present danger test, but rejected it as too mechanical and instead introduced a
balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such legal tests argue that they allow a deeper consideration of complex issues than a bright-line rule can allow. B ...
. The federal appeals court heard oral arguments in the CPUSA case on June 21–23, 1950. Two days later, on June 25,
South Korea
South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korean Peninsula and sharing a land border with North Korea. Its western border is formed by the Yellow Sea, while its eas ...
was invaded by forces from communist
North Korea
North Korea, officially the Democratic People's Republic of Korea (DPRK), is a country in East Asia. It constitutes the northern half of the Korean Peninsula and shares borders with China and Russia to the north, at the Yalu (Amnok) and T ...
, marking the start of the
Korean War
, date = {{Ubl, 25 June 1950 – 27 July 1953 (''de facto'')({{Age in years, months, weeks and days, month1=6, day1=25, year1=1950, month2=7, day2=27, year2=1953), 25 June 1950 – present (''de jure'')({{Age in years, months, weeks a ...
; during the two months that the appeals court judges were forging their opinions, the Korean War dominated the headlines.
[Belknap (1994), p 222.] On August 1, 1950, the appeals court unanimously upheld the convictions in an opinion written by Judge
Learned Hand
Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...
. Judge Hand considered the clear and present danger test, but his opinion adopted a balancing approach similar to that suggested in ''American Communications Association v. Douds''.
In his opinion, Hand wrote:
In each case they he courtsmust 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 ommunism which abjures the possibility of success by lawful means.
The opinion specifically mentioned the contemporary dangers of communism worldwide, with emphasis on the
Berlin Airlift
The Berlin Blockade (24 June 1948 – 12 May 1949) was one of the first major international crises of the Cold War. During the multinational occupation of post–World War II Germany, the Soviet Union blocked the Western Allies' railway, roa ...
.
[Smith, J. Y., "Harold R. Medina, 102, Dies; Ran 1949 Conspiracy Trial", ''The Washington Post'', March 17, 1990. ]
Sabin, p 79 (Cold War in ''Dennis'' case).
Appeal to the Supreme Court
![FredVinsonReadingBook](https://upload.wikimedia.org/wikipedia/commons/8/81/FredVinsonReadingBook.jpg)
The defendants appealed the Second Circuit's decision to the Supreme Court in ''
Dennis v. United States
''Dennis v. United States'', 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the ...
''. During the Supreme Court appeal, the defendants were assisted by the
National Lawyers Guild
The National Lawyers Guild (NLG) is a progressive public interest association of lawyers, law students, paralegals, jailhouse lawyers, law collective members, and other activist legal workers, in the United States. The group was founded in 19 ...
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. Chief Justice
Fred Vinson's opinion stated that the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
does not require that the government must wait "until the
putsch is about to be executed, the plans have been laid and the signal is awaited" before it interrupts seditious plots. In his opinion, Vinson endorsed the balancing approach used by Judge Hand:
[''Dennis v. United States'' – 341 U.S. 494 (1951)](_blank)
Justia. Retrieved March 20, 2012.
Vinson's opinion also addressed the contention that Medina's jury instructions were faulty. The defendants claimed that Medina's statement that "as matter of law that there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution" was erroneous, but Vinson concluded that the instructions were an appropriate interpretation of the Smith Act.
The Supreme Court was, in one historian's words, "bitterly divided" on the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
issues presented by ''Dennis''.
[O'Brien, pp 7–8] Justices
Hugo Black and
William O. Douglas
William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
dissented 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."
Following the ''Dennis'' decision, the Court utilized balancing tests for free speech cases, and rarely invoked the clear and present danger test.
Appeal of contempt sentences
The defense attorneys appealed their contempt sentences, which were handed out by Judge Medina under Rule 42 of the
Federal Rules of Criminal Procedure The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts and the general trial courts of the U.S. government. They are the companion to the Federa ...
. 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. They argued that the contempt charges would prevent future CPUSA defendants from obtaining counsel, because attorneys would be afraid of judicial retaliation.
The 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.
[''Sacher v. United States'' 343 U.S. 1 (1952)](_blank)
Retrieved March 20, 2012.
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
Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an Associate Justice of the U.S. Supreme Court from 1941 until his death in 1954. He had previously served as Uni ...
, 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
![Elizabeth G](https://upload.wikimedia.org/wikipedia/commons/0/00/Elizabeth_G._Flynn.jpg)
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.
[Belknap (1994), p 225–226.] The second-tier defendants were prosecuted in three waves: 1951, 1954, and 1956.
Their trials were held in more than 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
Elizabeth Gurley Flynn (August 7, 1890 – September 5, 1964) was a labor leader, activist, and feminist who played a leading role in the Industrial Workers of the World (IWW). Flynn was a founding member of the American Civil Liberties Union ...
); Honolulu, Pittsburgh, Philadelphia, Cleveland, 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. The five defense attorneys at the 1949 trial had been jailed for contempt of court,
and both
Abraham J. Isserman and Harry Sacher were
disbar
Disbarment, also known as striking off, is the removal of a lawyer from a bar association or the practice of law, thus revoking their law license or admission to practice law. Disbarment is usually a punishment for unethical or criminal con ...
red. 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 more than one hundred attorneys before finding one who would take their case; defendant
Steve Nelson could not find a lawyer in Pennsylvania who would represent him in his Smith Act trial, so he was forced to represent himself. Judges sometimes had to appoint unwilling counsel for defendants who could not find a lawyer to take their cases. The
National Lawyers Guild
The National Lawyers Guild (NLG) is a progressive public interest association of lawyers, law students, paralegals, jailhouse lawyers, law collective members, and other activist legal workers, in the United States. The group was founded in 19 ...
provided some lawyers to the defendants, but in 1953 Attorney General
Herbert Brownell Jr.
Herbert Brownell Jr. (February 20, 1904 – May 1, 1996) was an American lawyer and Republican politician. From 1953 to 1957, he served as United States Attorney General in the administration of President Dwight D. Eisenhower.
Early life
Brow ...
threatened to list the Guild as a subversive organization, causing half its members to leave.
Some second-tier defendants were unable to post bail because the government refused to permit the Civil Rights Congress (CRC) legal defense fund to provide bail funding.
[Sabin, pp 49–50.] 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
Samuel Dashiell Hammett (; May 27, 1894 – January 10, 1961) was an American writer of hard-boiled detective novels and short stories. He was also a screenwriter and political activist. Among the enduring characters he created are Sam Spade ('' ...
, 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 $70,000 ($ in dollars) from his activities as a witness.
California convictions reversed
![Earl Warren](https://upload.wikimedia.org/wikipedia/commons/0/04/Earl_Warren.jpg)
The federal appeals courts upheld all convictions of second-tier officials. The Supreme Court refused to hear their appeals until 1956, when it agreed to hear the appeal of the California defendants; this led to the landmark ''
Yates v. United States
''Yates v. United States'', 354 U.S. 298 (1957), was a case decided by the Supreme Court of the United States that held that the First Amendment protected radical and reactionary speech, unless it posed a " clear and present danger."
Background
...
'' decision.
Fourteen second-tier CPUSA officials from California who had been convicted of Smith Act violations appealed, and on June 17, 1957, known as "Red Monday", the Supreme Court reversed their convictions. By the time the Court ruled 6–1 in ''
Yates v. United States
''Yates v. United States'', 354 U.S. 298 (1957), was a case decided by the Supreme Court of the United States that held that the First Amendment protected radical and reactionary speech, unless it posed a " clear and present danger."
Background
...
'', four of the Supreme Court Justices who had supported the 1951 ''Dennis'' decision had been replaced, including Chief Justice Vinson. He was replaced by Chief Justice
Earl Warren.
The decision in ''Yates'' undermined the 1951 ''Dennis'' decision by holding that contemplation of abstract, future violence may not be prohibited by law, but that urging others to act in violent ways may be outlawed.
[Belknap (2001), p 869 (defines the term "Red Monday"; on that day, a companion case, '' Watkins v. United States'', was also decided). ]
Sabin, p 10.
Writing for the majority, Justice
John Marshall Harlan
John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American lawyer and politician who served as an associate justice of the U.S. Supreme Court from 1877 until his death in 1911. He is often called "The Great Dissenter" due to his ...
introduced the notion of balancing society's right of self-preservation against the right to free speech.
He wrote:
''Yates'' did not rule the Smith Act unconstitutional or overrule the ''Dennis'' decision, but ''Yates'' limited the application of the Act to such a degree that it became nearly unenforceable. The ''Yates'' decision outraged some conservative members of Congress, who introduced legislation to limit judicial review of certain sentences related to sedition and treason. This bill did not pass.
[Belknap, Michal, "Communism and Cold War", in ''Oxford Companion to the Supreme Court'', Oxford University Press, 2005, p 199, .]
Membership clause
Four years after the ''Yates'' decision, the Supreme Court reversed the conviction of another second-tier CPUSA leader, John Francis Noto of New York, in the 1961 ''
Noto v. United States
''Noto v. United States'', 367 U.S. 290 (1961), was a 1961 United States Supreme Court case that reversed the felony conviction of a lower-echelon official of the Communist Party USA (CPUSA).
Background
John Francis Noto of Buffalo, New York, was ...
'' case.
[''Noto v. United States'' 367 U.S. 290 (1961)](_blank)
Justia. Retrieved March 20, 2012.
The preceding federal appeals case, which upheld the conviction, was ''United States v. John Francis Noto'', 262 F.2d 501 (2d Cir. 1958) Noto was convicted under the membership clause of the Smith Act, and he challenged the constitutionality of that clause on appeal.
The membership clause was in the portion of the Smith Act that made it a crime "to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof ...".
In a unanimous decision, 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.
[Konvitz, "Noto v. United States", p 697: "There must be substantial evidence, direct or circumstantial, of a call to violence 'now or in the future' that is both 'sufficiently strong and sufficiently persuasive' to lend color to the 'ambiguous theoretical material' regarding Communist party teaching ... and also substantial evidence to justify the reasonable inference that the call to violence may fairly be imputed to the party as a whole and not merely to a narrow segment of it."] On behalf of the majority, Justice Harlan wrote:
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, with Douglas writing that "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."
Final conviction
In 1958 at his second trial,
Junius Scales, the leader of the North Carolina branch of the CPUSA, became the final CPUSA member convicted under the Smith Act. He was 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 accused of violating the membership clause of the Smith Act, not the clause prohibiting advocacy of violence against the government.
[Goldstein, Robert Justin, '' Political Repression in Modern America'', (]University of Illinois Press
The University of Illinois Press (UIP) is an American university press and is part of the University of Illinois system. Founded in 1918, the press publishes some 120 new books each year, plus 33 scholarly journals, and several electronic proje ...
, 1978, 2001) p.417, . Other CPUSA leaders, such as Noto, were convicted under the membership clause, but Scales was the only one whose conviction was not overturned on appeal. In his appeal to the Supreme Court, Scales contended that the 1950
McCarran Internal Security Act
The Internal Security Act of 1950, (Public Law 81-831), also known as the Subversive Activities Control Act of 1950, the McCarran Act after its principal sponsor Sen. Pat McCarran (D-Nevada), or the Concentration Camp Law, is a United States fede ...
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
Per se may refer to:
* '' per se'', a Latin phrase meaning "by itself" or "in itself".
* Illegal ''per se'', the legal usage in criminal and antitrust law
* Negligence ''per se'', legal use in tort law
* Per Se (restaurant), a New York City restaur ...
'' violation of any criminal statute.
[Scales v. United States, 367 U.S. 203 (1961)](_blank)
Oyez. Retrieved March 20, 2012. In 1961, the Supreme Court, in a 5–4 decision, upheld Scales' conviction, 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.
[Konvitz, "Scales v. United States", p 882: "Since the Communist party was considered an organization that engaged in criminal activity, the Court saw no constitutional obstacle to the prosecution of a person who actively and knowingly works in its ranks with intent to contribute to the success of its illegal objectives. Even though the evidence disclosed no advocacy for immediate overthrow of the government, the Court held that present advocacy of future action satisfied statutory and constitutional requirements no less than advocacy of immediate action."] Two Justices of the Supreme Court who had supported the ''Yates'' decision in 1957, Harlan and Frankfurter, voted to uphold Scales' conviction.
Scales was the only defendant convicted under the membership clause. All others were convicted of conspiring to overthrow the government.
President Kennedy
John Fitzgerald Kennedy (May 29, 1917 – November 22, 1963), often referred to by his initials JFK and the nickname Jack, was an American politician who served as the 35th president of the United States from 1961 until assassination of Joh ...
commuted his sentence on Christmas Eve, 1962, making Scales the final Smith Act defendant released from prison. ''Scales'' is the only Supreme Court decision to uphold a conviction based solely upon membership in a political party.
Aftermath
Legal
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 people had been indicted, resulting in 105 convictions, with cumulative sentences totaling 418 years and $435,500 ($ in dollars) in fines. Fewer than half the convicted communists served jail time.
The Smith Act, , though amended several times, has not been repealed.
For two decades after the ''Dennis'' decision, free speech issues related to advocacy of violence were decided using balancing tests such as the one initially articulated in ''Dennis''. In 1969, the court established stronger protections for speech in the landmark case ''
Brandenburg v. Ohio
''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that s ...
'' which held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action". ''Brandenburg'' is now the standard applied by the Court to free speech issues related to advocacy of violence.
CPUSA downfall
The Smith Act trials decimated the leadership ranks of the CPUSA.
Immediately after the 1949 trial, the CPUSAalarmed at the undercover informants that had testified for the prosecutioninitiated 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 inside the
Atlanta penitentiary
The United States Penitentiary, Atlanta (USP Atlanta) is a medium-security United States federal prison for male inmates in Atlanta, Georgia. It is operated by the Federal Bureau of Prisons, a division of the United States Department of Justice ...
, but prison officials censored his mail and successfully isolated him from the outside world.
Prison officials from the
Lewisburg prison
The United States Penitentiary, Lewisburg (USP Lewisburg) is a medium-security United States federal prison in Pennsylvania for male inmates. It is operated by the Federal Bureau of Prisons, a division of the United States Department of Justice. ...
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,
Nikita Khrushchev
Nikita Sergeyevich Khrushchev (– 11 September 1971) was the First Secretary of the Communist Party of the Soviet Union from 1953 to 1964 and chairman of the country's Council of Ministers from 1958 to 1964. During his rule, Khrushchev s ...
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.
CPUSA leaders
![Gus hall headshot](https://upload.wikimedia.org/wikipedia/commons/1/1e/Gus_hall_headshot.jpg)
The defendants at the 1949 trial were released from prison in the mid-1950s.
Gus Hall
Gus Hall (born Arvo Kustaa Halberg; October 8, 1910 – October 13, 2000) was the General Secretary of the Communist Party USA (CPUSA) and a perennial candidate for president of the United States. He was the Communist Party nominee in the ...
served 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.
Eugene Dennis
Francis Xavier Waldron (August 10, 1905 – January 31, 1961), best known by the pseudonym Eugene Dennis and Tim Ryan, was an American communist politician and union organizer, best remembered as the long-time leader of the Communist Party USA a ...
continued to be involved in the CPUSA and died in 1961.
Benjamin J. Davis
Benjamin Jefferson Davis Jr. (September 8, 1903 – August 22, 1964), was an African-American lawyer and communist who was elected in 1943 to the New York City Council, representing Harlem. He faced increasing opposition from outside Harlem a ...
died in 1964.
Jack Stachel
Jacob Abraham "Jack" Stachel (19001965) was an American Communist functionary who was a top official in the Communist Party from the middle 1920s until his death in the middle 1960s. Stachel is best remembered as one of 11 Communist leaders conv ...
, who continued working on the ''
Daily Worker
The ''Daily Worker'' was a newspaper published in New York City by the Communist Party USA, a formerly Comintern-affiliated organization. Publication began in 1924. While it generally reflected the prevailing views of the party, attempts were ...
'', died in 1966.
John Gates
John "Johnny" Gates, born Solomon Regenstreif (28 September 1913 – 23 May 1992) was an American Communist business man, best remembered as one of the individuals spearheading a failed attempt at liberalization of the Communist Party USA in ...
became disillusioned with the CPUSA after the revelation of Stalin's
Great Purge
The Great Purge or the Great Terror (russian: Большой террор), also known as the Year of '37 (russian: 37-й год, translit=Tridtsat sedmoi god, label=none) and the Yezhovshchina ('period of Yezhov'), was Soviet General Secret ...
; he quit the Party in 1958 and later gave a television interview to
Mike Wallace
Myron Leon Wallace (May 9, 1918 – April 7, 2012) was an American journalist, game show host, actor, and media personality. He interviewed a wide range of prominent newsmakers during his seven-decade career. He was one of the original correspo ...
in which he blamed the CPUSA's "unshaken faith" in the Soviet Union for the organization's downfall.
Henry Winston
Henry M. Winston (April 2, 1911December 13, 1986) was an African-American political leader and Marxist civil rights activist.
Winston, committed to equal rights and communism, was an advocate of civil rights for African Americans decades before ...
became co-chair of the CPUSA (with Hall) in 1966 and was awarded the
Order of the October Revolution
The Order of the October Revolution (russian: Орден Октябрьской Революции, ''Orden Oktyabr'skoy Revolyutsii'') was instituted on October 31, 1967, in time for the 50th anniversary of the October Revolution. It was conferr ...
by the Soviet Union in 1976.
After leaving prison, Carl Winter resumed Party activities, became editor of the ''Daily Worker'' in 1966, and died in 1991.
Gil Green was released from
Leavenworth prison
The United States Penitentiary, Leavenworth (USP Leavenworth) is a medium security U.S. penitentiary with an adjacent minimum security satellite camp in northeast Kansas. It is operated by the Federal Bureau of Prisons, a division of the Unite ...
in 1961 and continued working with the CPUSA to oppose the Vietnam War.
Party leader
William Z. Foster, 69 years old at the time of the 1949 trial, was never tried due to ill health; he retired from the Party in 1957 and died in Moscow in 1961.
John Williamson was released early, in 1955, and deported to England, although he had lived in the United States since the age of ten.
[Martelle, p 254.] Irving Potash moved to Poland after his release from prison, then re-entered the United States illegally in 1957, and was arrested and sentenced to two years for violating immigration laws.
Robert G. Thompson skipped bail, was captured in 1953, and sentenced to an additional four years. He died in 1965 and US Army officials refused him burial in
Arlington National Cemetery
Arlington National Cemetery is one of two national cemeteries run by the United States Army. Nearly 400,000 people are buried in its 639 acres (259 ha) in Arlington, Virginia. There are about 30 funerals conducted on weekdays and 7 held on Sa ...
. His wife challenged that decision, first losing in US District Court and then winning in the Court of Appeals. Defense attorney
George W. Crockett Jr. later became a
Democratic congressman from Michigan.
[Schrecker, Ellen, ''The Age of McCarthyism: a Brief History with Documents'', Palgrave Macmillan, 2002, p 203, .]
Footnotes
References
* Auerbach, Jerold S., ''Unequal Justice: Lawyers and Social Change in Modern America'', Oxford University Press, 1977,
* Belknap, Michal R., ''Cold War Political Justice: the Smith Act, the Communist Party, and American Civil Liberties'', Greenwood Press, 1977,
* Belknap, Michal R., "Foley Square Trial", in ''American Political Trials'', (Michal Belknap, Ed.), Greenwood Publishing Group, 1994,
* 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,
* Eastland, Terry, ''Freedom of Expression in the Supreme Court: The Defining Cases'', Rowman & Littlefield, 2000,
*
Finkelman, Paul (Editor), ''Encyclopedia of American Civil Liberties'' (two volumes), CRC Press, 2006,
*
Haynes, John Earl,
Klehr, Harvey, ''Venona: Decoding Soviet Espionage in America'', Yale University Press, 2000,
* Kemper, Mark, "Freedom of Speech", in Finkelman, Vol 1, p 653–655.
* Killian, Johnny H.; Costello, George; Thomas, Kenneth R., ''The Constitution of the United States of America: Analysis and Interpretation'', Library of Congress, Government Printing Office, 2005,
*
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,
*
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,
*
Morgan, Ted, ''Reds: McCarthyism in Twentieth-Century America'', Random House, 2004,
* 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,
*
Navasky, Victor S., ''Naming Names'', Macmillan, 2003,
* Powers, Richard Gid, ''Broken: the Troubled Past and Uncertain Future of the FBI'', Simon and Schuster, 2004,
* Rabban, David, ''Free Speech in Its Forgotten Years'', Cambridge University Press, 1999,
* Redish, Martin H., ''The Logic of Persecution: Free Expression and the McCarthy Era'', Stanford University Press, 2005,
* Sabin, Arthur J., ''In Calmer Times: the Supreme Court and Red Monday'', University of Pennsylvania Press, 1999,
* Starobin, Joseph R., ''American Communism in Crisis, 1943–1957'', University of California Press, 1975,
* Walker, Samuel, ''In Defense of American Liberties: A History of the ACLU'', Oxford University Press, 1990,
Further reading
* Bell, Jonathan, ''The Liberal State On Trial: The Cold War And American Politics In The Truman Years'', Columbia University Press, 2004,
* 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,
* Caute, David, ''The Great Fear: the Anti-Communist purge under Truman and Eisenhower'', Simon and Schuster, 1978,
* 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,
* Smith, Craig R., ''Silencing the Opposition: How the U.S. Government Suppressed Freedom of Expression During Major Crises'', SUNY Press, 2011,
* Steinberg, Peter L., ''The Great "Red menace": United States Prosecution of American Communists, 1947–1952'', Greenwood Press, 1984,
*
Stone, Geoffrey R., ''Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism'', W. W. Norton, 2004,
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,
*
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
*
Flynn, Elizabeth Gurley, ''My Life as a Political Prisoner: The Rebel Girl Becomes No. 11710'', International Publishers, 2019,
*
Foster, William Z., ''History of the Communist Party of the United States'', Greenwood Press, 1968,
*
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,
*
Healey, Dorothy; and Isserman, Maurice, ''California Red: A Life in the American Communist Party'', University of Illinois Press, 1993,
* Lannon, Albert, ''Second String Red: The Life of Al Lannon, American Communist'', Lexington Books, 1999,
*
Nelson, Steve, ''Steve Nelson, American Radical'', University of Pittsburgh Press, 1992,
*
Scales, Junius Irving, and Nickson, Richard, ''Cause at Heart: A Former Communist Remembers'', University of Georgia Press, 2005,
*
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,
*
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
Francis Xavier Waldron (August 10, 1905 – January 31, 1961), best known by the pseudonym Eugene Dennis and Tim Ryan, was an American communist politician and union organizer, best remembered as the long-time leader of the Communist Party USA a ...
and his wife, Peggy Dennis, during the McCarthyism era.
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