The Logic of Persecution: Free Expression And the McCarthy Era - Softcover

Redish, Martin

Softcover

ISBN 10: 0804755930 ISBN 13: 9780804755931

Publisher: Stanford University Press, 2006

Synopsis

This book demonstrates that neither the current liberal nor conservative position on the McCarthy era provides the basis for an appropriate normative perspective. Adding the perspective of the theory of free expression, it becomes apparent that both sides have ignored a vitally important point. While recently declassified documents demonstrate widespread participation by American Communists in conducting or facilitating espionage, much of the negative treatment received by American Communists had little or nothing to do with such activity.

From the perspective of the First Amendment right of free speech, there exists a significant difference between speech that advocates conduct, on the one hand, and speech that itself is part of a nonspeech criminal act, such as espionage, on the other. By helping to separate protected speech from unprotected "speech-acts," First Amendment theory can do much to distinguish between the legitimate governmental responses to American Communism and those that contravened basic notions of communicative freedom protected by the Constitution. At the same time, by focusing the First Amendment inquiry on the McCarthy era, one should be able to glean insights about the broader implications of free speech protection.

About this title

About the Author

Martin H. Redish is Louis and Harriet Ancel Professor of Law and Public Policy at the Northwestern University School of Law.

From the Back Cover

“The Logic of Persecution, by Martin Redish is a well-crafted and consistently engrossing attempt to reconfigure our understanding of ‘McCarthy era’ constitutional history . . .”—Law and Politics Book Review
“The Logic of Persecution is an extremely important work of First Amendment theory.... [It] is also a valuable contribution to the historiography of the so-called McCarthy erea, adding important insights to the historical debate over the period’s Communism and anti-Communism....the Logic of Persecution will undoubtedly be the starting point for those looking for a scholarly legal perspective on such issues.”—Jonathan Bernstin, George Mason Law School

From the Inside Flap

This book demonstrates that neither the current liberal nor
conservative position on the McCarthy era provides the basis for an appropriate normative perspective. Adding the perspective of the theory of free expression, it becomes apparent that both sides have ignored a vitally important point. While recently declassified documents demonstrate widespread participation by American Communists in conducting or facilitating espionage, much of the negative treatment received by American Communists had little or nothing to do with such activity.
From the perspective of the First Amendment right of free speech, there exists a significant difference between speech that advocates conduct, on the one hand, and speech that itself is part of a nonspeech criminal act, such as espionage, on the other. By helping to separate protected speech from unprotected “speech-acts,” First Amendment theory can do much to distinguish between the legitimate governmental responses to American Communism and those that contravened basic notions of communicative freedom protected by the Constitution. At the same time, by focusing the First Amendment inquiry on the McCarthy era, one should be able to glean insights about the broader implications of free speech protection.

Excerpt. © Reprinted by permission. All rights reserved.

The Logic of Persecution

Free Expression and the McCarthy EraBy Martin H. Redish

STANFORD UNIVERSITY PRESS

Copyright © 2005 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-5593-1

Contents

Preface...........................................................................................ix1 Introduction: Logic, History, and the McCarthy Era..............................................12 The Legal Topography of the McCarthy Era........................................................233 McCarthyism, Free Expression, and the Role of Pathology in American History.....................464 Unlawful Advocacy, Free Speech, and the McCarthy Era............................................635 HUAC, The Hollywood Ten, and the First Amendment Right of Nonassociation........................1326 Public Education, Free Speech, and the McCarthy Era.............................................1727 Conclusion: The McCarthy Era as a First Amendment Laboratory....................................220Notes.............................................................................................227Index.............................................................................................297

Chapter One

Introduction: Logic, History, and the McCarthy Era

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

-Supreme Court Justice Oliver Wendell Holmes Jr., dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919)

To historians, the cold war in recent years has become quite hot. More than twenty years after the historical book on the so-called McCarthy era of the late 1940s and early 1950s in the United States appeared to have been irrevocably sealed, startling revelations in the 1990s of previously secret documents-documents whose very existence was unknown except to a very few-appeared to dramatically alter well-accepted understandings of historians about this troubled period in American history. During that era, when the nation first began to grasp the gravity of the threat posed by the Soviet Union and the Eastern bloc nations to our national security, both the government and private institutions imposed extensive and severe punishment on American communists, and often any American who at one time had been a communist (or even suspected of being a communist) and who failed to repudiate those connections.

Once the McCarthy era ended, historians vigorously debated whether such suppression was ever justified by anything other than the nation's naked ideological repugnance for communism. Many concluded that, whatever dangers the Soviet Union and its allies may have presented, American communists caused no real threat to our internal security. Rather, the expression of national security concerns was merely a subterfuge, strategically designed to justify the persecution of those who held repugnant political views. Others, however, continued to see American communists as nothing more than a tool of Joseph Stalin and the Soviet Union. In the words of a respected group of historians, "[t]o their admirers and defenders, American Communists [were] usually ... seen as idealistic and committed radical populists. They built unions, fought for racial and social equality, and battled fascism, often prodding their reluctant fellow citizens to live up to America's democratic ideals." However, "[t]o their enemies, American Communists were `soldiers of Stalin,' committed to a totalitarian philosophy and willing to alter their political stance whenever it suited the foreign policy needs of the Soviet Union."

By the early 1970s, the view that American communists had presented no real threat had become the dominant position among American historians. The fears of the dangers presented by American communists that had dominated American society during the period in question were generally "dismissed as the product of paranoid fears created by third-rate spy novels." Certainly, those scholars who adopted this so-called revisionist view argued, whatever minimal threat to which the Communist Party of the United States of America (CPUSA) actually gave rise failed to justify the widespread suppression of American communists that took place during the period in question. The true rationale for the suppression of American communists, according to the revisionists, was not really a threat to national security, but rather the ideological offensiveness of the views expressed by American communists. In the words of the two leading modern historians on the subject, John Earl Haynes and Harvey Klehr, "[i]f one were to read [the] early revisionists' writings and nothing else, one would gain the impression that the CPUSA was largely a figment of the anticommunist imagination and that anticommunists were simply paranoids embarked on a hunt for imaginary witches." Moreover, "[w]here early revisionists had dismissed American communists as so unimportant that public fears about them were irrational, the second wave of revisionists believed communists to have been important shapers of American politics and culture."

Those who vigorously opposed communism during the McCarthy era did so for a variety of reasons: fear on the part of American business people that communism would undermine well-established principles of American capitalism; antagonism on the part of religious Catholic Eastern European immigrants who had themselves witnessed the viciousness of communist suppression firsthand; and concern by American liberals about the totalitarian threat to human rights and democracy that communism presented. From the revisionist perspective, then, all of the seemingly wild allegations of American communist espionage or attempted overthrow made during the 1940s and 1950s were, for the most part, unsupported or even concocted means of discrediting American communists, designed to justify the suppression by both public and private levels of American society.

For much of the latter part of the twentieth century, this view was so widely accepted that few scholars bothered to challenge it seriously. As the last decade of the century dawned, this well-accepted view was about to change dramatically. It was the revelation of two sets of previously unavailable documents, one in the United States and one in the former Soviet Union, that jolted the relatively peaceful world of mid-twentieth-century American political history. Although "[t]he revisionists ... either denied or downplayed arguments about what others have described as the dark side of American communism," these documents, according to the historians who initially reviewed them, "provided a powerful challenge to the revisionist perspective."

The first set of documents to be made known to the world in the 1990s were the so-called Comintern documents, named after the entity in the Soviet Union that for many years had supervised communist parties throughout the world. The documents were made available, in a limited manner, by the Russian government to selected American historians after the fall of the Soviet Union. After the revelations of Comintern were made known, "[i]t [was] no longer possible to maintain that the Soviet Union did not fund the American party, that the CPUSA did not maintain a covert apparatus, and that key leaders and cadres were innocent of connection with Soviet espionage." These documents established that the CPUSA had never functioned as an independent political organization. Indeed, according to the historians who reviewed the documents, apparently "there was never a time when the CPUSA made its decisions autonomously, without being obliged to answer to or-more precisely-without wishing to answer to Soviet authority."

An even more startling historical jolt came in 1995, with the declassification of the highly secret Venona documents. These were previously unknown decryptions of cable messages sent by agents of the Soviet intelligence service, the KGB, in America back to officials in Moscow. The United States had originally begun the secret decryption program in 1943, in order to determine whether the Soviet Union was seriously pursuing a separate peace with Nazi Germany. By the time that American intelligence officials had deciphered the first messages in 1946, the war was over and the program's initial goal was therefore rendered superfluous. What the United States agents learned, however, proved far more important than an answer to the original inquiry. In the words of historians Haynes and Klehr, "[e]spionage, not diplomacy, was the subject of these cables." The United States discovered that since 1942, the nation had been targeted by an intense and widespread Soviet espionage program that had utilized numerous professional Soviet agents and hundreds of Americans, often taken from the ranks of the CPUSA's so-called secret apparatus-cadres of specially recruited American communists who were fiercely loyal to the party and its goals.

Since the revelations of Venona in the mid-1990s, numerous books on the subject or closely related matters have been published. Many have been highly critical of American communists during the McCarthy era and antagonistic to the revisionist view, although one of the glaring exceptions is the articulate-if controversial-defense of the revisionist view made by Ellen Schrecker in her book Many Are the Crimes: McCarthyism in America. Even after the revelations of Venona, Schrecker (who, in the paperback edition of her book, candidly acknowledged that "[f]or some reason, this book touched an ideological nerve") wrote openly of "the political repression of the McCarthy era" and the "[d]istorted" perception of "a lockstep party and the automatons within its ranks." Although she conceded "that some genuinely damaging espionage did take place," she also sought to defend those involved. "Unlike Soviet agents later in the Cold War," she argued, "the men and women who gave information to Moscow in the 1930s and 1940s did so for political, not pecuniary, reasons. They were already committed to communism and they viewed what they were doing as their contribution to the cause." Schrecker further asserted that American communists were simply "internationalists," whose loyalty went beyond national boundaries. Finally, she noted, "most of their espionage took place during World War II, when the United States and the Soviet Union were on the same side. These people were not, therefore, spying for an enemy." Thus, although Schrecker does not completely dismiss the impact of the Venona documents, she does seek to dilute or deflect the force of their impact.

In contrast to Schrecker, a number of revisionist scholars have acknowledged the untenability of their position in light of the revelations of Venona. At the same time, since the revelations of the Comintern and Venona documents, a number of anticommunist commentators have claimed varying degrees of vindication for the treatment given to American communists during the cold war. As Haynes and Klehr have argued, "[w]hat Ellen Schrecker is still unable to understand is that American communism declined because of the determined campaign by anticommunists of every political hue." Soviet intelligence agencies abandoned use of the CPUSA, they claim, "not because they had developed ethical objections to this strategy or because the CPUSA had developed moral objections to it. Soviet intelligence abandoned use of the CPUSA for espionage because it had become risky. Had the U.S. government and the American public not adopted anticommunist policies, [Soviet intelligence agencies] would have happily continued as before."

Although the debate among historians has continued unabated, an important perspective appears to have been ignored by all involved. None of the historians on either side of the historical debate has attempted an in-depth consideration of the implications of the theory of free expression for a proper understanding of the McCarthy era in a post-Venona world. The point to be made in this book is that the post-Venona McCarthy era is sorely in need of close examination through the lens of constitutional analysis. When one adds to the debate the perspectives of the First Amendment right of free speech and the political theory of free expression, I believe, one is able to recognize complexities on both sides of the historical debate that have been largely ignored by the historians.

Initially, when one includes the First Amendment perspective in assessing the implications of the Comintern and Venona documents, it becomes clear that the modern anticommunist commentators have grossly overstated the logical implications of the revelations, even assuming their total accuracy. This is in no way to suggest that the revelations contained in these documents are insignificant. The point, rather, is that the documents' revelations do not free the government from all moral and political condemnation for its behavior during the McCarthy era. To be sure, the Venona documents clearly appear to support the allegations of and prosecutions for espionage against numerous American communists, many of whom served at shockingly high levels of the federal government, including Assistant Secretary of the Treasury Harry Dexter White, administrative assistant to the president Lauchlin Currie, and high-ranking State Department official Alger Hiss. There now appears to be little question that many of the allegations of espionage made during the 1940s that seemed wild to many were, in fact, completely accurate.

Several scholars and commentators on the political left have questioned the veracity of the documents, but absent some affirmative reason to doubt their validity, it would seem reasonable to assume their accuracy. Because code names were used in the decoded messages, one might raise doubt as to the conclusions reached as exactly to whom the messages refer. But even assuming that these doubts are reasonable as to specific individuals, it does not alter the fact that somebody engaged in the behavior described in the messages. Unless the inquiry in question focuses on the identity of a particular individual, then, any doubt as to specific names is largely irrelevant to the broader issue of the role played by American communists in Soviet espionage. There can of course be no doubt that, assuming their accuracy, these revelations are of enormous historical interest and value. But to suggest that as a result the government's treatment of American communists was totally justified amounts to a non sequitur because it completely ignores what I call the "act-response dissonance." Although a limited portion of the government's legal response focused on prosecutions for espionage or espionage-related activities, much of it did not. On the contrary, among the most noteworthy-and controversial-elements of the government's legal strategy during the period was the prosecution of the leaders of the CPUSA, not for espionage but rather for conspiracy to violate the Smith Act's criminal prohibitions on organizing the teaching or advocacy of the government's violent overthrow.

Commentators have been far too quick to treat these two forms of behavior as fungible. For example, Haynes and Klehr, by far the most important and perceptive anticommunist historians, assert that the information contained in the Venona documents at the time "lay behind the 1948 decision by the Truman administration to prosecute Eugene Dennis and other CPUSA leaders under the sedition sections of the Smith Act." They also treat the concepts of espionage and subversion as if the two were interchangeable forms of behavior. However, from the perspective of free speech theory, as well as political reality, there are enormous differences between the two types of activity. Espionage consists of the communication or transfer of classified or otherwise secret information or documents to foreign powers. In contrast, advocacy of unlawful conduct does not, by its nature, involve such transfers. Instead, its focus is an attempt to persuade free-thinking individuals to adopt a particular course of behavior.

In its narrowest and most direct form, at least, espionage is of little or no concern to the values sought to be fostered by the First Amendment's guarantee of free expression. Probably no theory of free expression would extend protection to this form of communication. The clandestine passage of classified information to agents of a foreign power fails meaningfully to advance the democratic process or further personal self-realization through intellectual development of either speaker or listener. Nor does espionage advance the state of public knowledge. Indeed, it is arguable that such activity should not even be deemed "speech" in the first place, but rather the use of communicative powers to perform a non-expressive act. To the extent any self-realization value is involved in the conduct of espionage, regulation of the act is focused primarily on its nonexpressive consequences.

(Continues...)

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Edition details

• Publisher: Stanford University Press
• Publication date: 2006
• Language: English
• ISBN 10: 0804755930
• ISBN 13: 9780804755931
• Binding: Paperback
• Edition number: 1
• Number of pages: 314