When a state officially declares war on another state, it unofficially declares war on a second front: domestic dissidents. The dynamics of the latter can be seen by tracking one of the most powerful phenomena of the last century: the Red Scare(s). Anti-communist hysteria followed World War I and did not cease until the fall of the Soviet Union in 1991. One law epitomized the dynamics: The Alien Registration Act of 1940.
Most often called the Smith Act, after Congressman Howard Smith (D-Va.), the Alien Registration Act is a federal statute that required all adult non-U.S. residents to register with the Immigration and Naturalization Service; it also made it a crime to advocate the overthrow of any U.S. government, including a “State, Territory, District or Possession thereof, or the government of any political subdivision therein.”
It said that anyone who “knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government” was liable both to fines and imprisonment for a maximum of 20 years. The prohibited methods of advocacy were printing, publishing, editing, issuing, circulating, selling, distributing, or the public display of such advocacy. The Smith Act targeted anyone who “organizes or helps or attempts to organize any society, group, or assembly of persons” who encouraged the overthrow of “government by force or violence; or [who] becomes or is a member of, or affiliates with” such groups.
Signed into law by Franklin Roosevelt, the statute negated the constitutional rights of freedom of speech and freedom of assembly.
Nullifying constitutional rights
Briefly, those in power created a hysteria and then manipulated the resulting public panic in order to cement their authority.
The aftermath of World War I shook America to its political core, and the ideological enemies were clearly identified: communists, anarchists, and radical labor organizations with which they associated. The 1917 revolutions in Russia had emboldened communists elsewhere to organize and to ally with trade unions and radical workers’ groups. Powerful movements emerged, especially in America and Europe, where they threatened the status quo through labor unrest and an occasional bomb.
The American government responded with the Palmer Raids. In November 1919 and January 1920, under the authority of Attorney General A. Mitchell Palmer, the Department of Justice conducted a series of raids to arrest and deport more than 500 foreign communists and anarchists. That was the first Red Scare and a stepping stone to power for 24-year-old J. Edgar Hoover, whom Palmer had appointed to head an investigation of radical groups. A rabid anti-communist, Hoover was director of the FBI when the Smith Act was passed.
Other measures and agencies rode the Red Scare wave into power; loyalty oaths became common and the House Un-American Activities Committee was formed (1938). Under the headline “Aliens to Begin Registering Tuesday,” the New York Times (August 25, 1940) explained, “The Alien Registration Act was merely one of many laws hastily passed in the first spasm of fear engendered by the success of fifth columns in less fortunate countries. Suddenly the European war seemed almost at our doors, and who could tell what secret agents were already at work in America?”
The Smith Act stood out from the flood “of many laws” in one regard, however. It was the first federal statute since the Alien and Sedition Acts of 1798 to turn the mere expression of political ideas into a crime.
First they came for the socialists …
A series of trials between 1949 to 1958 became the most infamous episode under the Smith Act. In an attempt to eliminate the Communist Party of the United States (CPUSA), communism itself was criminalized and 140 leaders were eventually indicted.
The CPUSA leaders were not the first radicals tried under the Smith Act, however. In 1941, leaders of the Socialist Workers Party (SWP) were convicted at the urging of Roosevelt, largely because they opposed America’s possible entry into World War II. The SWP was Trotskyite, which made it an ideological enemy of the CPUSA, which was Marxist; moreover, unlike the SWP, the CPUSA supported a Soviet-American effort against Nazi Germany.
Thus, the national CPUSA refused to support the SWP and sometimes even expressed agreement with its prosecution. In his autobiography, Advocate and Activist: Memoirs of an American Communist Lawyer (1993), John Abt wrote, “Little did we know that in the postwar period the Smith Act would become the primary legal weapon to attack our Party and imprison its leaders. It wasn’t until 1949, with the first Smith Act indictments of the Communist party, that I read the documents against the … Trotskyists and saw that the cases against the two organizations were virtually identical. The Communists had made a terrible mistake in not defending the SWP.”
During America’s participation in World War II, authorities did not pursue the CPUSA, because they wanted to maintain good relations with the Soviet Union, which was then an ally. In 1945, however, FBI Director Hoover began collecting information on the CPUSA and produced a massive report that recommended the criminal prosecution of its leaders. In 1948, Hoover encouraged Harry Truman to use the Smith Act to do so. The political atmosphere favored Hoover.
The CPUSA was declining in power but its commitment to the now-estranged Soviet Union fed into the Cold War narrative that Truman was selling. His legacy, the Truman Doctrine (1947), was a militaristic foreign policy that sought to counter the ideological and geopolitical expansion of communism. A communist domestic threat would rally public acceptance and bipartisan support. In short, it was not so much CPUSA’s popularity that made it a threat to be eliminated; it was the federal government’s need for a target and rallying point.
In 1948, the Department of Justice charged twelve CPUSA leaders with violation of the Smith Act. (One was not tried, owing to illness.) The charges were “advocating the violent overthrow of the government” and “belonging to an organization that did the same.” No acts of violence were alleged. Rather, the prosecution argued that the CPUSA advocated the violent overthrow of the government and it introduced works promoted by the CPUSA as evidence; for example, the Communist Manifesto, with its call for violent revolution, was introduced. Thus the defendants were accused of advocating violent revolution by implication as well as organizing to promote it.
When the defense pointed to language in the CPUSA constitution that rejected violent revolution and advocated a peaceful transition to communism, the prosecution produced undercover informants and disillusioned communists as rebuttal witnesses. One of them testified that the constitution’s language was a legal ploy meant to protect members from prosecution.
The unconstitutionality of the Smith Act was another of several defenses presented. A defense motion to dismiss read that “this statute (a) violates the First Amendment to the United States Constitution, (b) invades the freedom of association of political and personal rights guaranteed by the Ninth and Tenth Amendments to the Constitution.”
The trial, which lasted ten months, was the longest federal trial in U.S. history to date and one of the most controversial in American history. Outside the courtroom, there was an air of public hysteria, with radicals protesting in behalf of the defendants and violent counter protests. Four hundred policemen were assigned to keep the peace on the trial’s opening day.
Part of the frenzy was whipped up by the sensationalized coverage provided by an overwhelmingly hostile media that functioned as megaphones for political officials. Part of it sprang from world events; for example, the Soviet Union tested its first nuclear weapon. A few voices with perspective spoke out, however. An article in the New York Times (July 22, 1948) opened, “Henry A. Wallace, Third Party Presidential candidate, today assailed the New York indictments of top Communist leaders as an unconstitutional attempt by the Truman Administration and ‘bipartisans’ to create fear in order to stay in power.” Interesting enough, the SWJ offered the defendants its solid support.
In the end, ten defendants were fined $10,000 each; they each received five-year prison sentences, with four of them forfeiting their bails by absconding. The eleventh defendant was sentenced to only three years because of his distinguished war record. The five defense attorneys (six if you count a defendant who acted as his own) were cited for contempt and spent prison time ranging from 30 days to six months. Two were disbarred; that dissuaded other attorneys from defending communists in the coming years.
In 1951, an appeal of the original decision reached the U.S. Supreme Court in the form of Dennis v. the United States; Eugene Dennis was one of the ten defendants who received a five-year term. In a 6-2 decision, with Justices Hugo Black and William O. Douglas dissenting, the court confirmed the conviction. In his dissent, Black noted that the petitioners were not charged with attempting or acting to overthrow the government or any act. No matter how the indictment had been worded, Black called it “a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold … the Smith Act authorizing this prior restraint [as] unconstitutional on its face….”
More trials of CPUSA members
In 1957, the U.S. Supreme Court heard Yates v. United States. The case concerned 14 lower officials of the CPUSA who had been convicted under the Smith Act. This time, the court ruled 6 to 1 that radical and reactionary speech was protected by the First Amendment unless it created “a clear and present danger.”
In 1958, Junius Scales became the last CPUSA official to be convicted under the Smith Act and the only one convicted after the Yates ruling. The conviction came because Scales did advocate political violence and taught martial arts. Another Supreme Court judgment upheld the conviction.
By the time persecution of the CPUSA ceased, 144 people had been indicted and 105 convicted with cumulative sentences of 418 years imposed. Fewer than half served jail time and many of the convictions were overturned. In her book The Age of McCarthyism: A Brief History with Documents, Ellen Schrecker observed that “prosecutors relied on the testimony of professional ex-Communists and undercover agents. Many of these people lied. Over the years, the unreliability of the government’s witnesses was to invalidate many convictions, as appellate judges increasingly began to raise questions about the veracity of the professional informers.”
Nevertheless, Hoover had realized his goal of destroying the CPUSA, which never recovered. Truman had succeeded in silencing opponents of the Cold War and in cementing support for it. He was so successful that the Cold War raged until 1991 with the collapse of the Soviet Union.
The persecution of the CPUSA serves as a cautionary tale on the use of state force against ideas. A primary engine driving such legal prosecutions is war: the political use of its aftermath, the justification of additional wars, and the continuation of military policies even in peacetime. The Red Scare(s) allowed a war atmosphere to spread through the 20th century, from 1919 to 1991.
The Palmer Raids led to the Smith Act, which ushered in the most infamous expression of the Red Scare(s): McCarthyism. In the early 1950s, Sen. Joseph McCarthy, presided over the American version of Soviet show trials, all of which hinged on the question, “Are you now, or have you ever been, a member of the Communist party?”
Then, in 1954, McCarthy made two fatal mistakes. In televised interrogations, the senator turned his focus on the U.S. Army, including decorated war heroes. The attorney representing those under attack finally asked McCarthy the famous question, “At long last, have you no sense of decency left?” The first mistake was to attack the military, which the Red Scare was meant to strengthen. The second was to publicly display the vicious inner workings of the Red Scare that did not respect innocence, due process, or decency. The suppression of political dissent worked only if the public believed it was justified and moral. The collapse of McCarthyism demonstrated the only force strong enough to counter a campaign of fear whipped up by the politically powerful: the common decency of average people.
This article was originally published in the December 2017 edition of Future of Freedom.