Free Speech: What Difference?

By Steve Weissman, Reader Supported News

10 August 15

o you believe in the overthrow of the U.S. government by force or violence?” asked the Southern judge, a white man, looking down at the elderly civil rights activist, a black woman. She thought for a moment. “Your Honor,” she answered in her grandmotherly voice. “By force.”

Jack Radey, an eternally youthful Berkeley Bolshevik, tells the joke with delight. But the laughter recalls a grim reality, a coordinated government effort until 1958 to smash the Communist Party (CPUSA). Whatever one thinks of American communists, and I am a long-time critic, this was an assault on freedom of speech, press, and assembly more severe and systemic than any of the horrific attacks from Senator Joseph McCarthy.

Taking advantage of hysteria over the country's impending entry into World War II, in June 1940 the U.S. Congress overwhelmingly passed the Alien Registration Act. President Franklin Delano Roosevelt sponsored the bill, while Howard W. Smith, an anti-labor Democratic congressman from Virginia, led its passage and gave it his name. The Smith Act initially targeted suspected anarchists, fascists, and communists, but soon fixated on “the commies.”

Along with requiring all foreign-born nationals to register, the Smith Act imposed up to 20 years behind bars and hefty fines for anyone who, with intent “prints, publishes, edits, issues, circulates, sells, distributes, publicly displays 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.”

Read the words. They could not more blatantly violate the plain language of the First Amendment, that “Congress shall make no law … abridging the freedom of speech, or of the press; or of the people peaceably to assemble.” No one should be surprised. The Supreme Court has long ignored or “balanced away” the First Amendment to justify government squelching of unpopular speech, especially in time of war, hot or cold.

Equally dispiriting was the inconstant behavior of the American Civil Liberties Union. From its founding in 1920, the ACLU had stalwartly defended and greatly popularized the right to express unpopular opinions. But they began to waver in the late 1930s, when the House Un-American Activities Committee (HUAC) called ACLU activities into question. Anti-communist ideologues on the ACLU board – including the Socialist Party’s longtime leader Norman Thomas – took the threat as an opportunity to push through a resolution making anti-communism official ACLU policy, which in later years the group publicized in its legal pleadings and public statements.

The resolution caused Harry F. Ward to resign as chair, and the board then fired one of the ACLU’s founders, labor leader Elizabeth Gurley Flynn. It isn’t clear whether her “sin” in the board’s eye was joining the Communist Party in the 1930s in opposition to the Nazis, or in refusing to quit the party after the Hitler-Stalin Pact in 1939.

Nor did the communists help their cause by applauding the Smith Act prosecution of rival Trotskyists in Minneapolis in 1941, much as Trotsky and his followers had earlier cheered HUAC attacks on the CP. The communists similarly launched a national campaign to deny free speech to the racist anti-Semite Gerald L.K. Smith. Whatever the faction, the old left of those years too often dismissed free speech as nothing more than “bourgeois civil liberties.”

Now officially anti-communist, the ACLU condemned the Smith Act and – with a visible lack of zeal – continued to defend those prosecuted under it. The group also strengthened pre-existing ties to J. Edgar Hoover and his FBI, with some staff members acting as informants. “The ACLU’s greatest failure during the cold war, was turning a blind eye on the FBI,” wrote historian Samuel Walker. “At best, it simply refused to pursue allegations of FBI abuse. At worst, it was an active apologist.”

This hurt because J. Edgar Hoover, the FBI Director, was campaigning in government to use the Smith Act to smash the CPUSA, much as he had helped to smash the Industrial Workers of the World, the Wobblies, after World War I. The Justice Department followed his lead in July 1948, indicting Eugene Dennis and 11 other top communist leaders. The trial began the following year at Manhattan’s Foley Square courthouse and lasted nine stormy months. The CP staged a political defense that rallied thousands of its own troops in almost daily demonstrations, while the administration and its amen chorus in the mass media used the hullabaloo to increase fear of a communist “fifth column” and help sell Truman’s Cold War policies. Given the temper of the times, nothing the communists did or did not do seems likely to have changed the political dynamic.

The trial itself was anything but fair. Many non-communist observers found Judge Harold Medina obviously biased against the defendants and their lawyers. The prosecution never proved with hard evidence that the party actually advocated a violent overthrow of the government other than perhaps in theory, but the jury followed Judge Medina’s lead in finding all the defendants guilty. Medina sentenced one of them, a distinguished war veteran, to three years in prison, and all the others to 5 years. He also imprisoned their lawyers for contempt of court and subjected them all to disbarment proceedings.

Upholding the convictions and contempt charges, the Supreme Court offered absolutely no Constitutional challenge to the Smith Act’s restriction of speech, press, or assembly. The ruling in Dennis v. United States was, in the opinion of the ACLU’s founder and longtime executive director Roger Baldwin, “the worst single blow to civil liberties in our history.”

The Justice Department saw the ruling more as a green light to begin prosecuting lesser communist leaders around the country. The defendants found it almost impossible to find lawyers willing to run the risk of taking their case, while the government went to great lengths to deprive the defendants of the funds to pay for their defense.

This civil liberties shambles went on until 1958, when a largely new Court under Chief Justice Earl Warren overturned a Smith Act conviction in Yates vs. United States. The justices left the law standing, but ruled that it did not prevent advocating the violent overthrow of government as an abstract idea, but only as part of some imminent plot.

With a couple of exceptions, the decision in Yates put a stop to the Smith Act prosecutions. But it also opened the way for some in my generation to take a wonderfully awkward and extremely effective view of civil liberties.

We started by simply refusing to leave the protection of free speech, press, and assembly to lawyers, judges, and a Constitution whose meaning the Supreme Court rewrites at will. Civil liberties is a birthright we best defend with public education and massive civil disobedience. When in the 1960s students at Berkeley and other universities demanded almost complete free speech on campus, and were willing to fight to get, we got it. When we dramatically insisted that free speech be extended to suspected Communists or anyone else, we severely shredded the non-stop effort by supposedly liberal university and government officials to redbait us. When mostly black civil right activists took to the streets and highways, we won the beginning of a campaign we must now continue to ensure that black lives matter. When enough young people burned their draft cards in public, we held a war-making government in check. But when protesters willingly allowed themselves to be herded into wire-enclosed “free speech zones,” the right to protest lost most of its punch.

One measure of the determination we exhibited is really quite funny. Back in 1919, Justice Oliver Wendell Holmes wrote a unanimous opinion for the Supreme Court upholding the conviction of anti-war draft resistors in Schenck vs. the United States. Two of his phrases became free speech gospel of the 1960s. Both were taken out of context. Neither held any force of Constitutional law, not even in the Yates decision. People still misquote his words, making them much stronger than he intended. In our version:

Government should not restrict speech unless it creates a “clear and present danger” – and the lack of restriction should permit almost any expression unless it crosses the line into falsely shouting “Fire!” in a crowded theater.

In 1969, the Supremes came close to catching up, ruling in the Brandenburg decision that government cannot forbid the advocacy of law-breaking or violence unless it is likely to produce “imminent lawless action.” But, with the supposed war on terror, Washington now stifles the speech of suspected Muslim jihadis, and popular objections are few and far between. So much for our written Constitution and our “core American values.”

A veteran of the Berkeley Free Speech Movement and the New Left monthly Ramparts, Steve Weissman lived for many years in London, working as a magazine writer and television producer. He now lives and works in France, where he is researching a new book, "Big Money and the Corporate State: How Global Banks, Corporations, and Speculators Rule and How to Nonviolently Break Their Hold."

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