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Weissman writes: "aking 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."

J. Edgar Hoover. (photo: AP)
J. Edgar Hoover. (photo: AP)

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."

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner


A note of caution regarding our comment sections:

For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

+6 # lsd 2015-08-10 16:41
I'm sure the FBI has infiltrated the CPUSA to the point where they own it. The "by force" answer was hilarious.
+3 # ericlipps 2015-08-11 10:52
I've read that at ne point in the fifties, more than half the membership of the U.S. Communist Party consisted of informers who had joined at the request of the FBI.
+8 # Dongi 2015-08-10 17:56
Free Speech has to be fought for and won by each generation. That is why it is so inportant. Government is government whether it is the king or the president.
+3 # randyjet 2015-08-10 23:14
The Trotskyists did not applaud HUAC at any time or place, unlike the CPUSA. It is ludicrous to suggest that the SWP applauded the Smith Act in being used against the CP since the SWP was the FIRST party attacked. It seems like this writer is a red diaper baby who has not done his homework or even thought much. Even after the CP became the victims, the SWP continued to denounce the Smith Act and HUAC and there are many articles in the press where the SWP fought with Ruether over his support for the witchhunt Reuther thought that since the CP acted so badly in regards to the SWP case, that they were getting what they deserved.
+18 # Old4Poor 2015-08-10 23:47
I lived through this. My Dad, who was our State's Chairman of the Civil Rights Congress, was arrested under the Smith Act when I was 9 years old. The FBI did everything they could to destroy our family, including going to my mother's jobs and getting her fired over and over again so we had no money to pay our bills or survive let alone pay legal fees or arrange bail for my Dad.

My father, who was a pacifist, had committed the great crime of speaking out on the need for Black Americans to have equal rights in all areas, including housing and job opportunities.

And, here we are so many years later, and that battle still goes on.

The slights over and over again to me and my sister were horrendous. We were shunned, beaten up, once I was trapped in a vacant lot and stoned, and on a Girl Scout field trip to the Bremerton Ship Yards we were told we could not go in with other Scouts and had to wander in a strange City for several hours,waiting for our ferry boat ride back to Seattle.

My father was convicted, largely for refusing to name names of others who might have been at suspected meetings, and finally the charges and conviction were thrown out by a higher court.

I still live with so many emotional scars from that time.
+15 # Dongi 2015-08-11 02:00
The FBI under Hoover was beneath contempt. My deepest apologies to you on behalf of one citizen for the difficult youth that you experienced. Your Dad is a hero in every sense of that word.
+4 # Old4Poor 2015-08-11 10:45
Thank you. That is the first time anyone has said that to me. It is bringing tears.

Yes, I have always thought my Dad was a hero and so right in what he stood for - no war, no prejudice, equal rights for all.

I am so proud of him.

The day my Dad was arrested my Mom told her boss, and he was fine with it. Three days later she was fired with the comment, "When you told me your husband had been arrested by the FBI I thought he was just a dope dealer, or something."

She finally went to work under her maiden name, and in pre-computer days it took the FBI time to find her and have a talk with her new employers.

Many years later my Dad was fired while selling World Book Encyclopedia because a customer had recognized his name and called and complained to the company.

The ability to impoverish people who dissent is an ugly side of how this system works.
+2 # Dongi 2015-08-12 03:07
Let me get this straight. The FBI called your mother's bosses so they could get her fired? That is outrageous using deliberate poverty to control dissent. Could't you have sued the government? But, then, you probably couldn't afford a lawyer. Your Dad was fired too. Why this makes Hoover a criminal and the entire FBI a tool of a tyrannical government. Worth bearing in mind for the stormy days ahead.
+2 # Old4Poor 2015-08-12 15:00
The FBI did not call my Mom's bosses, they came in person. They were "advising" that a potentially dangerous person was employed there.

This went on until my Mom worked for Bekins Moving and Storage when Claude Bekins went into a rage and threw them out of his office.

Perhaps he was a teamster. Who knows, but it made our life easier from that point on as Mom had an income and we could pay for the lights and eat.
+3 # economagic 2015-08-11 06:51
I apologize to the estimable Mr. Weissman, who has once again filled in some gaps and corrected some misunderstandin gs for the majority of us who have forgotten much of the distorted history we once learned. But since many people learned this incorrectly if at all, I will point out that the movement known as the "Wobblies" was the INDUSTRIAL (not International) Workers of the World.

Mr. Weissman most certainly knows this.
It is a common error that I myself make from time to time, even though I have above my desk the IWW calendar in honor of Joe Hill in the one hundredth year since his execution, from the Hungarian Literature Fund of the IWW. I became aware of this remarkable and useful tool for learning and teaching labor history through the late, great economist Fred Lee.

Professor Lee was tireless in his efforts to spread awareness and understanding of heterodox economics, and to mentor young economists such as Stephanie Kelton, now Chief Economist for the Senate Budget Committee. Learn more about Dr. Kelton, who founded the New Economic Perspectives blog, at stephaniekelton .com, and order your IWW calendar for 2016 at
+4 # Old4Poor 2015-08-11 10:50
"I Dreamed I Saw Joe Hill last night, alive as you and me"

Great song. Check out the full lyrics.

The labor movement has been the great emancipator for so many workers who were badly exploited and cheated by big business.

The current move to do away with unions has dire consequences for all workers, not just union jobs. Looking at you, Scott Walker.
+3 # economagic 2015-08-11 20:07
Amen, Sister!
+6 # Citizen Mike 2015-08-11 09:23
Why was the Smith Act not used against Cliven Bundy and his armed gang? Why is it not being used against white supremist and antigovernment agitators and gun hoarders?
+4 # tclose 2015-08-11 10:13
Excellent point, Mike.
+3 # REDPILLED 2015-08-11 10:21
Because only those who challenge the god capitalism are 'worthy' of prosecution and persecution.

Any threats to the capitalist system, at home or abroad, are threats to the Ruling Class, and will NOT be tolerated!
+3 # Old4Poor 2015-08-11 10:51
Did you forget? We are not allowed to refer to the danger posed to this country by right-wing extremists. It hurts their feelings.
+1 # Old4Poor 2015-08-12 15:02
And, noting that some of them are in Ferguson with giant guns and not confronted by the police at all. But, then they are white men.
+1 # ericlipps 2015-08-11 10:54
Quoting Citizen Mike:
Why was the Smith Act not used against Cliven Bundy and his armed gang? Why is it not being used against white supremist and antigovernment agitators and gun hoarders?

Why do you think?
+4 # Citizen Mike 2015-08-11 11:01
I am not sure why our present administration lost its nerve and failed to deal with this armed tax revolt the way George Washington did Whiskey Rebellion. It appears that the government agencies involved were intimidated by a gang of armed terrorists and did not use the option of invoking the superior force of a real military campaign.

But the Communists, on the other hand, never did anything but talk about rebellion and never stockpiled guns or formed a militia, so they were easy to pick on.
+1 # arquebus 2015-08-11 11:21
Would you be kind enough to define "gun hoarder".
+4 # Citizen Mike 2015-08-11 16:44
Quoting arquebus:
Would you be kind enough to define "gun hoarder".

OK, I am talking about people who are stockpiling military-style weapons and ammo. I am not sure what they are expecting to need to defend themselves against, or if they are planning their own race war or revolt against the government. I know some of them are also stockpiling food and digging tunnels in their backyard. Beats me what they are scared of.

The hoodlum army that turned out to the Bundy ranch are gun hoarders of one sort, and I suspect there are other kinds out there, too.

I am not speaking of those who collect historic artifacts. I think it would be fun to own a lever-action Winchester or a broom-handle Mauser. But stocking up on modern military equipment for some expected use is different.
+3 # Citizen Mike 2015-08-11 16:52
Oh, let me explain further that I did not just say "gun hoarders," I was specific: People who are "white supremist and antigovernment agitators and gun hoarders." Those are the ones the FBI should be watching more carefully. Against whom the Smith Act could be invoked.

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