Communist Party Cases
Communist Party Cases
The Communist Party Cases were a series of cases during the 1950s in which the federal government prosecuted Communist Party members for conspiring and organizing the party to advocate the overthrow of the U.S government by force and violence.
Communism became a central concern in U.S. law following World War II, which ended with the Soviet Union occupying much of Central and Eastern Europe, after having liberated those areas from Nazi occupation. An ally of the United States for most of the war, Soviet President Joseph Stalin promised to hold democratic elections in the European countries he occupied. However, the governments in most of those countries were eventually converted into Soviet satellite regimes. Meanwhile, Soviet propaganda professed the goal of spreading communist revolution around the world, and Russian leaders remained publicly committed to this doctrine.
American leaders were concerned that talk of a global communist revolution was more than idle propaganda. In addition to the Iron Curtain of Soviet-style communism that had descended over much of Europe, China, another U.S. ally during World War II, was overtaken by communist revolution in 1949. That same year the Soviet Union announced that it had successfully detonated its first atomic bomb, ending a short-lived, U.S. nuclear monopoly. Shortly after this revelation, British scientist Klaus Fuchs and Americans julius and ethel rosenberg were implicated in an Espionage ring that was allegedly responsible for accelerating the Russian Nuclear Weapons program. In 1950 communist North Korea, aided by Chinese troops and Russian advisors, invaded South Korea, starting what would be a three year conflict.
Communist hysteria in the United States was ratcheted up another notch on February 9, 1950, when Senator joseph mccarthy, a Republican senator from Wisconsin, ushered in the era of McCarthyism by delivering his famous speech at Wheeling, West Virginia, where he accused the U.S. State Department of harboring communists. The 1950s communist Red Scare in the United States was marked by a series of freewheeling investigations conducted by several congressional committees, the most notorious of which was the House Committee on Un-American Activities (HUAC), which summoned before it thousands of Americans who were asked questions delving into personal beliefs, political affiliations, and loyalties.
The first Communist Party Case, Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), was decided at the height of McCarthyism. Eugene Dennis was one of a number of persons convicted in federal district court for violation of the Smith Act, which proscribed teaching and advocating the violent and forcible overthrow of the U.S. government. 18 U.S.C.A. 2385. He and the others were alleged to have engaged in a conspiracy to form the Party of the United States in order to teach and advocate the overthrow of the United States government by force and violence. Such conduct was in direct contravention with the provisions of the Smith Act. Dennis unsuccessfully appealed his conviction and was granted certiorari by the Supreme Court.
In an opinion written by Chief Justice frederick vinson, the Court focused its review on two issues: whether the particular provisions of the Smith Act violated the First Amendment and the Bill of Rights and whether the sections in question were unconstitutional because they were indefinite in describing the nature of the proscribed conduct. The Court relied upon the determination of the Court of Appeals that the objective of the communist party of the united states was to bring about the overthrow of its government by force and violence. From this perspective, it reasoned that Congress was empowered to enact the Smith Act, which was designed to safeguard the federal government against Terrorism and violent revolution. Peaceable and lawful change was not proscribed, however. The power of Congress to so legislate was not in question, but the means it used to do so created constitutional problems.
The defendants argued that the statute inhibited a free and intelligent discussion of Marxism-Leninism, in violation of the defendants' rights to free speech and press. The Court countered that the Smith Act prohibits advocacy, not intellectual discussion, which is admittedly protected by the First Amendment. It continued, however, that the rights given by the First Amendment are not absolute and unqualified, but must occasionally yield to other concerns and values in society.
The Court decided that the clear-and-present-danger test, first formulated by the Supreme Court in 1919 in schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470, applied to the case and set out to explain its applicability. The forcible and violent overthrow of the government constituted a substantial enough interest to permit the government to limit speech that sought to cause it. The Court then reasoned that "If [the] Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required." The likelihood of success or success itself is not necessary, provided the words and proposed actions posed a clear and present danger to the government. The Court based its rationale upon the majority opinion in gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."
Concerning the issue of indefiniteness, the Court concluded that since the defendants were found by the jury to have intended the forcible overthrow of the government as soon as the circumstances permitted, there was no need to reverse their convictions because of the possibility that others might, in the future, be unaware of its proscriptions. When possible "borderline" cases arise, the Court would at that time strictly scrutinize the convictions.
The next major Communist Party case was Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), in which the Supreme Court reviewed the appeal of 14 Communist Party leaders who also had been convicted under the Smith Act. However, the Court in Yates reversed the convictions of all 14 defendants, distancing itself from Dennis on two grounds.
The Yates defendants were charged with conspiring to organize the Communist Party to teach members the duty of overthrowing the U.S government. The prosecution offered proof that the conspiracy had started in 1940, the year the Smith Act was enacted, and continued through 1951. The defendants had countered with evidence that the Communist Party had disbanded after 1940 and was not reformed until 1945. Since the government offered no proof that the Yates defendants had helped reform the party in 1945, the defendants argued that prosecution had failed to prove the defendants were guilty of organizing the party. The Court found that the word organize was ambiguous and agreed with the defendants that under the Smith Act the word organize meant only the creation of a new organization and not the continuing participation in a party that disbands and later reforms.
Next the Court examined the portion of the indictment that charged the defendants with conspiring to advocate the duty and necessity of overthrowing the U.S. government by force and violence. The indictment was defective, the Court found, because it failed to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of immediate action to that end. The First Amendment protects the former type of speech, the Court emphasized, but not the latter. The government has the right to prohibit speech that advocates its forcible overthrow by a subversive political party that is sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. The government had failed to prove that the Communist Party U.S.A. presented this type of threat, the Supreme Court concluded.
Several factors account for the Supreme Court's retreat from the Dennis opinion in Yates. Decided in 1957, Yates came at a time when both international and domestic tensions had subsided. The Korean War ended in 1953, the Senate had censured Joe McCarthy in 1954, President Eisenhower attended a cordial Geneva summit conference with new Soviet leadership in 1955, and HUAC investigations had precipitously tapered off. Time had also given Americans the opportunity to more accurately assess the minimal threat posed to national security by the Communist Party in the United States. Equally important, the Supreme Court was under new leadership. Chief Justice Vinson died in 1953 and was replaced Earl Warren, a chief justice who began a legacy of greatly expanding the scope of civil liberties in the United States.
Twelve years after Yates, the Warren Court reiterated the First Amendment distinction between lawful subversive advocacy in the abstract and unlawful present incitement. In Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), the Court reversed the conviction of a Ku Klux Klan leader under a state statute that prohibited advocacy of crime and violence as a necessary means to accomplish political reform. Ohio Rev. Code Ann. § 2923.13. The Court held that a state could not forbid advocacy of force or violence except where such advocacy is directed to producing imminent lawless action and is likely to incite or produce such action.
Belknap, Michal R. 1977. Cold War Political Justice: The Smith Act, the Communist Party and American Civil Liberties. Westport, Conn.: Greenwood.
Konvitz, Milton R. 1966. Expanding Liberties: Freedom's Gains in Postwar America. New York: Viking.