The All-Russian Communist party became the All-Union Communist party, and Stalin sought to position the Soviet Union as the home base of a world revolution.. For nearly 50 years after th
Trang 1COMMON-LAW PLEADING The system of rules and principles that governed the forms into which parties cast their claims or defenses in order to set an issue before the court
The system prevailed in the COMMON-LAW COURTS and in many U.S states until it was replaced by statute with a procedure calledCODE PLEADINGin the nineteenth century Those states that do not have systems of codePLEADINGtoday follow the pleading procedures established by the rules of CIVIL PROCEDURE adopted for the federal district courts in 1938
During the twelfth and thirteenth centuries
a person with a grievance sought a WRIT from the king’s chief minister, the chancellor The writ ordered the DEFENDANT to submit to the plaintiff’s demands or to appear and answer the charge made against him or her Over a period of time, the format of the particular writs began to become standardized and were called FORMS OF ACTION There were different writs for different types of actions
The purpose of the writ was to assert the court’s authority to hear the dispute and to demand the presence of the defendant In this regard it corresponded to the modern SUMMONS ThePLAINTIFFthen had to state the claim against the defendant For the pleading to be valid the plaintiff had to use exactly those words permitted by the form of action selected Some forms of action, such as trespass, became immensely popular because they allowed more variation in the facts pleaded than other forms If a plaintiff selected a writ that did not fit the particular case the action was thrown out of court If there were no writs for some kinds of actions and the chancellor refused
to devise one then the aggrieved person could find
no relief at all in the royal courts
A defendant faced a similar array of established responses The defendant could, for example, deny the plaintiff’s right to legal relief even if the facts alleged were true Such a response was known as a demurrer A defendant could choose to enter a DILATORY PLEA, which argued against the court’s authority to hear that particular case rather than directly objecting to the plaintiff’s claim A third option was to enter a PLEA IN BAR which denied the plaintiff’s right to maintain the action at all An example of such a PLEA was a traverse, an assertion that some essential element of the plaintiff’s case was lacking or untrue Another plea in bar was CONFESSION AND AVOIDANCE which stated that
additional facts rendered the claim unenforce-able, even if the plaintiff’s facts were true Like the plaintiff, the defendant was limited to choosing a single position The alternative responses were mutually exclusive even though they were not necessarily contradictory For example, if the defendant pleaded a confession and avoidance he or she conceded the accuracy of the plaintiff’s version of the facts and would not be allowed to contest those facts The issue became the new facts that the defendant had asserted in order to avoid the effect of the plaintiff’s allegation The plaintiff had to argue against the newly introduced facts by entering a demurrer, a traverse,
or another confession and avoidance
Eventually the system of COMMON-LAW PLEADING fell into an established order that proceeded alternatively from plaintiff to de-fendant and back to plaintiff The plaintiff first stated the claim in a declaration and the defendant answered in a plea The plaintiff was permitted to respond with a replication Then came the defendant’s rejoinder, the plaintiff’s surrejoinder, the defendant’s rebut-ter, and the plaintiff’s surrebutter No distinc-tive names were given to any pleadings used beyond that stage
The system of common-law pleading even-tually became so encrusted with requirements and risks that actions were won or lost on the fine points of pleading rather than on the merits
of a party’s case The insistence on reducing every case to one claim and one answer created more problems than it solved As a result, in
1948 many states began enacting code pleading, while other states eventually adopted rules of pleading patterned on the rules of federal civil procedure
COMMON-LAW TRUST More commonly known as a business trust or a Massachusetts trust A business organization for investment purposes by which trustees manage and control property for the benefit of beneficiaries who are protected against personal liability for any losses incurred
COMMON PLEAS Trial-level courts of general jurisdiction One of the royal common-law courts in England existing since the beginning of the thirteenth century and devel-oping from the Curia Regis, or the King’s Court
Trang 2In the United States only Pennsylvania has
courts of COMMON PLEAS with the authority to
hear all civil and criminal cases In most states
courts of common pleas have been abolished
and their jurisdiction transferred to district,
circuit, or superior courts
For some time after the Norman Conquest of
England in 1066, parties seeking justice from the
king were greatly inconvenienced by the fact that
the king was constantly on the move and
frequently abroad Scholars have speculated that
the king was attempting to consolidate his power
and that feeding and financing the royal
house-hold could be accomplished only by continually
moving throughout the land Parties could
submit a dispute to a court held CORAM REGE,
before the king himself, only by pursuing the king
in his travels The barons finally forced the issue
with King John in 1215 when they insisted on the
following provision in theMAGNA CARTA:
“Com-mon Pleas shall not follow our court but shall be
held in some certain place.” That certain place
came to be Westminster, where some legal
business was already being handled by the end
of the twelfth century There the Court of
Common Pleas, also called Common Bench,
heard all REAL ACTIONS and common pleas—
actions between subjects that did not involve
royal interests It had no authority to hear
criminal matters which were the special
preroga-tive of the King’s Bench The Court of Common
Pleas consisted of a chief justice and four (later
five) associate justices Appeals and their
deci-sions were taken to the King’s Bench but later to
the Exchequer The court was consolidated with
the other high courts of England by the
JUDICATURE ACTSin the late nineteenth century
COMMON SCOLD
A person who frequently or habitually causes public
disturbances or breaks the peace by brawling or
quarreling
Scolding, which was an indictable offense
at COMMON LAW but is obsolete today, did not
involve a single incident but rather the repeated
creation of discord
COMMON STOCK
Evidence of participation in the ownership of a
corporation that takes the form of printed
certificates
Each share of COMMON STOCK constitutes a
contract between the shareholder and the
corporation The owner of a share of common stock is ordinarily entitled to participate in and
to vote at stockholders’ meetings He or she participates in the profits through the receipt of dividends after the payment of dividends on PREFERRED STOCK Shares of common stock are thePERSONAL PROPERTYof their holder
COMMUNIS ERROR FACIT JUS [Latin, common error makes law.] Another expression for this idea is “common opinion,” or communis opinio In ancient Rome, the phrase expressed the notion that a generally accepted opinion or belief about a legal issue makes that opinion or belief the law Judges have pointed out that universal opinion may also be universal error
Until the error is discovered, however, the belief continues to be the law The concept of communis opinio is not especially favored by contemporary U.S courts
COMMUNISM
A system of social organization in which goods are held in common
COMMUNISM in the United States is some-thing of an anomaly The basic principles of communism are, by design, at odds with the free enterprise foundation of U.S capitalism
The freedom of individuals to privately own property, start a business, and own the means of production is a basic tenet of U.S government, and communism opposes this arrangement
However, there have been, are, and probably always will be communists in the United States
As early as the fourth century B.C., Plato addressed the problems surrounding private ownership of property in the Republic Some early Christians supported communal principles, as did the German Anabaptists during the sixteenth-century religious Reformation in Europe
The concept of common ownership of goods gained a measure of support in France during the nineteenth century Shortly after the French Revolution of 1789, François-Noël (“Gracchus”) Babeuf was arrested and executed for plotting the violent overthrow of the new French government by revolutionary commu-nists Etienne Cabet inspired many social explorers with his Voyage en Icarie (1840), which promoted peaceful, idealized communi-ties Cabet is often credited with the spate
of communal settlements that appeared in
Trang 3mid-nineteenth-century North America Louis-Auguste Blanqui offered a more strident version
of communism by urging French workers during the 1830s to organize insurrections and establish a dictatorship for the purpose of reorganizing the government
Communism received, however, its first comprehensive intellectual foundation in 1848, when Germans KARL MARX and Friedrich Engels published The Communist Manifesto As technology increased and industry expanded in nineteenth-century Europe and America, it became clear that theGENERAL WELFAREof laborers was not improving Although the new democratic governments gave new freedoms to workers, or
“the proletariat,” the capitalism that came with democracy had created different means of OPPRESSION By drawing on existing theories of materialism, labor, and historical evolution, Marx and Engels were able to identify the reasons why, despite periodic drastic changes in government, common laborers had been doomed to abject poverty throughout recorded history
In the first chapter of The Communist Manifesto, Marx and Engels argued that human history was best understood as a continuing struggle between a small exploiting class (the owners of the means of production) and a larger exploited class (laborers in factories and mills who worked for often starvation wages) At any point in time, the exploiting class controlled the means of production and profited by employing
the labor of the masses In the capitalism that developed alongside democracy, Marx and Engels saw a progressive concentration of the powers of production placed in the hands of a privileged few Although society was producing more goods and services, the general welfare of the middle class, they believed, was declining According to Marx and Engels, this disparity or internal con-tradiction in capitalistic societies predicted capit-alism’s doom Over time, as the anticipated numbers of the middle class, or “bourgeoisie,” began to decrease, the conflicts between laborers and capitalists would sharpen, and social revolu-tion was inevitable At the end of The Communist Manifesto, Marx and Engels wrote that the transfer
of power from the few to the many could only take place by force Marx later retreated from this position and wrote that it was possible for this radical change to take place peacefully
The social revolution originally envisioned
by Marx and Engels would begin with a proletariat dictatorship Once in possession of the means of production, the dictatorship would devise the means for society to achieve the communal ownership of wealth Once the transitional period had stabilized the state, the purest form of communism would take shape Communism in its purest form would be a classless societal system in which property and wealth were distributed equally and without the need for a coercive government This last stage
of Marxian communism has as of the early 2000s never been realized in any government
Russia
In October 1917, VLADIMIR LENIN and Leon Trotsky led the Bolshevik party in a bloody revolution against the Russian monarch, Czar Nicholas II Lenin relied on violence and persistent aggression during his time as a Russian leader Although he professed to being
in the process of modernizing Marxist theory, Lenin stalled Marx’s communism at its transi-tional phase and kept the proletariat dictator-ship to himself
Lenin’s communist philosophy was desig-nated by followers as Marxist-Leninist theory in
1928 Marxism-Leninism was characterized by the refusal to cooperate and compromise with capitalist countries It also insisted upon severe restrictions on HUMAN RIGHTS and the exter-mination of actual and supposed political opponents In these respects, Marxist-Leninist
From 1950 to 1954,
Senator Joseph
McCarthy led highly
publicized hearings
that focused upon
alleged Communist
infiltration of the U.S.
government and
military.
AP IMAGES
Trang 4theory was unrecognizable to democratic
socia-lists and other followers of Marxist doctrine, and
the 1920s saw a gradual split between Russian
communists and other European proponents of
Marxian theory The Bolshevik party, with Lenin
at the helm, renamed itself the All-Russian
Communist party, and Lenin presided over a
totalitarian state until his death in 1924
JOSEPH STALIN succeeded Lenin as the
Com-munist party ruler In 1924, Stalin established
the Union of Soviet Socialist Republics (U.S.S.R.)
by colonizing land surrounding Russia and
placing the territories within the purview of the
Soviet Union The All-Russian Communist party
became the All-Union Communist party, and
Stalin sought to position the Soviet Union as the
home base of a world revolution In his quest for
worldwide communism, Stalin sent political
opponents such as Trotsky into exile, had
thousands of political dissidents tortured and
murdered, and imprisoned millions more
Stalin saw the Soviet Union through WORLD
WAR II Although it joined with the United States
and other democratic countries in the fight
against Nazism, the Soviet Union remained
strongly opposed to capitalist principles In the
scramble for control of Europe after World War
II, the Soviet Union gained power over several
Eastern European countries it had helped
liberate and placed them under communist
rule Bulgaria, Czechoslovakia, Hungary, East
Germany, Poland, and Romania were forced to
comply with the totalitarianism of Stalin’s rule
North Korea was also supported and influenced
by the Soviet Union More independent
com-munist governments emerged in Yugoslavia and
Albania after World War II
For nearly 50 years after the end of World
War II, the Soviet Union and the United States
engaged in a “cold war.” So named for the
absence of direct fighting between the two
superpowers, the COLD WAR was, in reality, a
bloody one The Soviet Union and the United
States fought each other through other
coun-tries in an effort to control the influence and
expansion of each other’s influence
When a country was thrown intoCIVIL WAR,
the Soviet Union and the United States aligned
themselves with the competing factions by
providing financial and military support They
sometimes even supplied their own troops
The United States and Soviet Union engaged in
war-by-proxy in many countries, including Korea, Vietnam, El Salvador, Nicaragua, Guatemala, and Angola
Cuba officially adopted communism in
1965 after Fidel Castro led a band of rebels in
an insurrection against the Cuban government
in 1959 Despite intense opposition by the United States to communism in the Western Hemisphere, Cuba became communist with the help of the Soviet Union
China
Communism was also established in China In
1917 Chinese students and intellectuals, in-spired by the Bolsheviks’ October Revolution, began to study and promote Leninist Marxism
China had been mired in a century-long civil war, and many saw Lenin’s brand of commu-nism as the solution to China’s internal problems In 1919, at the end of WORLD WAR I, China received a disappointing settlement from Western countries at the Versailles Peace Conference This outcome confirmed growing suspicion of capitalist values and strengthened the resolve of many Chinese to find an alternative basis for government
On July 1, 1921, the Chinese Communist party (CCP) was established Led by Chinese intellectuals and Russian advisers, the CCP initially embraced Russia’s model of commu-nism and relied on the organization of urban
By 1949, when this photograph was taken, Mao Zedong and the Chinese Communist Party had established Beijing as the capital
of China and declared the People’s Republic
of China as the new government.
AP IMAGES
Trang 5industrial laborers By 1927, CCP membership had grown from fewer than 500 in 1923 to over 57,000 This increase was achieved in large part because the CCP had joined with another political party, the Kuomintang (KMT) KMT leader Chiang Kai-shek and KMT troops eventually became fearful of CCP control of the state, and in July 1927, the KMT purged communists from its ranks CCP membership plummeted, and the party was forced to search for new ways to gain power
Throughout the late 1920s and early 1930s, the CCP sought to change its strategies The party was divided between urban, Russian-trained students and a wing made up of peasants led by Mao Zedong At the same time, the CCP was engaged in battles with the KMT over control of various cities, and several CCP attempts to capture urban areas were unsuccessful
Mao was instrumental in switching the concentration of CCP membership from the city to the country In October 1934, the CCP escaped from threatening KMT forces in southern China Led by Mao, CCP troops conducted the Long March to Yenan in the north, recruiting rural peasants and increasing its popularity en route In 1935, Mao was elected chairman of the CCP
Japan’s invasion of China in 1937 spurred a resurgence in CCP popularity The CCP fought Japanese troops until their surrender in 1945
The CCP then waged civil war against the KMT
With remarkable organization and brilliant military tactics, the CCP won widespread support throughout China’s rural population and eventually its urban population as well By
1949, the CCP had established Beijing as the capital of China and declared the People’s Republic of China as the new government
Chinese communism has been marked by a willingness to experiment In 1957, Chairman Mao announced China’s Great Leap Forward,
an attempt to advance industry within rural communes The program did not flourish, and within two years, Mao concluded that the Soviet Union’s emphasis on industry was incompatible with communal principles Mao launched an ideological campaign in 1966 called the Cultural Revolution, in which students were employed to convert opponents
of communism This campaign also failed, as too many students loyal to Mao carried out their mission with violent zeal
After Chairman Mao died in 1976, powerful CCP operatives worked to eliminate Jiang Quing, Mao’s widow, and three other party officials from the party This Gang of Four was accused of undermining the strength of the party through adherence to Mao’s traditional doctrines The Chinese version of communism placed enormous emphasis on conformity and uniform enthusiasm for all CCP policies With the conviction of the Gang of Four in 1981, the CCP sent a message to its members that it would not tolerate dissension within its ranks Also in 1981, the CCP Central Committee declared Mao’s Cultural Revolution a mistake
Hu Yaobang was named chairman of the CCP, and Deng Xiaoping was named head of the military These changes in leadership marked the beginning of CCP reformation The idoli-zation of Mao was scrapped, as was the ideal of continuous class struggle The CCP began to incorporate into Chinese society technological advances and Western production management techniques Signs of Western culture, such as blue jeans and rock and roll music, began to appear in China’s cities
In 1987, Hu Yaobang was removed as CCP chairman and replaced by Zhao Ziyang Zhao’s political philosophy was at odds with the increasing acceptance of Western culture and concepts of capitalism, and China’s urban areas began to simmer with discontent By May 1989, students and other reformists in China had organized and were regularly staging protests against Zhao’s leadership After massive demon-strations in Tiananmen Square in Beijing, the CCP military crushed the uprisings, executed dozens of radicals, and imprisoned thousands more
Thus, the CCP maintained control of China’s government At the same time, it made attempts to participate in world politics and business
The Demise of Communist States
In the late 1980s and early 1990s, several communist states transformed their govern-ments to free-market economies In 1985 Mikhail Gorbachev was named leader of the Soviet Union, and he immediately embarked on
a program to liberalize and democratize the Soviet Union and its Communist party By
1990, the campaign had won enough converts
to unsettle the power of communism in the
Trang 6Soviet Union In August 1991 opponents of
Gorbachev attempted to oust him from power
by force, but many in the Soviet military
supported Gorbachev, and the coup failed
The Soviet Union was formally dissolved in
December 1991 The republics previously
con-trolled by the All-Union Communist party held
democratic elections and moved toward
partic-ipation in the world business market Bulgaria,
Czechoslovakia, Hungary, East Germany, and
Poland also established their independence
Romania had conducted its own revolution by
trying, convicting, and executing its communist
dictator, Nicolae Ceausescu, at the end of 1989
Communist control of governments may be
dwindling, but communist parties still exist all
over the world China and Cuba have
commu-nist governments, and Spain and Italy have
powerful Communist parties In the United
States, though, Communism has had a difficult
time finding widespread support The justice
system in the United States has historically
singled out Communists for especially harsh
treatment For example,JOSEPH MCCARTHY, a U.S
senator from Wisconsin, led an
anti-Commu-nist campaign from 1950 to 1954 that disrupted
many lives in the United States
Communism in the United States
Anti-Communist hysteria in the United States
did not begin with Senator McCarthy’s
cam-paign in 1950 In Whitney v California, 274 U.S
357, 47 S Ct 641, 71 L Ed 1095 (1927),
Charlotte Whitney was found guilty of violating
the Criminal Syndicalism Act of California for
organizing the Communist Labor Party of
California Criminal syndicalism was defined
to include any action even remotely related to
the teaching of violence or force as a means to
effect political change
Whitney argued against her conviction on
several grounds: California’s Criminal
Syndical-ism Act violated her due process rights because
it was unclear; the act violated the EQUAL
PROTECTIONClause of theFOURTEENTH AMENDMENT
because it did not penalize those who advocated
force to maintain the current system of
government; and the act violated Whitney’s
FIRST AMENDMENTrights to free speech, assembly,
and association
The Court rejected every argument
pre-sented by Whitney JusticesLOUIS D.BRANDEISand
Oliver Wendell Holmes Jr., concurred in the
result They disagreed with the majority that a conviction for mere association with a political party that advocated future revolt was not violative of the First Amendment However, Whitney had failed to challenge the determina-tion that there was aCLEAR AND PRESENT DANGERof serious evil, and, according to Brandeis and Holmes, this omission was fatal to her defense
Forty-two years later, the decision in Whitney’s case was expressly overruled in Brandenburg v
Ohio, 395 U.S 444, 89 S Ct 1827, 23 L Ed 2d
430 (1969)
The political and social protests of the 1960s led to an increased tolerance of unconventional political parties in the United States However, this tolerance did not reach every state in the Union In August 1972, the Indiana State Election Board denied the Communist party
of Indiana a place on the 1972 general-election ballot On the advice of the attorney general of Indiana, the board denied the party this right because its members had refused to submit to a LOYALTY OATHrequired by section 29-3812 of the Indiana Code The oath consisted of a promise that the party’s candidates did not “advocate the overthrow of local, state or National Govern-ment by force or violence” (Communist Party v
Whitcomb, 414 U.S 441, 94 S Ct 656, 38 L Ed
2d 635 [1974])
The Supreme Court, following its earlier Brandenburg decision, held that the loyalty oath violated the First and Fourteenth Amendments
In Brandenburg, the Court had held that a statute that fails to differentiate between teach-ing force in the abstract and preparteach-ing a group for imminent violent action runs contrary to the constitutional rights of free speech and freedom
of association Although the Communist party missed the deadline for entering its candidates
in the 1972 general election, it succeeded in clearing the way for its participation in future elections
In the twentieth century communism gained a hold among the world’s enduring political ideologies and its popularity continues
to ebb and flow with the shifting distribution of wealth and power within and between nations
FURTHER READINGS Bentley, Eric, ed 2002 Thirty Years of Treason: Excerpts from Hearings before the House Committee on Un-American Activities, 1938–1968 New York: Nation.
Berlin, Isaiah 1996 Karl Marx: His Life and Environment.
New York: Oxford Univ Press.
Trang 7Gentry, Curt 2001 J Edgar Hoover: The Man and the Secrets New York: Norton.
McLellan, David 2007 Marxism after Marx 4th ed New York: Palgrave Macmillan.
Powers, Richard G 1987 Secrecy and Power: The Life of
J Edgar Hoover New York: Free Press.
Pozner, Vladimir 1991 Parting with Illusions: The Extraor-dinary Life and Controversial Views of the Soviet Union’s Leading Commentator New York: HarperCollins.
Rosenn, Max 1995 “Presumed Guilty.” Univ of Pittsburgh Law Review (spring).
Solzhenitsyn, Alexander 2007 The Gulag Archipelago: An Experiment in Literary Investigation New York: Har-perCollins.
——— 2005 One Day in the Life of Ivan Denisovich H.T.
Willets, trans New York: Farrar, Straus and Giroux.
CROSS REFERENCES Cuban Missile Crisis; Dennis v United States; First Amendment; Fourteenth Amendment; Freedom of Associ-ation and Assembly; Freedom of Speech; Marx, Karl Heinrich; McCarran Internal Security Act; Smith Act;
Socialism; Socialist Party of the United States of America;
Vietnam War.
COMMUNIST PARTY CASES TheCOMMUNIST PARTY CASESwere a series of cases during the 1950s in which the federal govern-ment prosecuted Communist Party members for conspiring to and organizing the party to advocate the overthrow of the U.S government
by force and violence
COMMUNISMbecame 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 con-verted into Soviet satellite regimes Meanwhile, Soviet propaganda professed the goal of spread-ing communist revolution around the world, and Russian leaders remained publicly commit-ted 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 anESPIONAGE ring that was allegedly responsible for accelerat-ing the Russian NUCLEAR WEAPONS program In
1950 communist North Korea, aided by Chi-nese 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 SenatorJOSEPH MCCARTHY, a Republi-can 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 com-munists The 1950s communistRED SCAREin the United States was marked by a series of free-wheeling 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 unsuccess-fully appealed his conviction and was granted CERTIORARIby 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 theBILL OF RIGHTSand 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 Party of the United States was to bring about the overthrow of its
Trang 8government 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
againstTERRORISMand violent revolution
Peace-able 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
defen-dants’ 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 aCLEAR AND PRESENT DANGERto the
government The Court based its rationale upon
the majority opinion inGITLOW 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
improba-bility, 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
possi-bility 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
The criminal conviction of Eugene Dennis, under the Smith Act, was upheld
by the Supreme Court
in 1951.
AP IMAGES
Trang 9Next 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
House Un-American Activities Committee
Between 1938 and 1969, the House
Un-American Activities
Commit-tee (HUAC) hunted political radicals In
hundreds of public hearings, this
con-gressional panel set out to expose and
punish citizens whom it deemed guilty of
holding “un-American” views—fascism
and COMMUNISM From government to
labor, academia, and Hollywood, the
committee aggressively pursued so-called
subversives It used Congress’sSUBPOENA
power to force citizens to appear before
it, holding them in contempt if they did
not testify HUAC’s tactics of scandal,
innuendo, and the threat of
imprison-ment disrupted lives and ruined careers
After years of mounting criticism,
Con-gress renamed HUAC in 1969 and finally
abolished it in 1975
In the late 1930s, HUAC arose in a
period of fear and suspicion The United
States was still devastated by the Great
Depression, and fascism was on the rise
in Europe Washington, D.C., feared
spies In early May 1938, Representative
Martin Dies (R-Tex.) called for a probe
of fascism, communism, and other
so-called un-American (meaning
anti-patriotic) beliefs The idea was popular
with other lawmakers Two weeks later,
HUAC was established as a temporary
committee, with Dies at its head
Because Chairman Dies was in
charge, the press referred to HUAC as
the Dies Committee The chairman had
ambitious goals At first, he set out to stop
German and Italian propaganda Early
investigations focused on two pro-Nazi
groups, the German-American Bund and
the Silver Shirt Legion But Dies had a partisan agenda as well An outspoken critic of Roosevelt, he wanted to discredit the president’sNEW DEALprograms Con-tending that the Federal Writers’ Project (a program to compile oral histories and travel guides) and Federal Theatre Project (employing out-of-work actors to help produce plays) were rife with Commu-nists, HUAC urged the firing of 3,800 federal employees In this atmosphere of conflict between the committee and the White House, the JUSTICE DEPARTMENT
found the numbers grossly exaggerated;
its own probe concluded that only 36 employees had been validly accused The committee’s first great smear ended with dismal results
HUAC’s limited success in its early years was largely due to its chairman’s political mistakes Besides alienating Roosevelt and the Justice Department, Dies made an even more powerful enemy
in J Edgar Hoover, director of the
FEDERAL BUREAU OF INVESTIGATION (FBI)
After Dies publicly criticized the director, Attorney GeneralROBERT H.JACKSONwent
on the attack, accusing HUAC of inter-fering with the FBI’s proper role Hoover himself saw to it that the turf battle was short-lived In 1941 Dies was quietly informed that the FBI had evidence of his accepting a bribe Although no charges were brought and Dies retained the title
of chairman until 1944, he conspicuously avoided HUAC’s hearings from that point on
HUAC grew in both power and tenacity after WORLD WAR II, for several
reasons A deterioration in U.S.-Soviet relations started the COLD WAR, a decades-long battle of words—and, as
in Korea and Vietnam, of bullets—in which Communism became identified
as the United States’ single greatest enemy Both bodies of Congress, the White House, the FBI, and numerous conservative citizens’ groups such as the John Birch Society rallied to the anti-Communist cause Moreover, HUAC had new leadership With Dies gone, Hoover was more than willing to assist with the committee’s investigations, which was fortunate, because no con-gressional committee had the resources available to the FBI When HUAC chairman J Parnell Thomas announced
in 1947 that the committee would root out Communists in Hollywood, he had nothing but hearsay to go on No Hollywood investigation would have taken place if Hoover, responding to Thomas’sPLEA, had not provided HUAC with lists of suspects and names of cooperative witnesses
Thus began a pattern of FBI and HUAC cooperation that lasted for three decades Hoover’s testimony before HUAC in March 1947 illuminated their common interest in driving the enemy into the open:
I feel that once public opinion is thoroughly aroused as it is today, the fight against Communism is well on its way Victory will be assured once Communists are
Trang 10is 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
identified and exposed, because
the public will take the first step
of quarantining them so they
can do no harm… This
Com-mittee renders a distinct service
when it publicly reveals the
diabolic machinations of sinister
figures engaged in un-American
activities
The FBI director’s prediction was
right: Quarantining of a sort did indeed
follow
The Hollywood probe marked a new
height for HUAC The committee
inves-tigated the film industry three times, in
1947, 1951–52, and 1953–55 The first
hearing produced the so-called
Holly-wood Ten, a group of screenwriters and
professionals who refused to answer
questions about whether or not they
were Communists Despite invoking
their FIRST AMENDMENT right to FREEDOM
OF SPEECH, they were subsequently
charged with contempt of Congress,
tried, convicted, and jailed for between
six months and one year In later HUAC
hearings, other film industry
profes-sionals invoked the Fifth Amendment—
the constitutional protection against
self-incrimination—and they too suffered
HUAC operated on the dubious premise
that no innocent person would avoid
answering its questions, and members of
Congress frequently taunted witnesses
who attempted to “hide,” as they said,
behind theFIFTH AMENDMENT Not
every-one subpoenaed was a Communist, but
the committee usually wanted each
person to name others who were, who
associated with, or who sympathized
with Communists Intellectual sympathy
for leftists was considered evil in itself;
such “dupes,” “commie symps,” and
“fellow travelers” were also condemned
by HUAC
These investigations had a tremen-dous effect Hollywood executives, fear-ing the loss of profits, created aBLACKLIST
containing the names of hundreds of actors, directors, and screenwriters who were shut out of employment, thus ending their careers In short time, television and radio did the same For subpoenaed professionals, an order to appear before HUAC presented a no-win situation If they named names, they betrayed themselves and others; if they did not cooperate, they risked their future Some cooperated extensively: the writer Martin Berkeley coughed up 155 names Some did so in order to keep working, but lived to regret it: the actor Sterling Hayden later described himself
as a worm in his autobiography
Wander-er Others, such as the playwright Lillian Hellman, remained true to their con-science and refused to cooperate The HUAC-inspired blacklist caused a mea-surable disruption to employment as well
as more than a dozen suicides
HUAC’s postwar efforts also trans-formed U.S political life In 1948, the committee launched a highly publicized investigation ofALGER HISS, a former high-ranking government official, on charges
of spying for the Soviet Union Hiss’s subsequent conviction onPERJURYhelped inspire the belief that other Communist spies must exist in federal government, leading to lavish, costly, and ultimately futile probes of theSTATE DEPARTMENTby HUAC and Senator JOSEPH R MCCARTHY HUAC had laid the groundwork for the senator’s own witch-hunt, a reign of unfounded accusation that came to be known as McCarthyism By 1950 McCarthyism so influenced U.S political life that HUAC sponsored the most sweeping anti-Communist law in history, the McCarren Act (50 U.S.C.A § 781 et seq.), which sought to clamp down on
the Communist party but stopped short
of making membership illegal The U.S Supreme Court ultimately stripped it of any meaningful force
HUAC came under fire in the late 1950s and early 1960s After turning its attention on labor leaders, the committee
at last provoked the U.S Supreme Court: the Court’s 1957 decision in Watkins v United States, 354 U.S 178, 77 S Ct
1173, 1 L Ed 2d 1273, overturned the contempt conviction of a man who refused to answer all of HUAC’s ques-tions, and, importantly, set broad limits
on the power of congressional inquiry Yet HUAC pressed on In 1959 an effort
to expose Communists in California schools resulted in teachers being fired and prompted some of the first public criticisms of the committee By the late 1960s, as outrage over theVIETNAM WAR
made publicDISSENTnot only feasible but widely popular, many lawmakers began
to see HUAC as an anachronism In 1969 the House renamed it the Internal Security Committee The body continued
on under this name until 1975, when it was abolished and the House Judiciary Committee took over its functions (with far less enthusiasm than its progenitors) HUAC’s legacy to U.S law was a long, relentless campaign against personal liberty Its members cared little for the constitutional freedoms of speech or association, let alone constitutional safe-guards against SELF-INCRIMINATION Much
of its work would not have been possible without the steady assistance of the FBI, whose all-powerful director Hoover (1895–1972) died shortly after the com-mittee’s heyday had ended HUAC is remembered in the early twenty-first century, along with Hoover and McCarthyism, as characterizing the worst abuses of federal power during the cold war