COLD WAR JURISPRUDENCE: THE LIMITS OF DISSENT I. INTRODUCTION: A New Meaning for Clear and Present Danger--what happens to evolving standards of minority rights and emerging jurisprudence of highest scrutiny for civil liberties when U.S. society and culture are gripped in the crisis of the Cold War and the panic of McCarthyism? II. The Age of McCarthyism 1. Heresy, yes; conspiracy, no!--talk about Sidney Hook's essay by that title and its meaning and implications--suggest how the concept is tailored to legislation through the Smith Act (1940) and the McCarren Act (1950) (a Democratic Representative from Virginia, a Democratic Senator from Nevada)--The Smith Act and its simultaneous criminalization of advocacy--speech, writing, assembly--as well as action; repeats the terms and conditions of the World War I espionage and sedition acts; then adds criminal penalties for advocating knowingly in any form--speech, print, teaching--the overthrow of any govt. in the U.S. through force and violence or by assassination of any govt. officer; criminalize the organization of any society or assembly that advocates, as above, the violent overthrow of government; or to affiliate knowingly with any such group, society, or assembly of persons. The McCarren Act and criminalizing membership in the Communist--requiring party members to register with the government, and the double bind: party membership a crime; perjury a crime. 2. An Age of Suspicion: Spies and traitors everywhere--Alger Hiss, the Rosenbergs, Julius and Ethel, Judith Coplon, diplomats, the State Department, and the loss of China. 3. The Politics of Conservatism: How Republicans use red-baiting to fight the New Deal, and how HST himself feeds the flames of hysteria. As early as Mar. 21, 1947 Truman issued an executive order #9835, establishing loyalty review boards to determine the faithfulness of all federal employees--then in April 1951 executive order #10241 established the principle of dismissal from federal service for "reasonable doubt." At the same time, Truman's Attorney General had created a list of socalled subversive groups, all of which and all of whose members were to register with the Justice Department under the terms of the McCarren Act; and a Subversive Activities Control Board was established to implement the system; in 1961 a 5-4 Supreme Court majority was to find the McCarren Act constitutional and the SACB a legitimate agency of government. The Eisenhower administration was to intensify the search for subversives in federal jobs. Executive Order #10450 of April 1951 created the new category of "security risk," under which 1500 federal employees were terminated and 6000 resigned. 4. McCarthyism in Practice: the Soviet A-bomb (1949), the Korean War (1950), loyalty oaths and congressional investigations--explain what happened in practice to what sorts of people: J. Robert Oppenheimer and theoretical physicists; Zero Mostel, Howard DaSilva, and Hollywood's red hunt; ordinary workers at GE, Westinghouse, and other firms doing defense work; my former colleague and the FBI; academia in general--Fifth Amendment jurisprudence and why it became such an issue--Reds and Rats; martyrs and informers--go rent a couple of videos, Woody Allen's "The Front" and Robert DeNiro, "Guilty, By Suspicion." III. The Law and Civil Liberties 1. Federal Trial Courts: Kangaroo Justice in Foley Square--the Communist leader trials; first indicted under terms of the Smith Act in 1948; a trial that runs from Jan. to Oct. 1949, one in which the presiding judge, Harold Medina, harangues and threatens the defense attorneys (after the verdict, he cites them for contempt and six go to federal prison and suffer disbarment); hanging juries, and repeating the World War I experience in peacetime. 2. Dennis vs. the U.S. (1951): tell students a little about the personal and family history of Eugene V. Dennis, his wife Peggy, and their sons Gene and Timur--How Justice Vinson defines clear and present danger, and then distinguishes between advocacy and discussion--first amendment protects discussion not advocacy--how can a government allow people to advocate revolution: "If 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." And then observe how Vinson distinguishes between heresy and conspiracy: "The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders...felt the time had come for action, coupled with the inflammable nature of world conditions...It is the existence of the conspiracy which creates the danger...Their conspiracy to organize the Communist party and to teach and advocate the overthrow of the Government...by force and violence created a "clear and present danger." 3. Black, Douglas, and the Case for Free Speech: Black a first amendment absolutist--does not deny that free speech and advocacy of radicalism, revolution, and dangerous ideas raises perils, but Black answers, "To the Founders of this Nation...the benefits derived from free speech were worth the risk." Vinson, to him, had rendered the "clear and present danger" test meaningless; under Vinson's application and construction of the First Amendment it "is not likely to protect any by those 'safe' or orthodox views which rarely need its protection." Douglas who is not a First Amendment absolutist deals much more directly with Vinson's argument--petitioners, he points out, were not charged with a conspiracy to overthrow the government; Instead were charged with a conspiracy to form a party and institutions to teach and advocate the overthrow of our government--charged with having people read the classics of Marxism-Leninsim-Stalinism and advocating the ideas therein presented--"if the books themselves are not outlawed," asks Douglas, "if they can lawfully remain on library shelves, by what reasoning does their use in a classroom become a crime?" Next he turns to the clear and present danger test, and asks: How it can be said that there is a clear and present danger that this advocacy will succeed is, therefore, a mystery. In America [Communists] are miserable merchants of unwanted ideas; their wares remain unsold....Neither prejudice nor hate nor senseless fear should be the basis of this solemn act. Free speech should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent. IV. Conclusion: The Sad Legacy of HST--second raters staff the federal courts.