The Cold War and the New Red Scare

Anticommunism was a persistent theme in twentieth-century political life, one that- became all the more pronounced as the nation moved to a position of world power. For example, John Bricker, the Republican vice-presidential candidate in 1944, charged that "Communist forces have taken over the New Deal and will destroy the very foundations of the Republic." ¹² Red hysteria gripped the nation during the Cold War. The House Committee on Un-American Activities invoked the Smith Act to investigate anyone even suspected of being a Communist. President Harry S. Truman, who replaced Roosevelt in 1945 and won election on his own three years later, undertook on political grounds to purge the government of Communists, and in 1946 he issued Executive Order 9835 creating a Federal Employee Loyalty Program that permitted government officials to screen more than 2 million federal employees for political deviance.

The Red Scare and Senator Joseph McCarthy of Wisconsin became synonymous during the early 1950s. In 1950 McCarthy initiated a four-year reign of terror, when he proclaimed in a speech in Wheeling, West Virginia that he had a list of 205 card- carrying Communists who "are still working and shaping policy in the State Department." ¹³ McCarthy then hauled a long list of prominent and not-so-prominent Americans before his Senate investigating committee, charging them with being Communists or communist sympathizers. With Americans dying on a distant battlefield against the communist armies of North Korea and China, McCarthy ran roughshod. His campaign finally collapsed in the mid-1950s under the weight of unfounded accusations and peace on the Korean peninsula.

The hysteria of the Red Scare posed questions about the balance to be struck between the government's authority to protect itself and the individual's freedom of association and expression. In 1948, under the authority of the Smith Act, the Truman administration won the indictment and conviction of twelve national leaders of the Communist party of the United States, including its General Secretary, Eugene Dennis. A lengthy and bombastic trial followed in New York City, with all twelve convicted of conspiring to advocate the overthrow of the government by force and violence. The defendants subsequently appealed to the Supreme Court in Dennis v. United States ( 1951), but without success. The justices affirmed the conviction and the constitutionality of the Smith Act, relying on a transformed version of Holmes's once- libertarian doctrine of clear and present danger. Chief Justice Vinson, writing for a six- to-two majority, made it into a clear and probable danger test, observing along the way that "[t]he government had to protect itself against communism." ¹⁴ The First Amendment, Vinson concluded, certainly did not mean that "before Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal awaited." ¹⁵ Justices Black and Douglas dissented, correctly claiming that Vinson's opinion repudiated the true meaning of the clear and present danger test, a position that they also unsuccessfully pressed in cases involving state loyalty programs.

Congress strengthened the anticommunist attack with the McCarran Act of 1950. This measure required Communists to register with the government, revoked passports of those suspected of being Communists, and established provisions for setting up concentration camps for subversives in the event of a national emergency. The law also

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created the Subversive Activities Control Board (SACB) and gave it extensive powers to administer the loyalty program.

The Supreme Court gradually whittled down the board's authority, although as late at the mid-1960s it was still an effective force. As the Cold War menace receded, the Court became increasingly bold. In Albertson v. SACB ( 1965), the justices ruled that the board could not force individuals to register under the McCarran Act without engaging in an unconstitutional violation of the Fifth Amendment right against self- incrimination. Two years later, the Court threw out another provision that made it a crime for any member of a communist-action organization "to engage in any employment in any defense facility." ¹⁶"The statute quite literally establishes guilt by association alone," the Court observed, "without any need to establish that an individual's association poses the threat feared by the Government in proscribing it."¹⁷

The Court also broadened the base of First Amendment rights outside of the area of national security. Following the Dennis decision, the Court consistently avoided the precise language of the clear and present danger test, with some justices believing that the test protected speech too little and others that it protected it too much. In its place, they substituted the concept of overbreadth as a restraint on government. In Brandenburg v. Ohio ( 1969), for example, the Court considered the constitutionality of an Ohio state criminal syndicalism statute that was used to prosecute a leader of the Ku Klux Klan for advocating terrorism. The Court struck the Ohio law down as too vague in its definition of what constituted criminal activity. The breadth of the statute was overly restrictive, because it limited advocacy as well as the right of assembly.

The Broadening of Civil Liberties

The overbreadth doctrine was an important advance in the area of First Amendment liberties because it was oriented to the current political reality. Judges had to make a determination about what was happening, not about what would happen in some remote future. The doctrine also gave the Court significant room to maneuver in resolving First Amendment disputes, and increasingly the justices took an expansive view, so much so that critics of the Court claimed that they were assigning protection of the First Amendment to activities that the framers of the Constitution would not have countenanced. The Court's decisions in matters of libel, the press, obscenity, the rights of the accused, and privacy all became highly controversial.

Date: 2015-01-29; view: 704