The Communist Menace, the Supreme Court, and Academic Freedom

Date01 September 1961
Published date01 September 1961
Subject MatterArticles
San Diego State College
academic freedom may professors claim in the light of the
cold war? This question deserves careful consideration if the academic
profession is to take a realistic stand which it can defend without equiv-
ocation. The Communist threat to our free society was the chief, though some-
times unexpressed, concern in a number of recent significant Supreme Court
cases. It is back of the indifference with which the public greets the protests
against test oaths and disclaimers. Unless it is met, the demands for academic
freedom will fall on unsympathetic because uncomprehending ears.
Does communism represent a threat to our way of life? How shall we judge?
Shall we count the number of Communist party members, the number of Com-
munists in our legislatures, in our schools, on our judicial benches, in positions
of leadership in law, labor, business, and industry? Shall we count the convic-
tions for espionage, sabotage, and treason? Shall we measure the output of Com-
munist literature? Shall we analyze the content of films? Or shall we look
abroad? Is it Hungary which serves as the yardstick? Korea? Red China?
No doubt the &dquo;Communist menace&dquo; consists in the minds of the American
people of a m6lange of all these. It is Alger Hiss and the Rosenbergs, Soviet tanks
in Budapest, and Khrushchev’s blustering threats and boasts. But above all, it
consists of names - names of persons who have been named as Communists or
Communist-sympathizers or who have denied or admitted that they were such
or who have refused to assert or deny that they were such. The names are the
stock-in-trade of various &dquo;investigating&dquo; committees, the most prominent (and
notorious?) one being the House Un-American Activities Committee. The ra-
tionale for the naming is, of course, that to protect ourselves against the Com-
munists we need to know who they are.
Do we identify thus an enemy or only a dissident? If we are willing to grant
that communism is a doctrine calling for intellectual exploration like utilitarian-
ism or the quantum theory or Darwinism, then the entire problem takes on a
new light. If the Communist Party of the United States is a political association
organized to publicize a point of view, to gain converts, and to enact a program
just like the Democratic and Republican parties -
not a conspiracy to commit
illegal acts, then again the whole problem is radically recast. Unless we come to
grips with this issue, our protestations will seem to many to lack sincerity.
The U.S. Congress has officially declared the Communist Party of the
United States to be &dquo;in fact an instrumentality of a conspiracy to overthrow the
government of the United States.&dquo; The
Internal Security Act of 1950 asserts
that &dquo;there exists a world Communist movement which, in its origins, its develop-
ment, and its present practice, is a world-wide revolutionary movement whose
purpose it is, by treachery, deceit, infiltration into other groups ... and any other
Communist Control Act of 1954, 68 Stat. 775.

means deemed necessary to establish a Communist totalitarian dictatorship in
the countries throughout the world through the medium of a world-wide Com-
munist organization.&dquo; 2
In the United States, the Act goes on to say, the Communist &dquo;movement&dquo;
numbers &dquo;thousands of adherents, rigidly and ruthlessly disciplined.&dquo; 3 It awaits
the moment when the United States may be &dquo;so far extended by foreign engage-
ments, so far divided in counsel, or so far in industrial or financial straits,&dquo; that
overthrow of the government by force has a likelihood of meeting with success.
Meanwhile, it seeks converts by &dquo;an extensive system of schooling and indoctrina-
tion.&dquo; Hence, a &dquo;clear and present danger&dquo; to the security of the United States
exists. The legislation enacted is designed to prevent this conspiracy from ac-
complishing its purposes in the United States.
Some of the Supreme Court justices have spoken in similar vein.
Clark: [The Communist party] is not an ordinary political party.’
Harlan: That Congress has wide power to legislate in the field of Communist activity in
this Country ... is hardly debatable.... This power rests on the right of self-preservation....
Justification for its exercise in turn rests on the long and widely accepted view that the tenets
of the Communist Party include the ultimate overthrow of the Government of the United States
by force and violence.... This Court has recognized the close nexus between the Communist
Party and violent overthrow of government. To suggest that because the Communist Party may
also sponsor peaceable political reforms the constitutional issues before us should now be judged
as if that Party were just an ordinary political party from the standpoint of national security, is
to ask this Court to blind itself to world affairs which have determined the whole course of our
national policy since the close of World War II....5
Reed: We have no doubt that the doctrines and practices of Communism clearly enough
teach the use of force to achieve political control.’
]ackson: [The Communists] have no scruples against sabotage, terrorism, assassination, or
mob disorder.’
Vinson: Petitioners [leaders in the Communist party] intended to overthrow the Govern-
ment of the United States as speedily as the circumstances would permit. Their conspiracy to
organize the Communist Party and to teach and advocate the overthrow of the Government of the
United States by force and violence created a &dquo;clear and present danger&dquo; of an attempt to over-
throw the Government by force and violence.’
In a number of instances, the justices were content, for the judicial purposes
at hand, to work from Congress’ finding that the Communist party constituted
64 Stat. 987.
The World Almanac for 1940 reports 80,327 members of the Communist party. At the same
time it reports 966,630 members of the American Legion. In the presidential election of
1932 — the depression election — W. Z. Foster, the Communist candidate, received 55,000
votes while Norman Thomas, the Socialist candidate, was receiving 728,860 votes and F. D.
Roosevelt, the winner, 22 million. The 1949 World Almanac reports 20 million "active
members of the Communist Party" in the world. Germany, France, and Italy are reported
to have 2 million each; the U.S., 70,000. Subsequent editions of the World Almanac fail
to report membership figures for the Communist party. The New York Post for April 27,
1960 (p. 46) cites a figure of 7,000.
Watkins v. United States, 354 U.S. 178, 230 (1957).

Barenblatt v. United States, 360 U.S. 109, 127, 128 (1959).

Carlson v. Landon, 342 U.S. 524, 535-536 (1952).
Dennis v. United States, 341 U.S. 494, 564 (1951).

Ibid., pp. 516-17. Cf. also the statement by an unnamed federal district judge, quoted by Justice
Black in Carlson, op. cit. (dissenting), p. 550: "I am not going to turn these people loose if
they are Communists, any more than I would turn loose a deadly germ in this community."

a menace to our government.9 Justice Jackson in doing so, however, could not
refrain from commenting that &dquo;most of the information&dquo; on which Congress
rested its case against the Communist party &dquo;would be of doubtful admissibility
or credibility in a judicial proceeding.&dquo; 10 Moreover, he finds the chief source of
revolution in feelings of the masses, not in the conspiratorial actions of any party.
&dquo;No decision by this court,&dquo; he says &dquo;can forestall revolution whenever the exist-
ing government fails to command the respect and loyalty of the people and suf-
ficient distress and discontent is allowed to grow up among the masses.&dquo; 11
In contrast with this consensus among the congressmen and the justices,
Justice Douglas discounts the formidableness of American Communists. He
points out that they have never made a &dquo;respectable&dquo; showing in any election.
He refers to them as an &dquo;invisible&dquo; army, and characterizes that &dquo;army&dquo; as the
&dquo;most beset, and the least thriving of any fifth column in history.&dquo; 12
Granting, however, for the sake of further exploration of the issues, that
American communism is a threat to the American government, what measures
shall we take to protect ourselves against it? The Smith Act of 194013 sought
to protect us by making it a crime punishable by a $10,000 fine or ten years’
imprisonment knowingly to advocate, abet, advise, or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying the government by force
or violence or to join or organize a group which does any of these.
An appreciable number of Communists were convicted (114) and some
punished under this act. But in June 1957, in the Yates case, 14 the U.S. Supreme
Court called a...

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