April 28, 2005

Book’s surprising twists keep alive McCarthy era debate

By Pat Vaughan Tremmel

A law professor looks through a First Amendment lens to sort through all the controversy, commentary and historical revisions surrounding the government’s prosecutions and blacklisting of communists in the 1940s and 1950s.

The surprising conclusions in his new book “The Logic of Persecution: Free Speech and the McCarthy Era” (Stanford University Press, August 10, 2005) are sure to reignite a debate that for some was put to rest following the recent revelations of the American Communist Party’s indisputable links to the Soviet Union.

The previously unrevealed Comintern and Venona documents made public in the 1990s turned upside down the widespread belief that Sen. Joe McCarthy and his colleagues unjustifiably picked on liberal innocents during the notorious House Committee on Un-American Activities hunt for communists, says the book’s author Martin Redish, the Louis and Harriet Ancel Professor of Law and Public Policy.

“The documents made startling and significant strides in setting the record straight, but they didn’t put the debate to bed,” says Redish, a nationally renowned expert on freedom of expression. “They certainly don’t free the government from its constitutional obligations and, because of that, from condemnation for its behavior during the McCarthy era.”

The government trampled on First Amendment rights in its prosecution of McCarthy-era communists, Redish concludes. “The punishments resulting from the Smith Act trials had to do with expression — not espionage — amounting to little more than thinly veiled viewpoint-based persecution.”

But the blacklists used to shun Hollywood entertainers and others suspected of being communists — sometimes devastating reputations and careers — are an entirely different story.

Redish argues that for the most part the blacklists were constitutionally protected, because private anti-communist organizations and individuals — not the government — made the choices both to shun those with communist affiliations and to urge others to do the same.

“While it is true most forms of governmental shunning would seriously threaten First Amendment rights by punishing individuals for beliefs, the exact opposite is true of private shunning,” he says.

Reshaping the modern historical debate about the threat posed by the American Communist Party, Redish’s book illustrates that the constitutional realities of free expression during the McCarthy era are far more complex than either the standard liberal or conservative positions on the issues might suggest.

Redish concedes that the left wing entertainment community of the period appears not to have been involved in any significant unlawful conduct and that the blacklists that targeted Hollywood and others included names of people who never had any affiliation with the American Communist Party.

But for the most part, the blacklists were accurate in identifying those with communist beliefs or affiliations, he says, and the private anti-communist organizations and individuals who did the shunning of them were exercising their First Amendment right of non-association.

The right of non-association allows those who seek to shun American communists — or Nazis or you-name-the group — to do so for no other reason than repugnance of ideological beliefs.

To reach his conclusions, Redish drew extensively from American historians’ insights about the Comintern and Venona documents.

The Comintern was the organization in the Soviet Union that controlled communist parties throughout the world, and when Soviet President Boris Yeltsin decided to open the documents to a select group of American historians, they revealed that the Communist Party in the United States was under the control of the Soviet Union, which decided disputes in the American party.

The so-called Venona documents are cablegrams that were sent by Soviet KGB agents to Moscow. Designed to be unbreakable, the codes were first broken in 1946, but, because of political reasons, only declassified in the 1990s.

The Venona documents showed that since 1942 the nation had been targeted by an intense and widespread Soviet espionage program that had utilized numerous professional Soviet agents and hundreds of Americans, often taken from the ranks of Communist Party members who were the most fiercely loyal to the party and its goals.

“The release of the Venona documents sent shockwaves through the American historical community,” says Redish. “They showed that the elite core of the American Communist Party was up to its neck in both conducting Soviet espionage and facilitating the conduct of Soviet espionage by Russian agents.”

But just as the historians who downplay the Venona documents miss the point, so too do the revisionists who smugly conclude that the government’s actions were vindicated. Ironically few American communists were prosecuted for espionage. “No scholar in his right mind would say that espionage is protected by the First Amendment,” Redish says.