COMMUNIST PARTY CASES

COMMUNIST PARTY CASES

The Communist Party Cases were a series of cases during the 1950s in which the federal government prosecuted Communist Party members for conspiring and organizing the party to advocate the overthrow of the U.S government by force and violence.

COMMUNISM became a central concern in
U.S. law following WORLD WAR II, which ended
with the Soviet Union occupying much of Cen-
tral and Eastern Europe, after having liberated
those areas from Nazi occupation. An ally of the
United States for most of the war, Soviet Presi-
dent JOSEPH STALIN promised to hold demo-
cratic elections in the European countries he
occupied. However, the governments in most of
those countries were eventually converted into
Soviet satellite regimes.Meanwhile, Soviet prop-
aganda professed the goal of spreading commu-
nist revolution around the world, and Russian
leaders remained publicly committed 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 success-
fully 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 an ESPIONAGE ring that was
allegedly responsible for accelerating the Rus-
sian NUCLEAR WEAPONS program. In 1950 com-
munist North Korea, aided by Chinese 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 Senator JOSEPH MCCARTHY, a Republican
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 commu-
nists. The 1950s communist RED SCARE in 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 unsuccessfully appealed his conviction and was granted certiorari by 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 the BILL OF RIGHTS and whether the sec-
tions 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 COMMUNIST PARTY OF THE
UNITED STATES was to bring about the over-
throw of its government 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 govern-
ment against TERRORISM and violent revolution.
Peaceable 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 advo-
cacy, not intellectual discussion, which is admit-
tedly 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-ANDPRESENT-
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 a clear and present danger to the
government. The Court based its rationale upon
the majority opinion in GITLOW 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 improbability,
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 possibility
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.
Next 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 is 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
summit conference with new Soviet leadership
in 1955, and HUAC investigations had precipitously
tapered off. Time had also given Americans
the opportunity to more accurately assess
the minimal threat posed to national security by
the Communist Party in the United States.
Equally important, the Supreme Court was
under new leadership. Chief Justice Vinson died
in 1953 and was replaced EARL WARREN, a chief
justice who began a legacy of greatly expanding
the scope of civil liberties in the United States.
Twelve years after Yates, the WARREN COURT
reiterated the First Amendment distinction
between lawful subversive advocacy in the
abstract and unlawful present incitement. In
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), the Court reversed
the conviction of a KU KLUX KLAN leader under
a state statute that prohibited advocacy of crime
and violence as a necessary means to accomplish
political reform. Ohio Rev. Code Ann. § 2923.13.
The Court held that a state could not forbid
advocacy of force or violence except where such
advocacy is directed to producing imminent
lawless action and is likely to incite or produce
such action.

FURTHER READINGS
Belknap, Michal R. 1977. Cold War Political Justice: The
Smith Act, the Communist Party and American Civil
Liberties.Westport, Conn.: Greenwood.
Konvitz, Milton R. 1966. Expanding Liberties: Freedom’s
Gains in Postwar America. New York: Viking.

CROSS-REFERENCES
Freedom of the Press; Freedom of Speech.